Of the diuersities of common wealthes or gouernement. CHAP. I.

THey that haue written heretofore of Common wealthes, haue brought them into thrée most sim­ple and speciall kindes or fashions of gouernement. The first where one alone doth gouerne, is called of the Gréekes [...],Monarchia. the se­cond, where the smaller number, commonly called of them [...],Aristocratiae. and the thirde where the multitude doth rule [...].Democratia. To rule▪ is vnderstoode to haue the highest and supreme authoritie of commaundement. That part or member of the common wealth is saide to rule which doth controwle, correct, and direct all other members of the common wealth. That part which doth rule, define and commaund according to the forme of the gouernement, is taken in euerie common wealth to be iust and lawe: As a rule is alway to be vnderstoode to be straight, and to which all workes be to be confor­med, [Page 2] and by it to be iudged: I doe not meane the Lesbi­ans rule which is conformed to the stone: but the right rule whereby the Artificer and the Architect doe iudge the straightnesse of euerie mans worke, he to be recko­ned to make his worke perfectest, who goeth néerest to the straightnesse.

What is iust or Lawe in euerie com­mon wealth or gouernement. CHAP. 2.

NOw it doth appeare, that it is profitable to euerie common wealth (as it is to euery thing generally and particularly) to be kept in her most perfect estate. Then if that part which doth beare the rule, doe com­maund that which is profitable to it, and the commaun­dement of that part which doeth rule on that sort, is to be accepted in euery common wealth respectiuely to be iust (as we haue said before): it must néedes follow, that the definition which Thrasimachus did make, that to be iust which is the profite of the ruling and most strong part (if it be meant of the Citie or common wealth) is not so farre out of the way,Iust. (if it be ciuilly vnder­stoode) as Plato would make it. But as there is profita­ble and likelyhoode of profite, so there is right and like­lyhoode of right. And aswell may the ruling and Soue­raigne part commaund that which is not his profite, as the iust man may offend (notwithstanding his iust and true meaning) when he would amend that which is amisse, and helpe the common wealth, and doe good vnto it. For in asmuch as he attempteth to doe con­trarie to the Lawe which is alreadie put, he therefore by the lawe is iustly to be condemned, because his do­ing is contrarie to the lawe and the ordinaunce of that part which doth commaunde.

An other diuision of common wealthes. CHAP. 3.

BUt this matter yet taketh an other doubt: for of these maner of rulinges by one, by the fewer part, & by the multitude or greater number, they which haue more methodically & more distinctly and perfectly writ­ten vpon them, doe make a subdiuision: and diuiding eche into two, make the one good and iust, and the other euill and vniust: as, where one ruleth, the one they call a king or [...], the other [...], a tyrant: where the few­er number, the one they name a gouerning of the best men [...] or Remp. optimatum, the other of the vsur­ping of a few Gentlemen, or a few of the richer & stron­ger sort [...], or Paucorum potestatem: and where the multitude doth gouerne, the one they call a common wealth by the generall name [...], or the rule of the people [...], the other the rule or the vsurping of the popular or rascall and viler sort, because they be moe in number [...].

Example of chaunges in the maner of gouernment. CHAP. 4.

IN common wealthes which haue had long continu­ance, the diuersities of times haue made all these ma­ners of ruling or gouernemēt to be seene: As in Rome: kinges Romulus, Numa, Seruius: tyrantes, Tarquinius, Sylla, Caesar: the rule of best men, as in time when the first Consuls were: and the vsurping of a few, as of the Senators after the death of Tarquinius, and before the succession of the Tribunate, and manifestly in the De­cemuirate, but more perniciously in the Triumuirate of Caesar, Crassus, and Pompeius: and afterwarde in the Triumuirate of Octauius, Antonius, and Lepidus: The common wealth and rule of the people, as in the expul­sing [Page 4] of the decemuiri and long after, especially after the law was made, either by Horatius, or (as some would haue it) Hortentius, quod plebs sciuerit, id populum teneat. And the ruling and vsurping of the popular and rascall, as a little before Sylla his reigne, and a little before Caius Caesars reigne. For the vsurping of the rascality cā neuer long endure, but necessarily breedeth, & quickly bringeth forth a tyrant. Of this, hath Athens, Syracuse, Lacede­mon and other old auncient ruling Cities had experi­ence, and a man neede not doubt but that other commō wealthes haue followed the same rate. For the nature of man is neuer to stand still in one maner of estate, but to grow from the lesse to the more, and decay from the more againe to the lesse, till it come to the fatall end and destruction, with many turnes and turmoyles of sick­nesse & recouering, seldome standing in a perfect health, neither of a mans bodie it selfe, nor of the politique bo­die which is compact of the same.

Of the question what is right and iust in euerie common wealth. CHAP. 5.

SO when the common wealth is euill gouerned by an euill ruler and vniust (as in the three last named which be rather a sickenesse of the politique bodie than perfect & good estates) if the lawes be made, as most like they be alwayes to maintaine that estate: the question remaineth whether the obedience of them be iust, and the disobedience wrong: the profit and conseruation of that estate right and iustice, or the dissolution: and whe­ther a good and vpright man, and louer of his countrie ought to maintaine and obey them, or to seeke by all meanes to abolish them, which great & hautie courages haue often attempted: as Dion to rise vp against Dio­nysius, Thrasibulus against the xxx. tyrantes, Brutus and [Page 5] Cassius against Caesar, which hath bin cause of many commotions in common wealthes, whereof the iudge­ment of the common people is according to the euent and successe: of them which be learned, according to the purpose of the doers, and the estate of the time then pre­sent. Certaine it is that it is alwayes a doubtfull and hasardous matter to meddle with the chaunging of the lawes and gouernement, or to disobey the orders of the rule or gouernment, which a man doth finde alrea­die established.

That common wealthes or gouernements are not most commonly simple but mixt. CHAP. 6

NOw although the gouernements of common weal­thes be thus diuided into three, and cutting ech in­to two, so into sixe, yet you must not take that ye shall finde any common wealth or gouernement simple, pure and absolute in his sort and kinde, but as wise men haue diuided for vnderstandinges sake and fantasied iiii. sim­ple bodies which they call elementes, as fire, ayre, wa­ter, earth, and in a mans bodie foure complexions or temperatures, as cholericke, sanguine, phlegmatique, and melancolique: not that ye shall finde the one vtter­ly perfect without mixtion of the other, for that nature almost will not suffer, but vnderstanding doth discerne ech nature as in his sinceritie: so seldome or neuer shall you finde common wealthes or gouernement which is absolutely and sincerely made of any of them aboue na­med, but alwayes mixed with an other, and hath the name of that which is more and ouerruleth the other al­wayes or for the most part.

The definition of a king and of a tyrant. CHAP. 7.

WHere one person beareth the rule they define that to be the estate of a king,Rex. who by succession or ele­ction commeth with the good will of the people to that gouernement, and doth administer the common wealth by the lawes of the same and by equitie, and doth seeke the profit of the people as much as his owne.Tyrannus. A tyraunt they name him, who by force commeth to the Monarchy against the will of the people, breaketh lawes alreadie made at his pleasure, maketh other without the aduise and consent of the people, and regardeth not the wealth of his communes but the aduancement of him selfe, his faction, & kindred. These definitions du containe three differences: the obtaining of the authoritie, the maner of administration thereof, & the butte or marke where­unto it doth tend and shoote. So as one may be a tyrant by his entrie and getting of the gouernement, & a king in the administration thereof. As a man may thinke of Octauius, and peraduenture of Sylla. For they both cōming by tyranny and violence to that state, did seeme to trauaile verie much for the better order of the common wealth, howbeit either of them after a diuerse maner. An other may be a king by entrie, & a tyrant by admi­nistration, as Nero, Domitian, and Commodus: for the empire came to them by succession, but their admi­nistration was vtterly tyrannicall, of Nero after fiue yeares, of Domitian and Commodus very shortly vpon their new honour. Some both in the comming to their Empire, and in the butte which they shoot at, be kings, but the maner of their ruling is tyrannicall: as many Emperous after Caesar and Octauius, and many Popes of Rome. The Emperours claime this tyrānicall pow­er by pretence of that Rogation or plebiscitum, which Caius Caesar or Octauius obtained, by which all the peo­ple [Page 7] of Rome did conferre their power & authority vnto Caesar wholly.

The Pope groundeth his from Christ (cui omnis pote­stas data est in coelo & in terra) whose successor he preten­deth to be: yet the generall Councels make a strife with him, to make the Popes power either Aristocratian or at the least legitimum regnum, & would faine bridle that absolutam potestatem. Some men doe iudge the same of the kinges of Fraunce, and certaine Princes of Italie and other places, because they make & abrogate lawes and edictes, lay on tributs and impositions of their own will, or by the priuate Counsell and aduise of their friends and fauorites only, without the consent of the people.Populus. The people I call that which the word populus doth signifie, the whole bodie and the three estates of the common wealth: and they blame Lewes the xi. for brin­ging the administration royall of Fraunce, from the lawfull and regulate raigne, to the absolute and tyran­nicall power and gouernement. He himselfe was wont to glory and say, he had brought the crowne of Fraunce hors de page, as one would say out of Wardship.

Of the absolute king. CHAP. 8.

OTher do call that kinde of administration which the Greekes do call [...], not tyranny, but the absolute power of a king, which they would pretende that euerie king hath, if he would vse the same. The o­ther they call [...] or the Royall power regu­late by lawes: of this I will not dispute at this time. But as such absolute administration in time of warre when all is in armes, and when lawes hold their peace because they cannot be heard, is most necessarie: so in time of peace, the same is verie daungerous, aswell to him that doth vse it, and much more to the people vpon [Page 8] whom it is vsed: whereof the cause is the frailtie of mans nature, which (as Plato saith) cannot abide or beare long that absolute and vncontrowled authoritie, without swelling into too much pride and insolencie. And therefore the Romances did wisely, who woulde not suffer any man to keepe the Dictatorship aboue fire monethes,Dictatorship. because the Dictators (for that time) had this absolute power, which some Greekes named a lawfull tyrannie for a time. As I remember, Aristotle, (who of all writers hath most absolutely & methodically trea­ted of the diuision and natures of common wealthes) maketh this sort of gouernmēt to be one kind of kings. But all commeth to one effect: for at the first, all kinges ruled absolutely, as they who were either the heades & most ancient of their families, deriued out of their own bodies, as Adam, Noa, Abraham, Iacob, Esau, reigning absolutely ouer their owne children and bondmen as reason was▪ or else in the rude world amongest barba­rous & ignorant people, some one then whom God had endewed with singular wisedome to inuent thinges ne­cessary for the nourishing and defence of the multitude, and to administer iustice did so farre excell other, that all the rest were but beastes in comparison of him, and for that excellencio willingly had this authoritie giuen him of the multitude, and of the Gentils when he was dead & almost when he was yet lyuing, was taken for a God, of others for a Prophet. Such among the Iewes were Moses, Iosua, & the other iudges, as Samuel, &c. Romulus & Numa amongest the Romances, Lycurgus and Solon & diuerse other among the Greekes, Zamol­xis among the Thracians, Mahomet among the Ara­bians: And this kinde of rule among the Greekes is called [...],Tyrannis. which of it selfe at the first was not a name odious: But because they who had such rule at the first, did for the most part abuse the same, wared insolent & proude, vniust, and not regarding the common wealth, [Page 9] committed such actes as were horrible and odious, as killing mē without cause, abusing their wives & daugh­ters, taking and spoyling all mens goods at their plea­sures, and were not shepheardes as they ought to be, but rather robbers and deuourers of the people, wherof some were contēners of God, as Dionysius, other while they lyued like diuils, and would yet be adored & accom­pted for Gods, as Caius Caligula and Domitian: that kind of administration and maner also, at the first not euill, hath taken the signification & definition of the vice of the abusers, so that now both in Greeke, Latine, and English a tyrant is counted he, who is an euill king, & who hath no regard to the wealth of his people, but see­keth onely to magnifie himselfe and his, and to satisfie his vicious and cruell appetite, without respect of God, of right or of the law: because that for the most part they who haue had that absolute power haue beene such.

Of the name king & thadministration of England. CHAP. 9.

THat which we call in one syllable king, in english the olde english men and the Saxons from whom our tōgue is deriued to this day calleth in two syllabes cy­ning, which whether it commeth of cen or ken which be­tokeneth to know & vnderstād, or can, which betokeneth to be able or to haue power, I can not tell. The parti­ciple absolute of thone we vse yet, as when we say a cū ­ning man, Vir prudens aut sciens: the verbe of thother as I can do this, possum hoc facere. By olde and auncient histories that I haue red, I do not vnderstand that our nation hath vsed any other generall authoritie in this realme neither Aristocraticall, nor Democraticall, but onely the royall and kingly maiestie which at the first was diuided into many and sundrie kinges, ech abso­lutely [Page 10] reigning in his countrie, not vnder the subiectiō of other, till by fighting thone with thother, the ouer­commed alwayes falling to the augmentation of the vanquisher and ouercommer, at the last the realme of England grew into one Monarchie. Neither any one of those kinges, neither he who first had all, tooke any in­uestiture at the hād of Themperour of Rome or of any other superiour or forraine prince, but helde of God to himselfe, and by his sword his people and crowne, ac­knowledging no prince in earth his superiour, and so it is kept & holden at this day. Although king Iohn (by the rebellion of the nobilitie ayded with the daulphin of Fraunce his power) to appease the Pope who at that time possessing the consciences of his subiectes was thē also his enemy and his most greeuous torment (as some histories do write) did resigne the crowne to his legate Pandulphus, and tooke it againe from him as from the Pope by faith and homage, and a certaine tribute year­ly. But that act being neither approoued by his people, nor established by act of parliament, was forthwith and euer sithens taken for nothing, either to binde the king, his successors or subiectes.

VVhat is a common wealth, and the partes thereof. CHAP. 10.

TO be better vnderstood hereafter, it is necessarie yet to make a third diuision of the common wealth by the partes thereof.Respublica. A common wealth is called a socie­ty or common doing of a multitude of free men collected together and vnited by common accord & couenauntes among themselues, for the conseruation of themselues aswell in peace as in warre. For properly an host of mē is not called a common wealth but abusiuely, because they are collected but for a time and for a fact: which [Page 11] done, ech diuideth himselfe from others as they were be­fore. And if one man had as some of the olde Romanes had (if it be true that is written) v. thousande or x. thousande bondmen whom he ruled well, though they dwelled all in one citie, or were distributed into diuerse villages, yet that were no common wealth: for the bōd­man hath no communion with his master, the wealth of the Lord, is onely sought for, and not the profit of the slaue or bondman. For as they who write of these thinges haue defined, a bondman or a slaue is as it were(sauing life and humane reason) but the instrumēt of his Lord, as the axe, the saw, the chessyll and goluge is of the charpenter. Truth it is the charpenter looketh diligently to saue, correct and amend all these: but it is for his owne profit, and in consideration of him selfe, not for the instrumentes sake. And as these be instruments of the carpenter, so the plow, the cart, the horse, oxe or asse, be instrumentes of the husbandman: and though one husbandman had a great number of all those and looked well to them, it made no common wealth nor could not so be called. For the priuate wealth of the hus­bandman is onely regarded, and there is no mutuall societie or portion, no law or pleading betweene thone and thother. And (as be sayth) what reason hath the pot to say to the potter, why madest thou me thus? or why dost thou breake me after thou hast made me? euen so is the bondman or slaue which is bought for monie: for he is but a reasonable and lyuing instrument the possession of his Lorde and master, reckoned among his goods, not otherwise admitted to the societie ci­uill or common wealth, but is part of the possession and goods of his Lorde. Wherefore except there be other orders and administrations amonst the Turkes, if the prince of the Turkes (as it is written of him) doe re­pute all other his bondmen and slaues (him selfe and his sonnes onely freemen) a man may doubt whether his [Page 12] administration be to be accompted a common wealth or a kingdome, or rather to be reputed onely as one that hath vnder him an infinite number of slaues or bondmē amōg whom there is no right, law nor common wealth compact, but onely the will of the Lorde and segnior. Surely none of the olde Greekes would call this fa­shion of gouernment Remp. or [...] for the reasons which I haue declared before.

The first sort or beginning of an house or familie called [...]. CHAP. 11.

Then if this be a societie, and consisteth onely of free men, the least part therof must be of two. The natu­ralest and first coniunction of two toward the making of a further societie of continuance is of the husband & of the wife after a diuerse sorte ech hauing care of the familie: the man to get, to trauaile abroad, to defende: the wife, to saue that which is gotten, to tarrie at home to distribute that which commeth of the husbandes la­bor for the nurtriture of the children and family of them both, and to keepe all at home neat and cleane. So na­ture hath forged ech parte to his office, the man sterne, strong, bould, aduenterous, negligent of his bewtie, & spending. The woman weake, fearefull, faire, curious of her bewtie, and sauing. Either of them excelling o­ther in wit and wisedome to conduct those thinges which appertaine to their office, and therefore where their wisedome doth excell, therein it is reason that ech should gouerne. And without this societie of man, and woman, the kinde of man coulde not long endure. And to this societie men are so naturally borne that the prince of all Philosophers in consideration of natures was not afraide to say that a man by nature is rather desirous to fellow him selfe to another and so to liue in [Page 13] couple, than to adherd himselfe with many. Although of all thinges or lyuing creatures a man doth shew him selfe most politique, yet can he not well liue without the societie & fellowship ciuill. He that can liue alone saith Aristotle is either a wild beast in a mans likenes, or else a god rather than a man. So in the house and familie is the first and most naturall (but priuate) apparance of one of the best kindes of a common wealth, that is called Aristocratia where a few & the best doe gouerne, and where not one alwaies: but sometime and in some thing one, & sometime and in some thing another doth beare the rule. Which to maintaine for his part God hath giuen to the man great wit, bigger strength, and more courage to compell the woman to obey by reason or force, and to the woman bewtie, faire countenaunce, and sweete wordes to make the man to obey her againe for loue. Thus ech obeyeth and commaundeth other, and they two togeather rule the house.Domus seu familia. The house I call here the man, the woman, their children, their ser­uauntes bonde and free, their cattell, their housholde stuffe, and all other things, which are reckoned in their possession, so long as all these remaine togeather in one, yet this cannot be called Aristocratia, but Meta­phorice, for it is but an house, and a little sparke resem­bling as it were that gouernement.

The first and naturall beginning of a kingdome in Greeke [...]. CHAP. 12.

BVt for so much as it is the nature of all thinges to encrease or decrease, this house thus encreasing & multiplying by generation, so that it cannot well be cō ­prehended in one habitation, and the children waring bigger, stronger, wiser, and thereupon naturally desi­rous to rule, the father and mother sendeth them out [Page 14] in couples as it were by prouining or propagation.Prouining or propagation is when a mā layeth a brāch of a Vine or Osier, or any other tree in­to the groūd, so that it ta­keth roote of it selfe & may liue though it be cut then from the first roote or stock. Pagus. Oppidum. Ciuitas. And the childe by mariage beginneth as it were to roote to­wards the making of a new stocke, and thereupon an o­ther house or familie. So by this propagation or proui­ning first of one, and then another, and so from one to a­nother in space of time, of many howses was made a streete or village, of many streetes and villages ioyned together a citie or borough. And when many cities, boroughes and villages were by common and mutuall consent for their conseruatiō ruled by that one and first father of them all, it was called a nation or kingdome. And this seemeth the first and most natural beginning and source of cities, townes, nations, king­domes, and of all ciuill societies. For so long as the great grandfather was aliue and able to rule, it was vnnaturall for any of his sonnes or offprinst to striue with him for the superioritie, or to go about to gouerne or any wise to dishonour him, from whom he had recei­ued life and being. And therefore such a one doth beare the first and natural example of an absolute and perfect king. For he loued them as his owne children and ne­phewes, cared for them as members of his owne bo­dy, prouided for them as one hauing by long time more experience than any one or all of them. They againe honoured him as their father of whose bodie they came, obeyed him for his great wisedome and forecast, went to him in doubtfull cases as to an oracle of God, fea­red his curse and malediction as proceeding from Gods owne mouth. He againe vsed noriture: for ech paine put vpon them, he esteemed as laide vpon himselfe.

The first and naturall beginning of the rule of a few of the best men called in Greeke [...] CHAP. 13.

BVt when that great grandfather was dead, the sonnes of him and brethren among themselves not [Page 15] hauing that reuerence to any, nor confidence of wise­dome in any one of them, nor that trust thone to tho­ther, betweene whome (as many times it fareth with brethren) some strifes and brawlinges had before a­risen: To defende themselues yet from them which were walsh and strangers, necessarily agreed among themselues to consult in common, and to beare rule for a time in order, now one, now another: so that no one might beare alwaies the rule, nor any one be neglected. And by this meanes if anie one fayled during his yeare or time by ignoraunce, the next (being either wiser of himselfe, or else by his brothers error & fault) amended it. And in the meane while, at diuerse and most times when vrgent necessitie did occurre, they consulted all those heads of families together within themselues, how to demeane and order their matters, best for the conseruation of themselues, and ech of their families, generally and particularly. Thus a few being heades and the chiefe of their families, equall in birth and no­bilitie, and not much different in riches, gouerned their owne houses and the descendentes of them particular­ly, and consulted in common vpon publike causes, agree­ing also vpon certaine lawes and orders to be kept a­mongst them. So the best, chiefest and sagest did rule, and thother part had no cause to striue with them, nor had no cause nor apparance to compare with anie of them, neither for age nor discretion, nor for riches or no­bilitie. The rulers sought ech to keepe and maintaine their posteritie, as their sonnes and nephewes, and such as shoulde succeede them and carie their names when they were deade, and so render them being mor­tall by nature immortall by their fame and successi­on of posteritie: hauing most earnest care to main­taine still this their cousinage and common familie as­well against forraigne and barbarous nations, which were not of their progenie, tongue, or religion, as a­gainst [Page 16] wilde and sanage beasts. This seemeth the na­turall sourse and beginning or image of that rule of the fewer number, which is called of the Greekes [...] and of the Latines optimatum respublica.

The first originall or beginning of the rule of the multitude called [...]. CHAP. 14.

NOw as time bringeth an ende of all thinges, these brethren being all dead, and their offpring encrea­sing daily to a great multitude, and the reuerence due to the old fathers in such and so great number of equals fayling by the reason of the death or doting of the El­ders: eche owing their merites of education apart to their fathers and grandfathers, and so many arising and such equalitie among them, it was not possible that they should be content to be gouerned by a fewe. For two thinges being such as for the which men in society and league do most striue, that is honour and profitte, no man of free courage can be contented to be neglected therein, so that they were faine of necessitie to come to that, that the more part should beare the price away in election of magistrates and rulers. So that either by course or by lot ech man in turne might be receaued to beare rule and haue his part of the honour, and (if any were) of the profit, which came by administration of the common wealth. For whosoeuer came of that old great grandfathers race, he accompted him selfe as good of birth as any other. For seruice to the cōmon wealth all or such a number had done it, as they coulde not be accompted few. And if a few would take vpon them to vsurpe ouer the rest, the rest conspiring together would soone be master ouer them, and ruinate them wholly. Whereupon necessarily it came to passe that the com­mon wealth must turne and alter as before from one [Page 17] to a few, so now from a few to many and the most part, ech of these yet willing to saue the politicke bodie, to conserue the authoritie of their nation, to defende them­selues against all other, their strife being onely for empire and rule, and who shoulde doe best for com­mon wealth, whereof they would haue experience made by bearing office and being magistrates. This I take for the first and naturall beginning of the rule of the multitude which the Greekes called [...]: the La­tines some Republica by the generall name, some po­puli potestas, some census potestas, I cannot tell howe latinely.

That the common wealth or policie must be according to the nature of the people. CHAP. 15.

BY this processe and discourse it doth appeare that the mutations & changes of fashions of gouernement in common wealthes be naturall, & do not alwayes come of ambitiō or malice: And that according to the nature of the people, so the commō wealth is to it sit & proper. And as all these iii. kindes of common wealthes are na­turall, so when to ech partie or espece and kinde of the people that is applied which best agreeth like a garmēt to the bodie or shoe to the foote, then the bodie politique is in quiet, & findeth ease, pleasure and profit. But if a contrary forme be giuen to a contrary maner of people, as when the shoe is too litle or too great for the foote, it doth hurt and encomber the conuenient vse thereof, so the free people of nature tyrannized or ruled by one a­gainst their willes, were he neuer so good, either faile of corage and were seruile, or neuer rest vntill they either destroie their king and them that would subdue them, or be destroyed themselues: And againe another sort there is which without being ruled by on [...]e prince but set at [Page 18] libertie cannot tell what they shoulde doe, but either through insolencie, pride and idlenes will fall to rob­bery and all mischiefe, and to scatter and dissolue them­selues, or with foolish ambition and priuate strife con­sume one another and bring themselues to nothing. Of both these two we haue histories enough to beare wit­nesse, as the Greekes, Romanes, Samnites, Danes Uandals, and others. Yet must you not thinke, that al common wealthes, administrations and rulinges be­gan on this sort, by prouining or propagation, as is be­fore written, but many times after a great battle and long war the captaine who led a multitude of people, gathered peraduenture of diuerse nations & languages, liking y^e place which he hath by force conquered, tarieth there, & beginneth a common wealth after this maner, & for the most part a kingdome. As the Gothes & Lum­bardes in Italie, the Frenchmen in Gaule, the Sara­sins in Spaine and part of Fraunce, the Saxons in great Brittaine, which is nowe called Englande: of which when that one and chiefe prince is dead, the no­bler sort consult among themselues, and either choose an other head and king, or diuide it into more heads & rulers, so did the Lumbards in Italie, and the Sax­ons in England, or take at the first a common rule & popular estate, as the Zwisers did in their cantous & do yet at this day, or else admit the rule of a certaine fewe, excluding the multitude and communaltie, as the Pa­duans, Veronenses, and Venetians haue accustomed.

The diuision of the parts and persons of the common wealth. CHAP. 16.

TO make all thinges yet cleare before, as we shal go, there ariseth another diuision of the partes of the common wealth. For it is not enough to say that it con­sisteth [Page 19] of a multitude of houses & families which make stretes & villages, & the multitude of the stretes & villa­ges make townes, and the multitude of townes the realme, & that freemen be cōsidered only in this behalf, as subiects & citizēs of the cōmonwealth, & not bondmen who can beare no rule nor iurisdiction ouer freemen, as they who be taken but as instruments & the goods and possessions of others. In which consideration also we do reiect women, as those whom nature hath made to keepe home and to nourish their familie and children, and not to medle with matters abroade, nor to beare office in a citie or common wealth no more than chil­dren and infantes: except it be in such cases as the au­thoritie is annexed to the blood and progenie, as the crowne, a dutchie, or an erledome, for there the blood is respected, not the age nor y^e sexe. Whereby an absolute Quéene, an absolute Dutches or Countesse, those I call absolute, which haue the name, not by being maried to a king, duke, or erle, but by being the true, right & next successors in the dignitie, and vpon whom by right of the blood that title is descended: These I say haue the same authoritie although they be women or children in that kingdome, dutchie or earledome, as they shoulde haue had if they had bin men of full age. For the right and honour of the blood, and the quietnes and suertie of the realme, is more to be considered, than either the ten­der age as yet impotent to rule, or the sexe not accusto­med (otherwise) to intermeddle with publicke affaires, being by common intendment vnderstood, that such per­sonages neuer do lacke the counsell of such graue and discreete men as be able to supplie all other defectes. This (as I sayde) is not enough. But the diuision of these which be participant of the common wealth is one way of them that beare office, the other of them that beare none: the first are called magistrates, the se­cond priuate men. Another the like was among the [Page 20] Romanes of Partricij & plebei, thone striuing with tho­ther a long time, the patricij many yeares excluding the plebes from bearing rule, vntill at last all magistrates were made cōmon betweene thē: yet was there another diuision of the Romanes into senatores, equites and plebs: the Greekes had also [...]. The Frēch haue also at this day, les nobles & la populare, or gen­tils homes & villaines: we in England diuide our men commonly into foure fortes, gentlemen, citizens and yeomen artificers, and laborers. Of gentlemen the first and chiefe are the king, the prince, dukes, mar­quises, earles, vicountes, barrons, and these are called [...] the nobility, and all these are called Lords and noblemen: next to these be knights, esquiers and sim­ple gentlemen.

Of the first part of gentlemen of englande called Nobilitas maior. CHAP. 17.

Nobilitas ma­ior.DUkes, marquises, erles, vicountes, and barrons, ei­ther be created by the prince or come to that honor by being the eldest sonnes, as highest & next in succes­sion to their parentes.Eldest sonnes of dukes are not earles by birth, but Lordes, and take their place aboue earles, and so are eldest sons in respect of barons. For the eldest of dukes sonnes during his fathers lyfe is called an earle, an earles sonne is called by the name of a vicount, or baron, or else according as the creation is. The creation I cal the first donation and condition of the honour (giuen by the prince, for good seruice done by him and aduaunce­ment that the prince will bestowe vpon him) which with the title of that honour is commonly (but not al­wayes) giuen to him and to his heires, males only: the rest of the sonnes of the nobilitie by the rigor of the lawe be but esquiers,Esquires of honour or Lordes. yet in common speeche, all dukes and marquises sonnes, and the eldest sonne of an earle be called Lordes. The which name common­ly [Page 21] doth agree to none of lower degree than barrons, excepting such onely, as be thereunto by some speciall office called. The barrony or degree of Lordes doth answere to the dignitie of the Senators of Rome, and the title of our nobilitie to their patricij: when patri­cij did betoken senatores aut senatorum filios. Census senatorius was in Rome, at diuerse times diuerse, and in Englande no man is created barron, excepte he may dispend of yearly reuenue, one thousand poundes or one thousand markes at the least. Vicountes, earles, marquises and dukes more according to the propor­tion of the degree and honour, but though by chaunce he or his sonne haue lesse, he keepeth his degree: but if they decay by excesse, and be not able to maintaine the honour (as senatores Romani were amoti senatu) so sometimes they are not admitted to the vpper house in the parliament, although they keepe the name of Lorde still.

Of the second sort of gentlemē which may be called Nobilitas minor, & first of knightes. CHAP. 18.

NO man is a knight by succession, not the king or prince. And the name of prince in england [...] betokeneth the kinges eldest sonne or prince of wales: although the king himselfe, his eldest sonne, and all dukes be called by generall name princes. But as in Fraunce the kinges eldest sonne hath the title of the daulphine, and he or the next heire apparant to the crowne is monsire, so in Englande the kinges eldest sonne is called [...] the prince. Knightes therefore be not borne but made, either before the battle to en­courage them the more to aduenture their liues, or af­ter the conflict, as aduauncement for their hardinesse and manhood alreadie shewed: or out of the warre [Page 22] for some great seruice done, or some good hope through the vertues which do appeare in them. And they are made either by the king himselfe, or by his commission and royall authoritie, giuen for the same purpose, or by his liuetenaunt in the warres, who hath his royall and absolute power committed to him for that time. And that order seemeth to aunswere in part to that which the Romanes called Equites Romanos, differing in some pointes, and agreeing in other, as their commō wealth and ours do differ and agree: for neuer in all pointes one common wealth doth agree with an other, no nor long time any one common wealth with it selfe. For al chaungeth continually to more or lesse, and still to di­uerse & diuerse orders, as the diuersity of times do pre­sent occasion, and the mutabilitie of mens wittes doth inuent and assay new wayes, to reforme and amende that werein they do finde fault. Equites Romani were chosen ex censu, y^e is according to their substance and ri­ches. So be knightes in England most commonly, ac­cording to the yearely reuenew of their landes being able to maintaine that estate: yet all they that had E­questrem censum, non legebantur equites. No more are all made knightes in Englande that may dispende a knightes land or fee, but they onely whom the king wil so honour. The number of Equites was vncertaine, and so it is of knightes, at the pleasure of the prince. Equi­tes Romani had equum publicum: The knightes of En­gland haue not so, but finde their own horse themselues in peace time, and most vsually in warres.

Census equester was among the Romanes at di­nerse times of diuerse valew: but in England whoso­euer may dispende of his free landes 40. l. sterling of yearely reuenue by an olde law of Englande either at the coronatiō of the king, or mariage of his daughter, or at the dubbing of the prince, knight, or some such great occasion, may be by the king compelled to take [Page 23] that order & honour, or to pay a fine, which many not so desirous of honour as of riches, had rather disburse. Some who for causes ar not thought worthy of y^e honor and yet haue abilitie, neither be made knightes though they would, and yet pay the fine Xl. l. sterling, at that time when this order began, maketh now Cxx. l. of currant mony of Englande: as I haue more at large declared in my booke of the diuersitie of standardes or the valor of monies.

When the Romanes did write senatus populusque Romanus, they seemed to make but two orders, that is of the Senate and of the people of Rome, and so in the name of people they contayned equites and plebem: so when we in England do say the Lordes and the com­mons, the knights, esquires & other gentlemen, with citizens, burgeses & yeomen be accompted to make the commons. In ordaining of lawes the senate of Lordes of England is one house, where the Archbishoppes and Bishops also be, and the king or Queene for the time being as chiefe: the knightes and all the rest of the gen­tlemē, citizens and burgeses which be admitted to con­sult vpon the greatest affaires of the Realme be in an other house by themselues, and that is called the house of the commons, as we shal more clearely describe whē we speake of the parliament. Whereupon this worde knight is deriued, and whether it do betoken no more but that which miles doth in latine, which is a souldier, might be moued as a question. The word souldier now seemeth rather to come of sould and paymēt, and more to betoken a waged or hyred man to fight than other­wise, yet Caesar in his Commentaries called soldures in the tongue gallois, men who deuoted & swore them­selues in a certaine band or othe one to another and to the captaine, which order if the Almains did follow, it may be that they who were not hyred but being of the nation, vppon their owne charges and for their ad­uauncement, [Page 24] and by such common oth or band that did follow the warres,Verè Lantz­knechti. lan­cearius: a speareman were (possibly) [...] called knightes or milites, and nowe among the Almaines some are called lanceknights as souldiers of their band not hyred, although at this day they be for the most part hirelings. Or peraduenture it may be that they which were next about the prince as his garde or seruauntes picked or chosen men out of the rest being called in the Almaine language, knighten which is asmuch to say as seruantes: these men being found of good seruice, the word afterward was taken for an honor, and for him who maketh profession of armes. Our language is so chaunged that I dare make no iudgement thereof. Now we call him knight in english that the french calleth cheualier, Eques aura­tus. The making of a knight. and the lataine equitem or equestris ordinis.

And when any man is made a knight, he kneeling downe is stroken of the prince, with his sworde naked vppon the backe or shoulder, the prince saying: sus or sois chiualier au nom de Dieu and (in times past) they added S. George, and at his arising the prince saith, auauncèr. This is the manner of dubbing of knights at this present: and that terme dubbing was the olde terme in this point, and not creation. At the corona­tion of a king or queene, there be knightes of the bath made with long and more curious ceremonies: But howsoeuer one by dubbed or made a knight, his wife is by and by called a Ladie as well as a barons wife: he himselfe is not called Lorde, but hath to his name in common appelation added this syllable, Sir, as if he before were named, Thomas, William, Iohn, or Ri­chard, afterward he is alwayes called Sir Thomas, Sir William, Sire quasi Se­nior. Sir Iohn, Sir Richard, and that is the title which men giue to knightes in England. This may suffice at this time, to declare the order of knight­hood, yet there is an other order of knightes in Eng­land which be called the knightes of the garter. King [Page 25] Edward the third, after he had obtained many notable victories, King Iohn of Fraunce, King Iames of Scot­land, being both prisoners in the tower of London at one time, and king Henrie of Castell the bastard expul­sed out of his realme, and Don Petro restored vnto it by the prince of Wales and Duke of Aquitaine called the blacke prince, inuented a societie of honour, and made a choice out of his owne realme and dominions, and all Christendom: and the best and most excellent re­noumed persons in vertues and honour, he did adorne with that title to be knightes of his order, gaue them a garter decked with golde, pearle and precious stones, with the buckle of gold, to weare daily on the left legge onely, a kirtle, gowne, cloke, chaperon, collar, and other august and magnificall apparell both of stuffe and fa­shion exquisite & heroicall, to weare at high feastes, as to so high and princely an order was meete: of which order he and his succesors Kinges and Queenes of England to be the soueraigne, and the rest by certaine statutes and lawes among themselues, be taken as brethren and fellowes in that order, to the number of xxvi. But because this is rather an ornament of the realme than any policie or gouernment thereof, I leaue to speake any further of it.

Of Esquiers. CHAP. 19.

EScuier or esquier (which we call commonly squire) is a French worde, and betokeneth Scutigerum or Armigerum, and be all those which beare armes (as we call them) or armories (as they terme them in French) which to beare is a testimonie of the nobilitie or race from whence they do come. These be taken for no di­stinct order of the common wealth, but do goe with the residue of the gentlemen: saue that (as I take it) [Page 26] they be those who beare armes, testimonies (as I haue saide) of their race, and therefore haue neither creation nor dubbing: or else they were at the first costerels or the bearers of the armes of Lordes or knightes, and by that had their name for a dignitie and honour giuen to distinguish them from a common souldier called in latine Gregarius miles.

Of Gentlemen. CHAP. 20.

GEntlemen be those whom their blood and race doth make noble and knowne, [...] in Greeke, the La­taines call them all Nobiles, as the French Nobles. [...] or Nobilitas in Latine is defined, honour or title giuen, for that the auncestor hath bin notable in riches or vertues, or (in fewer wordes) old riches or prowes remaining in one stock. Which if the successors do kéepe and follow, they be verè nobiles and [...]: if they doe not yet the same and wealth of their auncestors serue to couer thē so long as it can, as a thing once gilted though it be copper within, till the gilt be worne away. This hath his reason, for the Etimologie of the name serueth thefficacie of the worde. Gens in Latine betokeneth the race and sirname, so the Romaines had Cornelios, Sergios, Appios, Fabios, AEmilios, Pisones, Iulio, Bru­tos, Valerios, of which who were Agnati, and therefore kept the name, were also Gentiles: and remaining the memorie of the glorie of their progenitors fame, were gentlemē of that or that race. This matter made a great strife among the Romanes, when those which were Noui homines were more allowed, for their vertues new and newly showen, than the olde smell of auncient race newly defaced by the cowardise and euill life of their nephewes and discendauntes could make the o­ther to be. Thus the Cicerones, Catones, and Marij [Page 27] had much adoe with those auncients, and therefore said Iuuenalis:

But as other common wealthes were faine to doe, so must all princes necessarily followe, that is, where vertue is to honour it: and although vertue of auncient race be earlier to be obtained, aswell by the example of the progenitors, which encourageth, as also through habilitie of education and bringing vp, which enableth, and the lastly enraced loue of tenāts & neybors to such noblemen and gentlemen, of whom they holde and by whom they doe dwell, which pricketh forward to ensue in their fathers steps. So it all this doe faile (as it were great pitie it should) yet such is the nature of all humaine thinges, and so the world is subiect to mu­tability, that it doth many times faile: but whē it doth, the prince and common wealth haue the same power that their predecessors had, and as the husbandmā hath to plant a new tree where the olde fayleth, so hath the prince to honour vertue where he doth finde it, to make gentlemen, esquiers, knights, barons, earles marqui­ses & dukes, where he seeth vertue able to beare that honour or merits, and deserues it, & so it hath alwayes bin vsed among vs. But ordinarily the king doth on­ly make knights and create barons or higher degrees: for as for gentlemen, they be made good cheape in Eng­land. For whosoeuer studieth the lawes of the realme, who studieth in the vniuersities, who professed libe­rall sciences, and to be shorte, who can liue idly and without manuall labour, and will beare the port, charge and countenaunce of a gentleman, he shall be called master, for that is the title which men giue to esquires and other gentlemen, and shall be taken for a gentleman: for true it is with vs as is saide, Tanti eris [Page 28] alijs quanti tibi feceris: (and if neede be) a king of He­raulds shal also give him for mony, armes newly made and inuented, the title whereof shall pretende to haue beene found by the said Herauld in perusing and view­ing of olde registers, where his auncestors in times past had bin recorded to beare the same: Or if he wil do it more truely and of better faith, he will write that for the merittes of that man, and certaine qualities which he doth see in him, and for sundrie noble actes which he hath perfourmed, he by the authoritie which he hath as king of Heraldes & armes, giveth to him and his heires these and these armes, which being done I thinke he may be called a squire, for he beareth ever after those armes. Such men are called sometime in scorne gen­tlemen of the first head.

VVhether the maner of England in making gentlemen so easily is to be allowed. CHAP. 21.

A Man may make doubt & question whether this ma­ner of making gentlemen is to be allowed or no, & for my part I am of that opinion y^e it is not amisse. For first the prince looseth nothing by it, as he shoulde doe it it were as in Fraunce: for the yeomen or husbandmā is no more subiect to taile or taxe in Englande than the gentleman: no, in every payment to the king the gen­tleman is more charged, which he beareth the gladlier and dareth not gainesaie for to save and keepe his ho­nour and reputation. In any shew or muster or other particular charge of the towne where he is, he must o­pen his purse wider and augment his portion above o­thers, or else he doth diminish his reputation. As for their outward shew, a gentleman (if he wil be so accom­pted) must go like a gentleman, a yeoman like a yeo­man, and a rascall like a rascall: and if he be called to [Page 29] the warres, he must and will (whatsoever it cost him) array himselfe and arme him according to the vocation which he pretendeth: he must shew also a more manly corage & tokens of better education, higher stomacke and bountifuller liberallitie than others, and keepe a­boute him idle seruauntes, who shall doe nothing but waite vpon him. So that no man hath hurt by it but he himselfe, who hereby perchance will beare a bigger saile than he is able to maintaine. For as touching the policie and goverment of the common wealth, it is not those that haue to do with it, which will magnifie them selves, and goe in higher buskins than their estate will beare: but they which are to be appointed, are per­sons tryed and well knowen, as shall be declared here­after.

Of Citizens and Burgesses. CHAP. 22.

NExt to gentlemen, be appointed citizens and bur­gesses, such as not onely be free and receiued as officers within the cities, but also be of some substance to beare the charges. But these citizens and burgesses, be to serve the common wealth, in their cities & bur­rowes, or incorporate townes where they dwell. Ge­nerally in the thyres they be of none accompt, saue onely in the common assembly of the realme to make lawes, which is called the Parliament. The aunciet ci­ties appoint iiii. and ech burrough ii. to haue voices in it, and to giue their consent or dissent in the name of the citie or burrough, for which they be appointed.

Of Yeomen. CHAP. 23.

THose whom we call yeomen next vnto the nobilitie, knightes and squires, haue the greatest charge and [Page 30] doings in the common wealth, or rather are more tra­uailed to serue in it than all the rest: as shall appeare hereafter. I call him a yeoman whom our lawes doe call Legalem hominem, a worde familiar in writtes and enquestes, which is a fréeman borne English, and may dispend of his owne frée lande in yearly reuenue to the summe of xl. s. sterling: This maketh (if the iust va­lue were taken now to the proportion of monies) vt. l. of our currant mony at this present. This sort of peo­ple confesse themselves to be no gentlemen, but giue the honour to al which be or take vpon them to be gen­tlemen, and yet they haue a certaine preheminence and more estimation than laborers and artificers, and com­monly liue welthilie, kéepe good houses, & do their busi­nesse, & trauaile to acquire riches: these be (for the most part) fermors vnto gentlemen, which with grasing, fre­quenting of markettes, and kéeping seruauntes not i­dle as the gentleman doth, but such as get both their owne liuing and parte of their maisters, by these meanes doe come to such wealth, that they are able and daily doe buy the landes of vnthriftie gentlemen, and after setting their sonnes to the schoole at the Uni­uersities, to the lawe of the Realme, or otherwise lea­uing them sufficient landes whereon they may liue without labour, doe make their saide sonnes by those meanes gentlemen. These be not called masters, for that (as I saide) pertaineth to gentlemen onely: But to their surnames, men adde goodman: as if the Sur­name be Luter, Finch, White, Browne, they are called, goodman Luter, goodman White, goodman Finch, goodman Browne, amongest their neighbours, I meane not in matters of importance or in lawe. But in matters of lawe and for distinction, if one were a knight they would write him (for example sake) sir Iohn Finch knight, so if he be an esquier, Iohn Finch esquier or gentleman, if he be no gentleman, Iohn [Page 31] Finch yeoman. For amongest the gentlemen they which claime no higher degrée, and yet be to be exemp­ted out of the number of the lowest sort thereof, be written esquiers. So amongest the husbandmen la­bourers lowest and rascall sort of the people such as be exempted out of the number of the rascabilitie of the popular bee called and written yeomen, as in the de­grée next vnto gentlemen. These are they which olde Cato calleth Aratores and optimos ciues in Republica: and such as of whom the writers of cōmon wealthes praise to haue manie in it. Aristoteles namely reciteth [...]: these tende their owne businesse, come not to meddle in publike matters and iudgements but when they are called, and gladde when they are delivered thereof, are obedient to the gentlemen and rulers, and in warre can abide trauaile and labour as men vsed to it, yet within it soone at an ende that they might come home & liue of their owne. When they are foorth they fight for their Lordes of whom they hold their landes, for their wiues and children, for their countrey and na­tion, for praise and honour, against they come home, and to haue the loue of their Lorde and his children to be continued towardes them and their children, which have aduentured their liues to and with him and his. These are they which in the old world gat that honour to Englande, not that either for witte, conduction, or for power they are or were euer to be compared to the gentlemen, but because they be so manie in number, so obedient at the Lordes call, so strong of bodie, so heard to endure paine, so couragious to aduenture with their Lorde or Captaine going with, or before them, for else they be not hastie nor neuer were, as making no pro­session of knowledge of warre. These were the good ar­chers in times past, and the stable troupe of footemen that affaide all France, that would rather die all, than once abandon the knight or gentleman their Captaine, [Page 32] who at those daies commonly was their Lorde, and whose tenauntes they were, readie (besides perpetu­all shame) to be in danger of vndoing of them selues, & all theirs if they should showe any signe of cowardise or abandon the Lorde, Knight or Gentlemen of whom they helde their liuing. And this they haue amongest them from their forefathers tolde one to an other. The gentlemen of France and the yeoman of Englande are renowned, because in battle of horsemen Fraunce was many times too good for vs, as we againe alway for them on foote. And gentlemen for the most part be men at armes and horsemen, and yeomen commonlie on foote: howesoeuer it was, yet the gentlemen had al­waies the conduction of the yeomen, and as their cap­taines were either a foote or vppon a little nagge with them, and the Kinges of Englande in foughten bat­tles remaining alwaies among the footemen, as the French Kinges amongst their horsemen. Each Prince therby, as a man may gesse, did shew where he thought his strength did consist. What a yeoman is I haue de­clared, but from whence the worde is deriued it is hard to say: it cannot be thought that yeomen should be said a young man, for commonly wee doe not call any a yeoman till he be married, and haue children, and as it were haue authoritie among his neighbours. Yonker in lowe dutch betokeneth a meane gentleman or a gay fellowe. Possible our yeomen not beeing so bolde as to name themselues gentlemen, when they came home, were content when they had heard by fre­quentation with lowe dutchmen of some small gentle­man (but yet that would be counted so) to be called a­mongest them, yonker man, the calling so in warres by mockage or in sport thone an other, when they come home, yonker man, and so yeoman: which worde now signifieth among vs, a man well at ease and hauing honestlie to liue, and yet not a gentleman: whatsoe­uer [Page 33] that worde yonker man, yonke man, or yeoman doth more or lesse signifie to the dutch men.

Of the fourth sort of men which doe not rule. CHAP. 24.

THe fourth sort or classe amongest vs, is of those which the olde Romans called capite censij proletarij or operae, day labourers, poore husbandmen, yea mar­cantes or retailers which haue no frée lande, copi­holders, and all artificers, as Taylers, Shoomakers, Carpenters, Brickemakers, Bricklayers, Masons, &c. These haue no voice nor authoritie in our common wealth, and no account is made of them but onelie to be ruled, not to rule other, and yet they be not altoge­ther neglected. For in cities and corporate townes for default of yeomen, enquests and Iuries are impaneled of such manner of people. And in villages they be com­monly made Churchwardens, alecunners, and manie times Constables, which office toucheth more the com­mon wealth, and at the first was not imployed vppon such lowe and base persons. Wherefore generally to speake of the common wealth, or policie of Englande, it is gouerned, administred, & manured by thrée sortes of persons, the Prince, Monarch, and head gouerner, which is called the king, or if the crowne fall to a wo­man, the Quéene absolute, as I haue héeretofore saide: In whose name and by whose authoritie all things are administred. The gentlemen, which be diuided into two partes, the Baronie or estate of Lordes contey­ning barons and all that bee aboue the degrée of a ba­ron, (as I haue declared before): and those which be no Lords, as Knightes, Esquires, and simplely gentle­men. The thirde and last sorte of persons is named [Page 34] the yeomanrie: each of these hath his part and admini­stration in indgementes, corrections of defaultes, in election of offices, in appointing and collection of tri­butes and subsidies, or in making lawes, as shall ap­peare héereafter.

Of the Parliament and the au­thoritie thereof. CHAP. 1.

THe most high and abso­lute power of the realme of Englande, consisteth in the Parliament. For as in warre where the king himselfe in person, the nobilitie, the rest of the gentilitie, and the yeomanrie are, is y^e force and power of Englande: so in peace & consultation where the Prince is to giue life, and the last and highest commaundement, the Baronie for the nobilitie and higher; the knightes, es­quiers, gentlemen and commons for the lower part of the common wealth, the bishoppes for the clergie bee present to aduertise, consult and shew what is good and necessarie for the common wealth, and to consult toge­ther, and vpon mature deliberation euerie bill or lawe being thrise reade and disputed vppon in either house, [Page 35] the other two partes first each a part, and after the Prince himselfe in presence of both the parties doeth consent vnto and alloweth. That is the Princes and whole realmes déede: whereupon iustlie no man can complaine but must accommodate himselfe to finde it good and obey it.

That which is doone by this consent is called firme, stable, and sanctum, and is taken for lawe. The Par­liament abrogateth olde lawes, maketh newe, giueth orders for thinges past, and for thinges héereafter to be followed, changeth rightes, and possessions of pri­uate men, legittimateth bastards, establisheth formes of religion, altereth weightes and measures, giueth formes of succession to the crowne, defineth of doubt­full rightes, whereof is no lawe alreadie mads, appoin­teth subsidies, tailes, taxes, and impositions, giueth most frée pardons and absolutions, restoreth in bloud and name as the highest court, condemneth or absol­ueth them whom the Prince will put to that triall: And to be short, all that euer the people of Rome might do either in Centuriatis comitijs or tributis, Alias Tribu­nitijs. the same may be doone by the parliament of Englande, which repre­senteth & hath the power of the whole realme both the head and the bodie. For euerie Englishman is enten­ded to bee there present, either in person or by procu­ration and attornies, of what preheminence, state, dignitie, or qualitie soeuer he be, from the Prince (be he King or Quéene) to the lowest person of Englande. And the consent of the Parliament is taken to be eue­rie mans consent.

The forme of holding the parliament. CHAP. 2.

THe Prince sendeth forth his rescripts or writtes to euery duke, marques, baron, and euery other Lorde [Page 36] temporall or spirituall who hath voice in the parlia­ment, to be at his great counsell of Parliament such a day, (the space from the date of the writ is commonly at the least fortie dayes): he sendeth also writtes to the Sherifes of euery shyre to admonish the whole shire to choose two knightes of the parliament in the name of the shyre, to heare and reason, and to giue their aduise and consent in the name of the shyre, and to be present at that day: likewise to euery citie and towne which of ancientie hath bin wont to finde burgesses of the parli­ament, so to make election that they might be present there at the first day of the parliament. The knightes of the shyre be chosen by all the gentlemen and yeomen of the shyre, present at the day assigned for the election: the voice of any absent can be counted for none. Yeomen I call here (as before) that may dispende at the least xl. s. of yearely rent of free lande of his owne. These meeting at one day, the two who haue the more of their voices be chosen knightes of the shire for that parlia­ment: likewise by the pluralitie of the voyces of the ci­tizens and burgesses be the burgesses elected. The first day of the parliament the Prince and all the Lordes in their robes of parliament do meete in the higher house, where after prayers made, they that be present are written, and they that be absent vpon sicknes or some other reasonable cause (which the prince will allowe) do constitute vnder their hande and seale some one of those who be present as their procurer or atturney to giue voice for them, so that by presence or atturney & proxey they be all there, all the princes and barrons & all archbishops and bishops, and (when abbots were) so many abbots as had voice in parliament. The place where the assembly is, is richly tapessed and hanged, a princely and royal throne as appertaineth to a king, set in the middest of the higher place thereof. Next vnder the prince sitteth the Chancellor, who is the voyce and [Page 37] orator of the prince. On the one side of that house or chamber sitteth the archbishops and bishops, ech in his ranke: on the other side the dukes and barons. In the middest thereof vppon woolsackes sitteth the Iudges of the realme, the master of the roules, and the secretaries of estate. But these that sit on the woolsacks haue no voice in the house, but onely sit there to aunswere their knowledge in the law, when they be asked if any doubt arise among the Lordes. The secretaries to aunswere of such letters or thinges passed in counsell whereof they haue the custodie and knowledge: and this is cal­led the vpper house, whose consent and dissent is giuen by ech man seuerally and by himselfe, first for himselfe, and then seuerally for so many as he hath letters and proxies, when it commeth to the question, saying onely content or not content, without further reasoning or replying. In this meane time the knights of the shires and burgesses of the parliament (for so they are called that haue voice in parliamēt, and are chosen as I haue said before, to the number betwixt iii C. and iiii. C.) are called by such as it pleaseth the prince to appoint, into another great house or chamber by name, to which they aunswere and declaring for what shyre or towne they aunswere: then they are willed to choose an able & discreete man to be as it were the mouth of them, all & to speake for and in the name of them, and to present him so chosen by them to the prince: which done they comming al with him to a barre, which is at the nether ende of the vpper house, there he first praiseth the prince, then maketh his excuse of vnabilitie, and prayeth the prince that he would command the commons to choose another. The chancellor in the princes name doth so much declare him able, as he did declare himselfe vna­ble, and thanketh the commons for choosing so wise, dis­creete and eloquent a man, and willeth them to go and consult of lawes for the cōmon wealth. Then the spea­ker [Page 38] maketh certaine requests to the prince in the name of the commons, first that his maiestie would be contēt that they may vse and enioy all their liberties and pri­uiledges that the common house was wont to enioy. Secondly that they might franckely and freely saye their mindes in disputing of such matters as may come in question, and that without offence to his Maiestie. Thirdly that if any should chaunce of that lower house to offend or not to do or say as should become him, or if any should offend any of them being called to that his highnes court: That they thēselues might (according to the ancient custome) haue the punishment of them. And fourthly, that if there came any doubt, whereupon they shal desire to haue thaduise or conference with his Ma­iestie or with any of the Lordes, that they might doe it: All which he promiseth in the commons names that they shall not abuse, but haue such regarde as most faithfull, true and louing subiectes ought to haue to their prince.

The Chauncelor answereth in the princes name, as apperteyneth. And this is all that is doone for one day, & sometime two. Besides the Chauncelor, there is one in the vpper house who is called Clarke of the Parlia­ment, who readeth the bils. For all that commeth in consultation either in the vpper house or in the neather house, is put in writing first in paper, which being once read, he that will, riseth vp and speaketh with it or a­gainst it: and so one after another so long as they shall thinke good. That doone they goe to an other, and so another bill. After it hath bin once or twise read, and doth appeare that it is somewhat like as reasonable, with such amendment in wordes and peraduenture some sentēces as by disputatiō seemeth to be amended. In the vpper house the Chauncelor asketh if they will haue it engrossed, that is to say put into parchment: which doone, and read the third time, and that eftsoones [Page 39] if any be disposed to obiect disputed againe amōg them, the Chauncelor asketh if they will goe to the question: and if they agree to goe to the question, then he sayth, here is such a lawe or act concerning such a matter, which hath béene thrise read here in this house, are ye content that it be enacted or no? If the not contentes be moe, then the bill is dashed, that is to say the lawe is annihilated and goeth no further. If the contentes be the more, then the Clarke writeth vnderneath: Soit baille aux commons. And so when they see time they send such bils as they haue approued by two or three of those which doe sit on the woolsacks to the commons: who asking licence, and comming into the house, with due reuerence, sayth to the speaker: Master speaker my Lordes of the vpper house haue passed among them and thinke good, that there should be enacted by Par­liament such an act, and such an act, and so readeth the titles of that act or actes. They pray you to consider of them, and shew them your aduise, which doone they goe their way. They being gone and the doore againe shut, the speaker rehearseth to the house what they sayde. And if they be not busie disputing at that time in an o­ther bill, he asketh them streightwaie if they will haue that bill or (if there be mo) one of them.

In like maner in the lower house the speaker sitting in a seate or chaire for that purpose somewhat higher, that he may see and be seene of them all, hath before him in a lower seate his Clarke, who readeth such bils as he first propounded in the lower house, or be sent down from the Lords. For in that point, ech house hath equal authoritie, to propounde what they thinke meete, ei­ther for thabrogating of some law made before, or for making of a newe. All bils be thrise in three diuerse dayes read and disputed vpon, before they come to the question. In the disputing is a meruelous good or­der vsed in the lower house. He that standeth vppe [Page 40] beareheadded is vnderstranded that he will speake to the bill. If moe stande vppe, who that first is iudged to arise, is first harde, though the one do prayle the law, the other diswade it, yet there is no altercation. For euerie man speaketh as to the speaker, not as one to an other, for that is against the order of the house. It is also taken against the order, to name him whom ye doe confute, but by circumlocution, as he that spea­keth with the bill, or he that spake against the bill, and gaue this and this reason. And so with perpetuall O­ration not with altercation, he goeth through till he do make an end. He that once hath spoken in a bill though he be confuted straight, that day may not replie, no though he would chaunge his opinion. So that to one bill in one day one may not in that house speake twise, for else one or two with altercation woulde spende all the time. The next day he may, but then also but once.

No reuiling or nipping wordes must be vsed. For then all the house will crie, it is against the order: and if any speake vnreuerently or seditiouslie against the Prince or the priuie counsell, I haue séene them not onely interrupted, but it hath béene moued after to the house, and they haue sent them to the tower. So that in such a multitude, and in such diuersitie of mindes, and opinions, there is the greatest modestie and tem­perance of spéech that can be vsed. Neuerthelesse with much doulce and gentle termes, they make their rea­sons as violent and as vehement the one against the other as they may ordinarily, except it bee for vrgent causes & hasting of time. At the afternoone they kéepe no parliament. The speaker hath no voice in the house, nor they will not suffer him to speake in any bill to moue or diswade it. But when any bill is read, the speakers office is as brieflie and as plainely as he may to declare the effect thereof to the house. If the com­mons doe assent to such billes as be sent to them first [Page 41] agréed vpon from the Lords thus subscribed, Les com­mons out assentus, so if the Lordes doe agrée to such billes as be first agréed vppon by the Commons, they sende them downe to the speaker thus subscribed, Les Seigneurs out assentus. If they cannot agrée, the two houses (for euerie bill from whence soeuer it doth come is thrise reade in each of the houses) if it be vnderstoode that there is any sticking sometimes the Lordes to the Commons, somtime the Commons to the Lords doe require that a certaine of each house may méete together, and so ech part to be enformed of others mea­ning, and this is alwaies graunted. After which mée­ting for the most part not alwaies either parte agrées to others billes.

In the vpper house they giue their assent & dissent ech man seuerallie & by himselfe first for himselfe, and then for so manie as he hath proxie. Whē y^e Chaunceler hath demanded of them whether they will goe to the questi­on after the bill hath béene thrise reade, they saying on­ly content or not content, without further reasoning or replying: and as the more number doeth agrée, so it is agréed on or dashed.

In the neather house none of them that is elected ei­ther Knight or Burges can giue his voice to an other nor his consent nor dissent by proxie. The more parts of them that be present onely maketh the consent or dissent. After the bill hath béene twise reade, and then engrossed and eftsoones reade and disputed on ynough as is thought: the speaker asketh if they will goe to the question. And if they agrée be holdeth the bill vp in his hande and sayeth, as many as will haue this bill goe forwarde, which is concerning such a matter, say yea. Then they which allowe the bill crie yea, and as many as wil not, say no: as the crie of yea or no is big­ger, so the bill is allowed or dashed. If it be a doubt which crie is the bigger, they diuide the house, the spea­ker [Page 42] saying, as many as doe alowe the bill goe downe with the bill, and as many as do not sitte still. So they diuide themselues, and being so diuided they are num­bred who make the more part, and so the bill doeth spéede. It chaunceth sometime that some part of the bil is allowed, some other part hath much contrariety and doubt made of it: and it is thought if it were amended it would goe forwarde. Then they chuse certaine cō ­mittees of them who haue spoken with the bil & against it to amende it, and bring it in againe so amended, as they amongest them shall thinke méete: and this is be­fore it is engrossed, yea & some time after. But y^e agrée­ment of these committees is no preiudice to the house. For at the last question they will either accept it or dash it as it shall séeme good, notwithstanding y^• what­soeuer the committees haue doone.

Thus no bill is an act of Parliament, ordinaunce, or edict of law, vntill both the houses seuerallie haue a­gréed vnto it, after the order aforesaide, no nor then neither. But the last day of that Parliament or session the Prince cōmeth in person in his Parliament robes, and sitteth in his state: all the vpper house sitteth about the Prince in their states and order in their robes. The speaker with all the common house commeth to the barre, and there after thankesgiuen first in the Lordes name by the Chaunceller &c. and in the commons name by the speaker to the Prince, for that hee hath so great care of the good gouernement of his people, and for cal­ling them together to aduise of such thinges as should be for the reformation, establishing & ornament of the common wealth: the Chaunceller in y^e Princes name giueth thankes to the Lords & cōmons for their paines and trauailes taken, which he saith the Prince will re­member and recompence when time and occasion shall serue, and y^• he for his part is ready to declare his plea­sure concerning their procéedings, whereby the same [Page 43] may haue perfect life & accomplishment by his prince­lie authoritie, and so haue the whole consent of the Realme. Then one reades the title of euerie act which hath passed at that session, but only in this fashion: An act cōcerning such a thing &c. It is marked there what the Prince doth allowe, and to such he sayth: Le roy or la royne le veult. And those be taken nowe as perfect lawes and ordinances of the Realme of Englande and none other, and as shortlie as may be put in print, ex­cept it be some priuate cause or lawe made for the be­nefit or preiudice of some priuate man, which the Ro­mans were wont to call priuilegia. These be onelie ex­emplified vnder the seale of the Parliament, and for the most part not printed. To those which the Prince li­keth not, he answereth, Le roy or la royne saduisera, & those be accounted vtterly dashed and of no effect.

This is the order and forme of the highest and most authenticall court of Englande, by vertue whereof all those things be established whereof I spake before, and no other meanes accounted vailable to make any new forfaiture of life, member, or landes of any English man, where there was no lawe ordayned for it be­fore. Nowe let vs speake of the saide partes when they be seuerall.

Of the Monarch King or Queene of Englande. CHAP. 3.

THe Prince whom I nowe call (as I haue often be­fore) the Monarch of Englande, King or Quéene, hath absolutelie in his power the authoritie of warre and peace, to defie what Prince it shall please him, and to bid him warre, and againe to reconcile himselfe and enter into league or truce with him at his pleasure or [Page 44] the aduice onely of his priuie consell. His priuie coun­sell be chosen also at the Princes pleasure out of the no­bilitie or baronie, and of the Knightes, and Esquires, such and so many as he shal thinke good, who doth con­sult daily, or when néede is of the weightie matters of the Realme, to giue therein to their Prince the best ad­uice they can. The Prince doth participate to them all, or so many of them, as he shall thinke good, such lega­tions and messages as come from forren Princes, such letters or occurrentes as be sent to himselfe or to his se­cretaries, and kéepeth so many ambassades and letters sent vnto him secret as he will, although these haue a particular oth of a counseller touching faith and secrets administred vnto them when they be first admitted in­to that companie. So that héerein the kingdome of Englande is farre more absolute than either the duke­dome of Uenice is, or the kingdome of the Lacedemoni­ans was. In warre time, & in the field the Prince hath also absolute power, so that his worde is a law, he may put to death, or to other bodilie punishment, whom he shall thinke so to deserue, without processe of lawe or forme of iudgement. This hath béene sometime vsed within the Realme before any open warre in sodden insurrections and rebellions, but that not allowed of wise and graue men, who in that their iudgment had consideration of the consequence and example, asmuch as of the present necessitie,, especiallie, when by anie meanes the punishment might haue béene doone by or­der of lawe. This absolute power is called marciall lawe and euer was and necessarilie must be vsed in all campes and hostes of men, where the time nor place do suffer the tariance of pleading and processe, be it neuer so short, and the important necessitie requireth spéedie execution, that with more awe the souldier might be kept in more straight obedience, without which neuer captaine can doe anie thing vaileable in the warres.

[Page 45]The prince vseth also absolute power in crying and decreeing the mony of the realme by his proclamation onely. The mony is alwayes stamped with the pinces image and title. The forme, fashion, maner, weight, finenesse, and basenesse thereof, is at the discretion of the prince. For whom should the people trust more in that matter than their prince, seeing the coine is only to cer­tifie the goodness of the mettall and the weight, which is affirmed by the princes image and marke? But if the prince will deceaue them and giue copper for siluer or golde, or enhaunce his coyne more than it is worth, he is deceaued himselfe, as well as he doth go a­bout to deceaue his subiectes. For in the same sorte they pay the prince his rentes and customes. And in time they will make him pay rateably or more for meate, drinke and victualles for him and his, and for their labour: which experience doth teach vs nowe in our dayes to be doone in all regions. For there euer hath béene & euer will be a certaine proportiō betwéene the scarcity and plentie of other thinges, with gold and siluer, as I haue declared more at large in my booke of monie. For all other measures and weightes, aswell of drie thinges as of wet, they haue accustomed to be e­stablished or altered by the Parliament, and not by the princes proclamation only.

The prince vseth also to dispence with lawes made, whereas equitie requireth a moderation to be had, and with paynes for transgression of lawes, where the payne of the lawe is applyed onely to the prince. But where the forfaite (as in popular actions it chaunceth many times) is part to the prince, the other part to the declarator, detector or informer, there the prince doth dispence for his owne part onely. Where the cri­minall action is intended by inquisition (that maner is called with vs at the princes suite) the prince giue­eth absolution or pardon: yet with a clause, modo stet [Page 46] rectus in curia, that is to say, that no man obiect against the offendor. Whereby notwithstanding that he hath the princes pardon if the person offended will take vp­pon him the accusation( which in our language is cal­led the appeale) in cases where it lieth, the princes par­don doth not serue the offendor.

The prince giueth all the chiefe and highest offices or magistracies of the realme, be it of iudgement or dig­nitie, temporall or spirituall, and hath the tenthes and first fruites of all Ecclesiasticall promotions, except in the Uniuersities and certaine Colledges which be ex­empt.

All writtes, executions and commaundementes be done in the princes name. We doe say in England the life and member of the kinges subiectes are the kinges onely, that is to say no man hath hault nor moyenne iu­stice but the king, nor can hold plea thereof. And there­fore all those pleas, which touche the life or the muti­lation of man, be called pleas of the crowne, nor can be dooke in the name of any inferior person than he or shée that holdeth the crowne of Englande. And likewise no man can giue pardon thereof but the prince onely: Although in times past there were certaine countie Palatines, as Chester, Durham, Clie, which were hault iusticers, and writtes went in their name, and also some Lorde marchers of Wales, which claymed like priuiledge. All these are now worne away. The supreme iustice is done in the kinges name, and by his authoritie onely.

The Prince hath the wardshippe and first mariage of all those that hold landes of him in chiefe. And also the gouernement of all fooles natural, or such as be made by aduenture of sicknes, and so continue, if they be landed. This being once graunted by act of Parlia­ment (although some inconuenience hath béene thought to grow thereof, & sith that time it hath béene thought [Page 47] verie vnreasonable) yet once annexed to the crowne who ought to go about to take the clubbe out of Hercu­les hand. And being gouerned iustly & rightly, I see not so much inconuenience in it, as some men would make of it: diuerse other rights and preeminences the prince hath which be called prerogatiues royalles, or the pre­rogatiue of the king, which be declared particularly in the bookes of the common lawes of England.

To be short the prince is the life, the head, and the authoritie of all thinges that be doone in the realme of England. And to no prince is doone more honor and re­uerence than to the King and Queene of Englande, no man speaketh to the prince nor serueth at the table but in adoration and kneeling, all persons of the realme be bareheaded before him: insomuch that in the cham­ber of presence where the cloath of estate is set, no man dare walke, yea though the prince be not there, no man dare tarrie there but bareheadded. This is vn­derstood of the subiectes of the realme: For all stran­gers be suffered there and in all places to vse the manner of their countrie, such is the ciuilitie of our nation.

The chiefe pointes wherein one common wealth doth differ from an other. CHAP. 4.

NOw that we haue spoken of the parliament (which is the whole vniuersall and generall consent and authoritie aswell of the prince as of the nobilitie and commons, that is to say, of the whole head and bodie of the realme of England) and also of the prince, (which is the head, life and gouernor of this common wealth): there remaineth to shewe, how this head doth distri­bute his authoritie and power to the rest of the mem­bers for the gouernment of this realme, and the commō wealth of the politique bodie of England. And where­as [Page 48] as all common wealthes and gouernmentes be most occupyed, and be most diuerse in the fashion of fiue thinges: in making of lawes and ordinaunces, for their owne gouerment: in making of battel & peace, of truce with forraine nations: in prouiding of mony for the maintenance of themselues within thēselues, & defence of themselues against their enemies: in choosing and election of the chiefe officers and magistrates: and fiftly in the administration of iustice. The first and thirde we haue shewed is doone by the prince in parlia­ment. The seconde and fourth by the prince himselfe. The fift remaineth to be declared.

Of the three maners and formes of trialles or iudgementes in England. CHAP. 5.

By order and vsage of Englande there is three wayes and maners, whereby absolute and definite iudge­ment is giuen, by parliament which is the highest and most absolute, by battle, and by the great assise.

Triall or iudgement by parliament. CHAP. 6.

THe matter of giuing iudgement by parliament be­tweene priuate and priuate man, or betweene the prince and any priuate man, be it in matters crimi­nall or ciuill, for land or for heritage, doth not differ frō thorder, which I haue prescribed, but it proceedeth by bill thrise read in ech house and assented to as I haue saide before, and at the last day confirmed and allowed by the prince. Howbeit such bils be seeldome receaued because that great counsell being enough occupyed with the publique affaires of the realme, will not gladly intermedle it selfe with priuate quarels & questions.

Triall of iudgement by battle. CHAP. 7.

THis is at this present not much vsed, partly because of long time the Pope and the cleargie to whom in times past we were much subiect, alwayes cryed a­gainst it as a thing damnable and vnlawful, and part­ly because in all common wealthes (as to the tongue) so to the maners, fashions, habites, yea and kindes of trials and iudgmentes, and to all other thinges that is therein vsed, time and space of yeares bringeth a chaunge. But I could not yet learne that it was euer abrogated. So that it remaineth in force, whensoeuer it be demanded. The maner of it is described in Briton.

The triall by affise or xij. men, & first of the three partes which be necessary in iudgement. CHAP. 8.

THe two first iugdementes be absolute supreme and without appeale, and so is also the iudgement by the great affise. And because our manner of iudgementes in England is in many thinges different from the fa­shion vsed either in Fraunce, or in Italie, or in any other place where the Emperors lawes and constitu­tions (called the ciuill lawes) be put in vse, it will be necessarie here to make a litle digression, to the intent, that that which shalbe said hereafter may be better vn­derstood. All pursuites and actions (we call them in our English tongue pleas) and in barbarous (but now v­suall) latine placita, taking▪ that name abusiue of the definitiue sentence, whith may well be called placitum or [...]. The French vseth the same calling in their language, the sentence of their iudges areste or arest: in which wordes nothwithstanding after their custome they do not founde the s. but we call placitum the action [Page 50] not the sentence, and placitare barbarouslie, or to pleade in english, agere or litigare. Now in all iudgements ne­cessarily being two parties, the first we call the implea­der, suiter, demaunder or demaundaunt and plaintiffe: In criminall causes if he professe to be an accuser, we call him appellant or appellour, and so accusation we call appeale. The other we call the defendant and in criminall causes prisoner, for he cannot aunswere in causes criminall before he do render himselfe or be ren­dred prisoner.

Index is of vs called Iudge, but our fashion is so di­uerse that they which giue the deadly stroke, and either condemne or acquite the man for guiltie or not guil­tie, are not called Iudges but the xii▪ men. And the same order aswell is in ciuill matters and pecuniarie, as in matters criminall.

Of pleas or actions. CHAP. 9.

PLeas or actions criminall be in English called pleas of the crowne, which be all those which tende to take away a mans life or any mēber of him, for his euill de­seruing against the prince and common wealth.

And this name is giuen not without a cause. For taking this for a principle that the life and member of an Englishman is in the power onely of the prince and his lawes, when any of his subiectes is spoyled either of life or member, the prince is endammaged thereby, and hath good cause to aske accompt, how his subiectes should come to that mischiefe. And againe for so much as the prince who gouerneth the scepter, and holdeth the crowne of Englande hath this in his care and charge, to see the realme well gouerned, the life, mem­bers and possessions of his subiectes kept in peace and assuraunce: he that by violence shall attempt to breake [Page 51] that peace and assuraunce, hath forfeited against the scepter and crowne of England: and therefore not with­out a cause in all inquisitions and inditementes, if any be found by the xii. men to haue offended in that be­halfe, streight the prince is saide to be partie, and he that shall speake for the prisoner shall be rebuked, as speaking against the prince. Neverthelesse it is neuer defended, but the prisoner and partie defendant in any cause may alleadge for him, al the reasons, meanes and defenses that he can, and shall be peaceablie hearde and quietlie: But in those pleas & pursuites of the crowne, procurer or aduocate he gettes none,Sauing in ap­pels and vpon a speciall plea. which in ciuill and pecuniarie matters (be it for land, rent, right, or pos­session, although he plead against the prince himselfe) is neuer denied.

Pleas ciuill be either personall or reall, personall as contractes or for iniuries:Actio is the parties whole suite▪ breue is the kings pre­cept. reall be either possessorie to aske, or to keepe the possession, or in rem, which we cal a writte of right. For that which in the ciuill lawe is called actio or formula, we call writ in English: so the Greekes called it worde for word [...], and in our bar­barous latine we name it breue.

And as the olde Romanes had their actions some ex iure ciuili, and some ex iure praetorio, and ordinarily prae­tor dabat actiones & formulas actionum: so in Englande we retaine still this, and haue some writtes out of the chauncerie, other out of the common place or the kinges bench.

Of the chiefe Tribunals, benches or courtes of England. CHAP. 10.

IN times past (as may appeare to him that shall with iudgement reade the histories and antiquites of England) the courtes and benches followed the king [Page 52] and his court wheresoever he went, especially shortly after the conquest. Which thing being found very cum­bersome, paineful and chargeable to the people, it was agreed by parliament, that there shoulde be a standing place where iudgement should be giuen. And it hath long time béene vsed in Westminster hall, which king William Rufus builded for the hall of his owne house. In that hal be ordinarily séene 3. Tribunals or Iudges seates. At the entrie on the right hande, the common place, where ciuill matters are to be pleaded, specially such as touch landes or contractes. At the vpper ende of the hall, on the right hand, the kinges bench, where pleas of the crowne haue their place. And on the left hand sitteth the Chauncelor accompanyed with the master of the Roules, who in latine may be called custos archiuorum regis, and certaine men learned in the ciuill lawe called Masters of the chauncerie, in latine they may be named Assessores.

Of the times of pleading called termes, & of the Chauncelor and chauncerie. CHAP. II.

TWo things may be moued in question here, how all Englande (being so long and so large, and hauing so many shyres and prouinces therein) can be answe­red of iustice in one place, and in 3. benches be they ne­uer so great? An other (whereas the kinges bench is exercised in criminall causes and in all pleas of the crowne, and the common place in all ciuill causes, reall and personall) what place then hath the chaun­cerie?

The first question will séeme more maruelous and haue more occasion of doubt, when I shall also tell that the lawe is not open at all times, no not the third part of the yeare. But where all other cities and common [Page 53] wealthes had all the yeare pleas, suites, and iudge­mentes, except for certaine holy daies and haruest and vintage, or when for some vrgent cause the lawe was commaunded to be stopped, which is called Iustitium: Contrarie in ours, it is but fewe times open. That is onely foure times in the yeare which they call termes. After Michaelmas about ten daies, during fiue or sixe wéekes at the least. After Christmas about a moneth, enduring by the space of thrée wéekes. Then from xvij dayes after Easter by the space of thrée wéekes & odde dayes. Likewise from the sixt or seuenth day after Trinitie sunday, during two wéekes and odde daies. All the rest of the yeare there is no pleading, entring nor pursuing of actions. This small time, and all that but in one place may séeme verse iniurious to the people, who must be faine to suffer much wrong for lacke of Iustice and of place and time to pleade▪ but vn­to that héereafter I entende to answere more fully, and in the meane while that shall suffise which the wise Cato answered to one who mooued that the pleading place in Rome might be couered ouer with canuas as their theaters were, to the intent that the plaintifes and defendauntes that were there might plead their matters more at ease, and not be in so much danger of their health by the heate of the sunne striking full and open vpon their heades, which was no smal griefe and disease, specially at Rome. Nay (saith Cato) for my part I had rather with that all the waies to the place of pleading were cast ouer with galthrops that the féete of such as loue so well pleading, should féele so much paine of those prickes in going thither as their heades doe of the sunne in tarrying there: he ment that they were but idle, whot heades, busie bodies, and trouble­some men in the common wealth that did so nourish pleading: good labourers and quiet men could bee con­tent to ende their matters at home by iudgement of [Page 54] their neighbours and kinsfolke without spending so their money vpon procurers and aduocates whom we call attornies, counsellers, Sergeants, and generallie men of lawe. Those be accounted profitable citizens, who attende their honest labour and businesse at home, and not stande waiting and gaping vppon their rolles and processe in the lawe: as for the other by his iudge­ment, it was no matter what mischiefe they suffered. To the other question of the chancerie, this I answere: That our lawe which is called of vs the common lawe as ye would say Ius ciuile, is and standeth vpon [...], that is Ius summum: and their maximees be taken so straitlie that they may not depart from the tenour of the wordes euen as the olde ciuill lawe was. And therefore as that lacked the helpe of a Praetor (which might moderari illud ius summum, give actions where none was, mitigate the exactnesse and rigour of the lawe written, give exceptions, as metus, doli mali, mi­noris aetatis, &c. for remedies, and maintaine alwaies aequum & bonum:) the same order and rancke holdeth our chauncerie, and the chauncellor hath the verie au­thoritie héerein as had the Praeter in the olde ciuill law before the time of the Emperours. So he that putteth vp his bill in the chauncerie, after that he hath declared the mischiefe wherein he is, hath reléefe as in the so­lemne forum. And for so much as in this case hee is without remedie in the common lawe, therefore he re­quireth the chauncellor according to equitie and reason to prouide for him and to take such order as to good conscience shall appertaine. And the court of the chaun­cerie is called of the common people the court of consci­ence, because that the chauncellor is not strained by ri­gour or forme of wordes of lawe to iudge but ex aequo and bono, and according to conscience as I haue saide. And in this court the vsuall and proper forme of plea­ding of Englande is not vsed, but the forme of plea­ding [Page 55] by writing, which is vsed in other countries ac­cording to the ciuill lawe: and the tryall is not by xij. men, but by the examination of witnesse as in other courtes of the ciuill lawe.

Of Iudges in the common lawe of England, and the manner of tryall and pleading there. CHAP. 12.

THe Prince out of the numbers of those who haue béene Counsellers or Sergeants at the law, which be those who in latin are called causidici or aduocati, choo­seth two of the most approoued for learning, age, discre­tion, and exercise, of whom the one is called chiefe Iu­stice of the Kings bench, or simply chiefe Iustice, the o­ther chiefe Iustice of the common place, and others to the number of sixe or more, which haue each an ordina­rie fée or stipend of the Prince.

These doe sit at such daies as be terme, which may be called Dies legitimi iuridici or fasti, in their distinct places as I haue said before. There they heare the pleading of all matters which doe come before them: and in ciuill matters where the pleading is for money or land or possession, part by writing, and part by declaration and altercation of the aduocates the one with thother, it doth so procéede before them till it doe come to the issue, which the latines doe call statum causae, I doe not meane contestationem litis, but as the Rhetoritians do call statum, we doe most properly call it the issue, for there is the place where the debate and strife remaineth (as a water held in a close and darke vessel issueth out, is voided and emptied) and no where else: that stroke well striken is the departing of all the quarrelles. Is­sues or status in our lawe bee ordinarily two, facti and iuris.

Of the two manner of issues. CHAP. 13.

IF the question be of the lawe, that is if both the par­ties doe agrée vpon the fact, and each doe claime that by lawe he ought to haue it, and will still in that sort maintaine their right, then it is called a demurrer in lawe: where if in the lawe the case séeme to the Iudges that sitte doubtfull,But somtimes it is determi­ned by the same court onely. it is called a checkerchamber case, and all the Iudges will méete together, and what they shall pronounce to be the lawe, that is helde for right, and the other partie looseth his action or lande for euer. If the Sergeantes or counsellors doe stande vpon anie point in the law which is not so doubtful, the Iudges who be taken for most expert biddes him go forwarde: and if he hath no other to say but standeth vppon that point of the lawe,This shoulde be ment of a respondes ouster, when the opinion is against him that taketh an exception which is not peremptorie. that bidding goe forwarde is taken that he looseth his action, and the defendant is licensed to depart without a day: and this is where the issue or question is of the lawe or Iuris. So is that case where the lawe is not doubtfull according to the matter con­tayned in the declaration, answere, replication, reioin­der or triplication, the Iudge out of hande decideth it. And it is the manner that each partie must agrée to the other stil in y^e fact which he cannot denie. For if he once come to denie any déede as not doone, not his writing, that the man by whome the aduersarie claimeth was not the aduersaries auncestor,He may denie it by protesta­tion. or the euidence which his aduersarie bringeth is not true, or that his gift was former, or any such like exception which is vaile­able to abate the action or barre the partie: and the o­ther ioyneth in the affirmatiue and will auerre and proue the same, this is called the issue, and immediat­ly all question of the lawe ceaseth as agréed by both the [Page 57] parties, that there is no question in the lawe. Then as that issue facti is founde by the xij men of whom wee shall speake heareafter, so the one partie or other looseth his cause and action: so that contrarie to the maner of the ciuill lawe where first the fact is examined by wit­nesses, indices, tormentes and such like probations to finde out the truth thereof, and that doone the aduocats doe dispute of the law to make of it what they can: say­ing, ex facto ius oritur: héere the Sergeantes or counsel­lers before the Iudges doe in passing forewarde with their pleading determine and agrée vpon the lawe, and for the most part and in manner all actions as well cri­miniall as ciuill, come to the issue & state of some fact which is denied of the one partie, and auerred of the o­ther: which fact being tried by the xij men as they find, so the action is wonne or lost. And if a man haue many peremptorie exceptions (peremptorie excepti­ons I call onely those which can make the state and issue) because the xij men be commonly rude and igno­rant, the partie shalbe compelled to choose one exception whereupon to founde his issue, which chosen if he faile in that by the verdite of xij men, he looseth his action and cause, and the rest can serue him for nothing.

Having séene both in France and other places ma­ny deuices, edictes and ordinaunces howe to abridge proces and to finde howe that long suites in law might be made shorter: I haue not perceiued nor reade as yet so wise, so iust, and so well deuised a meane found out as this by any man among vs in Europe.

Trueth it is that where this fashion hath not béene vsed and to them to whom it is newe, it will not be so easily vnderstood, and therfore they may peraduenture be of contrarie iudgement: but the more they doe weigh and consider it, the more reasonable they shall finde it.

Howe the issue, question or status iuris is decided, I [Page 58] haue tolde: now I will shewe howe it is tryed when it doth come to the question, state or issue of the déede or fact. And first I must speake more largely of the man­ner of procéeding in the processe, and of such persons as be necessary for the execution thereof.

Of the sherife of the shire, and of the court of exchequer. CHAP. 14.

THe Romans had to execute the commaundementes of the magistrates Lictores, viatores, accensos. The ci­uill lawe sith that time hath other names, termes, and officers. The execution of the commaundementes of the magistrates in England is ordinarily doone by the sherifes. The sherife (which is as much to say as the Réeue or Bayly of the shire) is properly word for word Questor prouinciae: it is he which gathereth vppe and ac­compteth for the profittes of the shire, that come to the exchequer. The exchequer (which is fiscus principis, or aerarium publicum, and I cannot tell in what language it is called Scaccarium, some thinks that it was first cal­led statarium, because that there was the stable place to account for the reuenues of the crowne, aswell that which came of the patrimony which we cal the demeas­nes: as that which commeth of other incident acquisi­tions be they rentes, customes, tenthes, quinziesmes, taxes, subsidies, wheresoeuer the Prince or his court be according to the time and occasion) was a place sta­ble, continual and appointed for to recken and account. The hearers of the account (who in latin may be called tribuni aerarij) haue auditors vnder them which the La­tines doe call Rationales: but they are the chiefe for the accounts of the Prince, and may be called Iuridiciratio­nales, in English we cal them Barons of the exchequer, [Page 59] whereof is one who is called the chiefe Baron, as Tri­bunus or Iuridicus rationalis primus or princeps. The chiefe of all is called high treasurer of Englande, as you would say in latin Supremus aerarij anglici quaestor, or Tribunus aerarius maximus. In this court be heard Qua­druplatores (which we call promoters) which be those that in popular and penall action be delatores, hauing thereby part of the profit by the lawe assigned. In this court if anie question be, it is determined after the or­der of the common lawe of Englande by the xij men as I haue saide: and all customers which were in latin called publicarij in gréeke [...], do account in this office. The Sherife of the shire is called in our common latin vicecomes, as one would say vicarius comitis or procomes, doing that seruice to attende vpon the execution of the commaundementes of the Tribunalles or Iudges which the Earle or countie should doe, which Earle or Countey for the most part was attending vppon the Prince in the warres or otherwise about the Prince as the worde beareth, Comes principis: whereby it may appeare that the chiefe office of the Countie or Earle was to sée the kinges Justice to haue course and to bee well executed in the shire or Countie, and the Princes reuenues well answered and brought in aerarium prin­cipis, which is called of vs the treasurie.

If any fines or amerciaments, which in latin be cal­led mulctae, beleuied in any of the saide courtes vpon a­ny man or any arrerages of accountes by the latins called reliqua, of such thinges as is of customes, taxes, subsidies or any other such occasions, the same y^e sherife of the shire doth gather and is respondent therefore in the exchequer. As for other ordinarie rentes of patri­moniall landes and most commonly for the taxes, cu­stomes, and subsidies, there be particular receiuers and collectors which doe answere it into the exchequer. The sherife hath vnder him an vnder sherife at his [Page 60] charge and appointment learned somewhat in the law, especially if he be not learned himselfe, & diuers bailifes which he called errantes, whom he maketh at his plea­sure, who can knowe ech lande and person in the shire, and their abilitie to goe vppon enquestes, either to di­streine or to summon him to appeare whom the sherife shal appoint, and for this cause to the sherifes as to the minister most proper of the lawe the writtes be di­rected.

When any thing commeth to an issue of the déede or fact, there is a writ or writing directed to the she­rife of the shire where the lande is, whereupon the con­trouersie is, or where the man dwelleth of whom the money is demaunded, which writ is called venire faci­as. Then after the same effect an alias, pluries or distrin­gas according to the nature of the action to the returne of the sherife. And if for any disobedience of not com­ming and appearing there be a fine (which the latins doe call Mulcta) set vpon any iurors head, the sherife is charged with it, and taketh the distresses which in latin be called Pignora, and answereth therefore to the exchequer. The sherife also is readie by himselfe or by his vndersherife to serue aswell the Iustices of peace in their quarter sessions as y^e Iustices called Itinerantes in their great assises, when they come into the shire, which is twise in the yeare, to dispatch and voide acti­ons criminall and ciuil depending at the common law, and which be come nowe to the issue. He hath also the charge of all the prisoners cōmitted to y^e prison which we call the gaole, and when any is condemned to die, it is his charge to sée the sentence executed. To be short, he is as it were the generall minister and highest for execùtion of such commaundementes according to the lawe as the Iudges do ordaine, and this is ynough for the sherife.

Of the xij men. CHAP. 15.

OF what manner and order of men in the common welth the xij men be I haue alreadie declared. The sherife alwaies warneth xxiiij to appeare, least perad­uenture any might be sicke or haue a iust cause of ab­sence: and if there be not enowe to make an enquest, the absentes be amersed. For although they be called xii men as a man would say duodecim viri, yet if they be xvj, xx or the whole number of xxiiij, that is no matter, xij they must be at the least to make an enquest or as some call it a quest. An enquest or quest is called this lawefull kinde of tryall by xii men. In actions ciuill which is either of contractes or for lande or possession when so many of those which be warned appeare at the call as be able to make an enquest, which as I saide be­fore be no lesse then xii, either part when they be come taketh their chalenges against so many of them as they will, which be that he may not spende so much lande a yeare, he is alied, féed, or seruant to his aduerse partie, he is his enemie &c. And two of the whole number doe trie and allowe or disallowe the rest. If after excepti­ons there be so many reiected that there is not a full enquest, in some cases that day is lost, in some the en­quest is filled ex circumstantibus: when the quest is ful, they be sworne to declare the truth of that issue accor­ding to the euidence and their conscience. Then the Sergeantes of either side declare the issue, and each for his client sayth as much as he can. Euidences of wri­tinges be shewed, witnesses be sworne, & hearde before them, not after the fashion of the ciuill law but openly, that not only the xii, but the Iudges, the parties and as many as be present may heare what ech witnesse doeth [Page 62] say: The aduerse partie or his aduocates which wee call counsellers and sergeants interrogateth sometime the witnesses,That is not order but a­buse. and driueth them out of countenance. Al­though this may séeme strange to our ciuillians now, yet who readeth Cicero and Quintillian well shall sée that there was no other order and maner of examining witnesses or deposing among the Romans in their time. When it is thought that it is enough pleaded be­fore them, and the witnesses haue saide what they can, one of the Iudges with a briefe and pithie recapitulati­on reciteth to the xii in summe the argumentes of the sergeantes of either side, that which the witnesses haue declared, and the chiefe pointes of the euidence shewed in writing, and once againe putteth them in minde of the issue, and sometime giueth it them in writing, de­liuering to them the euidence which is shewed on ei­ther part, if any be, (euidence héere is called writings of contractes autentical after the manner of England, that is to say, written, sealed, and deliuered) and bid­deth them goe together. Then there is a baylife char­ged with them to kéepe them in a chamber not farre off without bread, drinke, light, or fire vntill they be a­gréed, that is, till they all agrée vpon one verdite con­cerning the same issue, and vppon one among them who shall speake for them all when they be agreed: for it goeth not by the most part, but each man must agrée. They returne and in so fewe wordes as may be they giue their determination: fewe I call vj or vij or viij wordes at the most (for commonly the issue is brought so narrow, that such number of words may be ynough to affirme or to denie it) which doone they are dismissed to goe whither they will.Courtisie and not dutie. The partie with whom they haue given their sentence, giueth the enquest their din­ner that day most commonly, and this is all that they haue for their labour, notwithstanding that they come some xx some xxx or xl miles or more, to the place [Page 63] where they giue their verdite all, the rest is of their owne charge. And necessarilie all the whole xij must be of the shire and iiij of them of the hundred where the lande lyeth which is in controuersie, or where the par­tie dwelleth who is the defendant.

Of parties of Shires called hundreds, lathes, rapes, wapentakes. CHAP. 16.

AN hundred, or lath, rape, or wapentake be called of the diuisions or partes of shires in diuers coun­tries diuersly named after the manner and language of each countrey. For the shires be diuided some into x. xij. xiij. xvj. xx. or xxx hundreds, more or lesse, either that they were at the first C. townes & villages in ech hundred: and although now they be but xvj. xx. xxx. xl. l. lx. more or lesse, yet it is still called an hundred, or else there were but so many at the first as be nowe, or a fewe more or lesse, and they did finde the king to his warres an hundred able men. Lath, and rape I take to be names of seruice, for that so many townes in old time, and in the first pouertie of the Realme did méete together in one day to carrie the Lordes corne into his barne, which is called in olde English a Lath. Or that they mette at commaundement of the Lorde to reape his corne.

Wapentake I suppose came of the Danes or per­aduenture of the Saxons. For that so manie townes came by their orders then, to one place, where was ta­ken a mouster of their armour and weapons, in which place from them that could not finde sufficient pledges for their good abearing, their weapons were taken a­way: weapen or wapen in olde English doe signifie all armes offensiue, as sworde, dagger, speare, launce, bill, [Page 64] bowes, arrowes.

Of the place where the monsters were taken or where the saide seruices were doone, the hundreds, Lathes, Rapes, and wapentakes had and haue yet their names, which be most commonly good townes, and it is to be thought at the first they were all such. But sometime nowe in places whereof the hundred hath the name,Hundreds were named of townes, hils, or other markes. no mention nor memorie of a towne remaineth, such mutation time bringeth with it of all thinges. A hundred hath one or two high Consta­bles, who hath some authoritie ouer all the lower, and particular Constables. Those high Constables bee made by the Iustices of the peace of the shire, and each hundred hath his baylife, who is made by the Lorde if any hath that libertie, or else by the sherife of the shire for the time being.

Of the court Baron. CHAP. 17.

IT may appeare strange that of xxxvj shires, whereof each shire is diuided into diuers hundreds, each hun­dred containing diuerse parishes, all pleading should be but in one place, that is in Westminster hall, and that but in certaine times of the yeare, making little more than one quarter of the yeare in the whole. And one would thinke y^e there should be much lacke of Iu­stice & right, and much wrong taken without redresse. But it is not so: The people being accustomed to liue in such an equalitie of Iustice, & that in such sort that y^e rich hath no more aduantage therein than the poore, the proces, and procéedinges to the iudgement being so short, and iudgementes also being peremptorie and without appellation: Yet to helpe for small matters, where no great summe is in question there are other [Page 65] courtes. In euerie shire from thrée wéekes to thrée wéekes the sherife for small thinges not passing xl. s. and in certaine hundreds and liberties the baylie like­wise from thrée wéekes to thrée wéekes holdeth plea. And whosoever is possessioner and owner of a mannor, may holde from thrée wéekes to thrée wéekes, or at his pleasure of his tennantes and amongest his tennantes a court called a court Baron. And there his tennantes being sworne make a Iurie which is not called the en­quest, but the homage. These principallie doe enquire of the copie holders, and other frée holders that be dead sith the last court, and bring in their heires, and next successours, and likewise of incrochment or intrusion of anie of the tennantes against the Lorde, or among themselues. They make orders and lawes amongest themselues, the paine of them if they be after broken, commeth to the Lorde. And if anie small matter be in controuersie, it is put to them, and commonly they doe ende it. But these courtes doe serue rather for men that can be content to be ordered by their neighbours, and which loue their quiet and profit in their husban­drie, more than to be busie in the lawe. For whether partie soeuer will, may procure a writte out of the higher court to remooue the plea to Westminster.

In cities and other great townes there be diuerse li­berties to holde plea for a bigger summe, which doe de­termine aswell as the common lawe, and after the same manner, and yet for them that will, it may be remooued to Westminster hall.

King Henry the eight ordained first a president, Counsellers and Iudges, one for the marches of Wales, at Ludlowe, or else where: an other for the north parts of Englande at Yorke, where be manie causes determined. These two are as be Parliaments in Fraunce. But yet if there be anie matter of great consequence, the partie may mooue it at the first, or re­mooue [Page 66] it afterwardes to Westminster hall, and to the ordinarie Iudges of the Realme, or to the Chancel­ler, as the matter is.

These two courtes doe heare matters before them, part after the common lawe of Englande, and part af­ter the fashion of the chauncerie.

Of the Leete or lawe day. CHAP. 18.

LEete or law day is not incident to euerie mannor, but to those onely which by special graunt, or long prescription haue such libertie. This was as it may appeare first a special trust and confidence and com­mission giuen to a fewe put in trust by the Prince, as is nowe to the Iustices of peace, to sée men sworne to the Prince, to take pledges and suerties in that maner of one for an other to answere for obedience and truth, to enquire of priuie conspiracies, fraies, murders, and bloudsheddes, and to this was added the ouersight of bread and ale, and other measures. Many times they that be out of the homage and court Baron of that mannor and Lordship, be neuerthelesse astreined and answerable to come to the Léete. This Léete is ordi­narily kept but twise in the yeare, and that at termes and times prescribed.

The Léete or Lawe day is all one, and betokeneth worde for worde, legittimum or iuridicum diem. Lawe the olde Saxons called lant or lag, and so by corrupti­on and chaunging of language from Lant to Leete, vnderstanding day. They which kéepe our full english terme, call it yet lawe day.

Of the proceedinges of causes cri­minall, and first of the Iustices of the Peace. CHAP. 19.

BEfore the maner of procéeding in causes criminall can be well vnderstood, it will be necessarie to speake of thrée persons, the Iustices of peace, the Coroners, and the Constables. The Iustices of peace be men e­lected out of the nobilitie, higher and lower, that is the Dukes, Marquisses, Barons, Knightes, Esquiers, and Gentlemen, and of such as be learned in the lawes, such and in such number as the Prince shall thinke méete, and in whome for wisedome and discretion he putteth his trust, inhabitantes within the countie▪ sa­uing that some of the high nobilitie and chiefe magi­strates for honors sake are put in all, or in the most of the commissions of all the shires of England. These haue no time of their rule limited but by commission from the Prince alterable at pleasure.

At the first they were but iiij, after viij, nowe they come commonly to xxx or xl in euerie shire, either by increase of riches, learning, or actiuitie in policie and gouernement. So many more beeing founde, which haue either will, or power, or both, are not too manie to handle the affaires of the common wealth in this behalfe. Of these in the same commission be certaine named, which be called of the Quorum, in whome is e­speciall trust reposed, that where the commission is gi­uen to xl or xxx, and so at the last it commeth to iiij or thrée, it is necessarie for the performance of many af­faires to haue likewise diuerse of the Quorum. The wordes of the commission be such, Quorum vos A B. C D. E F. vnum esse volumus.

The Iustices of the peace be those in whom at this [Page 68] time for the repressing of robbers, théeues, and vaga­bunds, of priuie complots, and conspiracies, of riotes, and violences, and all other misdemeanors in the cō ­mon wealth, the Prince putteth his special trust. Each of them hath authoritie vpon complaint to him made of any theft, robberie, manslaughter, murder, violence, complotes, riottes, vnlawefull games, or any such di­sturbance of the peace, and quiet of the Realme, to cō ­mit the persons whom he supposeth offendors, to the prison, and to charge the Constable or sherife to bring them thither, the gaoler to receaue them and kéepe them till he and his fellowes doe méete. A fewe lines signed with his hande is ynough for that purpose▪ these doe méete foure times in the yéere, that is, in each quar­ter once, to enquire of all the misdemeanors aforesaide: at which daies the sherife, or his vndersherife with his baylifes be there to attende vppon him, who must pre­pare against that time fower enquestes of xxiiij yeo­men a péece of diuerse hundredes in the shire,This is not al­waies and in al places obser­ued, but onely concerning the graund en­quest. and be­sides one which is called the great enquest out of the bodie of the shire mingled with all. These fiue enquests are sworne before them to enquire of all heretiques, traitors, theftes, murders, manslaughters, rapes, false moniers, extortioners, riottes, routes, forcible entries, vnlawefull games, and all such thinges as be contrarie to the peace and good order of the Realme, & to bring in their verdict. If they among themselues vpon their owne knowledge doe finde any culpable, they cause one of the clerkes to make the bill. And if any be there to complaine vppon any man for these faults, he putteth in his bil, which bil is presented first to the Iustices sitting vpon the bench, to sée if it be con­ceived in forme of lawe, which doone the complainant doth deliuer it to one of these enquests, & after the com­plainant is sworne, he declareth to thē what he can, for y^e profe of it. And if they finde it true they do nothing but [Page 69] write on the backeside of it billa vera, as ye would say, scriptum verum: or accusatio iusta, or reus est qui accusa­tur: Then he who is there named is called indicted.

If they do not finde it true, they write on the back­side ignoramus, & so deliuer it to the Iustices of whome it is rent into péeces immediatly: he that is indicted is accounted a lawefull prisoner, and after that time loo­ked more streitly vnto. For this inditement is no conuiction: and if he be indicted, and be not alreadie in prison, the sherife if he can finde him, bringeth him into prison: if he cannot finde him, proces is made out against him, to render himselfe prisoner, or else hee shalbe outlawed.The vse of ca­pias and exi­gent vpon inditementes is otherwise. So he is called thrée times in diuerse countie daies to render himselfe to the lawe. The fourth is called the exigent, by which he is outlawed not rendring himselfe, as ye would say: exactus or ac­tus in exilium. The outlawe looseth all his goods to the King for his disobedience. But if after he wil render himselfe to answere to the lawe, and shewe some rea­sonable cause of his absence, manie times of grace his outlawerie is pardoned. These méetinges of the Iu­stices of peace foure times in the yeare,They are put to fines. be called quar­ter sessions or sessions of enquirie, because that no­thing is there determined touching the malefactors, but onely the custodie of them: and this kinde of pro­céeding which is by inquisition of the xij men within themselues, and their owne consciences, or by denun­ciation of him that putteth in his bill to the xii, is cal­led at the kings suite, and the king is reckoned the one partie, and the prisoner the other. The Iustices of the peace doe méete also at other times by commandement of the Prince vpon suspition of warre, to take order for the safetie of the shire, sometimes to take musters of harnes and able men, and sometime to take orders for the excessiue wages of seruaunts and labourers, for excesse of apparell, for vnlawefull games, for con­uenticles [Page 70] and euill orders in alehouses, and tauernes, for punishment of idle and vagabund persons, and ge­nerally as I haue saide, for the good gouernement of the shire, the Prince putteth his confidence in them. And commonly euery yeare, or each seconde yeare in the beginning of summer or afterwardes, (for in the warme time the people for the most part be more vn­rulie) euen in the calme time of peace, the Prince with his counsell chooseth out certaine articles out of pe­nall lawes alreadie made for to represse the pride and euill rule of the popular, and sendeth them downe to the Iustices, willing thē to looke vpon those pointes, and after they haue mette together and consulted a­mong themselues, howe to order that matter most wisely and circumspectly, whereby the people might be kept in good order and obedience after the lawe, they diuide themselues by thrée or foure: and so each in his quarter taketh order for the execution of the saide arti­cles. And then within certaine space they méete againe and certifie the Prince or his priuie counsell how they do finde the shire in rule & order touching those pointes and all other disorders. There was neuer in any com­monwealth diuised a more wise, a more dulce and gen­tle, nor a more certaine way to rule the people, where­by they are kept alwaies as it were in a bridle of good order, & sooner looked vnto that they should not offend, than punished when they haue offended. For séeing the chiefe amongst them, their rulers to haue this spe­ciall charge and doe call vpon it, and if occasion so doe present, one or two presently either punished or sent to prison for disobedience to those olde orders & lawes, they take a feare within themselues, they amende and doe promise more amendment. So that it is as a newe forbushing of the good lawes of the realme, and a con­tinuall repressing of disorders, which doe naturally rest among men. But as the inuention of this, and [Page 71] the vse and execution thereof is the most benefitte that can be deuised for the common wealth of Englande: So when it shalbe misused, dissembled with, or be con­temned, & be doone pro forma tantum, and as they terme it in Fraunce par mainere d' acquit onely, it will be the present ruine (though not at the first apperceiued) of the common wealth. Of which the fault may be as well in the commaunders for not making good choice what and howe they commaunde, as in the comman­ded, for not executing that which is commaunded.

Of hue and crie and recognisaunce taking vppon them that may giue euidence. CHAP. 20.

BY the olde lawe of Englande if any theft, or robbe­rie be doone, if he that is robbed, or he that séeth or perceiueth that any man is robbed doe leuie hue & crie, that is to say, doe call and crie for aide, and say that a theft or robberie is doone contrarie to the Princes peace and assurance: The Constable of the village to whom he doth come, and so make that crie, ought to raise the parish to aide him and séeke the théefe, and if the théefe be not founde in that parish, to go to the next and raise that Constable, and so still by the Constables and them of the parish one after an other. This hue and crie from parish to parish is caried, till the théefe or robber be founde. That parish which doeth not his dutie, but letteth by their negligence the théefe to de­part, doth not onely paie a fine to the king, but must repaie to the partie robbed his dammages. So that e­uerie English man is a sergiant to take the théefe, and who sheweth himselfe negligent therein, doth not only incurre euill opinion therefore, but hardly shall escape [Page 72] punishment: what is doone with the théefe or robber when he is taken, I shall shewe you heereafter. The same manner is followed if anie man bee slaine, for streight the murtherer is pursued of euerie man till he be taken. So soone as any is brought to the Iustices of peace by this hue or crie, by the Constable or anie o­ther who doth pursue the malefactor, he doeth examine the malefactor, and writeth the examinations and his confession: then he doth binde the partie that is robbed or him that sueth, and the Constable, and so manie as can giue euidence against the malefactor to be at the next sessions of gaole deliuerie to giue their euidence for the Quéene. He bindeth them in recognisance of xl. xxl. xxxl. xll. or C. l. according to his discretion, and the qualitie of the crime: which certified vnder his hande, is leuied vpon the recognizance if they faile of being there.

Of the Coroner. CHAP. 21.

BVt if anie man, woman, or child, be violently slaine, the murtherer not knowen, no man ought or dare burie the bodie before the Coroner hath séene it. The Coroner is one chosen by the Prince of the meaner sort of gentlemen, and for the most part a man séene in the lawes of the Realme to execute that office. And if the person slaine, (slaine I cal here, whosoeuer he be, man, woman, or childe, that violently commeth to his death, whether it be by knife, poyson, cord, drowning, burning, suffocation, or otherwise, be it by his owne fault or default, or by any other) if (I say) the person slaine be buried before the Coroner doe come (which for the most part men dare not doe) he doeth cause the bodie to be taken vp againe, and to be searched, and [Page 73] vppon the sight of the bodie so violently come to his death, he doth empanell an enquest of xij men or mo, of those which come next by, be they strangers or in­habitantes, which vpon their othes, and by the sight or viewe of the bodie, and by such informations as they can take, must search howe the person slaine came to his death, and by whome as the doer or causer thereof. These are not inclosed into a streit place, (as I tolde before of other enquestes) but are suffered to goe at large, and take a day, sometime after xx or xxx daies, more or lesse, as the fact is more euident, or more kept close, to giue their euidence, at which day they must ap­peare there againe before the saide Coroner to giue their verdict. So sometime the person slaine himselfe, sometime the brother, the husbande, the wife, the si­ster, some of acquaintance or stranger, such as God wil haue reueiled, be taken. For whosoeuer they doe finde as guiltie of the murder, he is streight committed to prison, and this is against him in the nature of an in­ditement which is not a full condemnation, as ye shall sée héereafter.

The empanelling of this enquest, and the viewe of the bodie, and the giuing of the verdict, is common­ly in the stréete in an open place, and in Corona populi: but I take rather that this name commeth because that the death of euerie subiect by violence is accounted to touch the crowne of the Prince, and to be a detri­ment vnto it, the Prince accounting that his strength, power, and crowne doth stande and consist in the force of his people, and the maintenaunce of them in securi­tie and peace.

Of the Constables. CHAP. 22.

THese men are called in the elder bookes of our lawes of the Realme custodes pacis, and were at the first in greater reputation than they be nowe. It may ap­peare that there was a credit giuē vnto them not alto­gether vnlike to that which is now giuen to the Iusti­ces of peace. To this day if any affraie chaunce to be made, the Constables ought and will charge them that be at debate to kéepe the Princes peace: and whosoeuer refuseth to obey the Constable therein, all the people will set streight vpon him, and by force make him to render himself to be ordered. Likewise if any be suspe­cted of theft, or receiuing, or of murther, or of man­slaughter, the Constable may take such persons, yea enter into any mans house with sufficient power to search for such men till he finde them: and if hee sée cause kéepe the suspected persons in the stockes, or cu­stodie, til he bring them before a Iustice of the peace to be examined. But for so much as euerie litle village hath commonly two Constables,One or two Constables, hedboroughes or tithingmen. and many times ar­tificers, labourers and men of small abilitie be chosen vnto that office, who haue no great experience, nor knowledge, nor authoritie, the Constables at this present (although this they may do vppon their owne authoritie) yet they séeme rather to be as it were the executors of the commaundement of the Iustices of peace. For the Iustice of peace as soone as he vnderstan­deth by complaint that any man hath stolen, robbed, slaine, or any seruant or labourer without license hath departed out of his maisters seruice, or any that liueth idle and suspectly, knowing once in what parish he is, he writeth to the Constable of the parish, cōmanding [Page 75] him in the Princes name to bring that man before him: the Constable dareth not disobey. The man is brought and examined by the Iustice, and if the Iustice doe finde cause, hee committeth him to the same Con­stable to conuey him further to the Princes gaole, where the partie must lie till the Iustices of peace doe méete either at their quarter sessions, or at their gaole deliuerie, and that the lawe hath either condemned or acquited him. These Constable are called in some places headborowes, in some places tithingmen, and be like to them, who are called Consuls in manie townes and villages in Fraunce. The Constables are commonlie made and sworne at the Léetes of the Lordes, chosen thereto by the homage, and they kéepe that office sometime ij. iij or iiij yeare, more or lesse, as the parish doth agrée. What headborow doth betoken it is easily knowen, our language doth declare him as the head or chiefe of the borowe or village: likewise tithing man is the chiefe of y^e tithing. Constable sée­meth to me to come of our old English worde kinnyng, which is Kinnyngstable, as ye would say a mā establi­shed by the king, for such thinges as appertaineth to pleas of the crowne & conseruation of the Kings peace, & as I saide at the first were in some more reputation, approching to that authoritie which the Iustices of peace nowe doth holde.

Of the sessions of gaole deliuerie, and the definitiue proceedinges in causes criminall. CHAP. 23.

HOwe théeues and murtherers and other malefa­ctors against the crowne and the peace are taken & brought into holde to answere to iustice, partly by hue [Page 76] and crie, partly by information, and partly by the dili­gence of the Justices of peace and the Constables, and howe that at the quarter sessions they be indicted, or else by the Coroners yee haue hearde before. Endite­ment (as yee may perceive by that which is also gone before) is but a former iudgement of xij men which be called enquirers, and no definitiue sentence, but that which in latin is called praeiudicium, it doth but shewe what opinion the countrey hath of the malefactor: and therefore commonly men be endicted absent, not called to it, nor knowing of it. For though a man be endicted, yet if when he come to the arainement, there be no man to pursue further, nor no euidence of witnesse or other triall and indices against him, he is without dif­ficultie acquited. No man that is once indicted can be deliuered without arainement. For as xij, haue giuen a preiudice against him, so xii againe must acquite or condemne him. But if the prisoner be not indicted, but sent to prison vpon some suspition or suspitious beha­uiour, and none doe pursue him to the enditement, first being proclaimed thus. A. B. prisoner standeth héere at the barre, if any man can say anything against him, let him now speake, for the prisoner standeth at his de­liueraunce; if no man doe then come, hee is deliuered without any further proces or trouble, agréeing first with the gaoler for his fées. And these be called acquited by proclamation. Twise euerie yeare the one is com­monly in lent what time there is vacation from plea­ding in Westminster hall, the other is in the vacation in summer. The Prince doth sende downe into euerie shire of Englande certaine of his Iudges of Westmin­ster hall, and some Sergeantes at the lawe with com­mission to heare and determine ioyntly with the Justi­ces of the peace all matters criminall and all prisoners which be in the gaoles. These Iudges doe goe from shire to shire till they haue doone their circuit of so ma­nie [Page 77] shires as be appointed to them for that yeare: at the ende of the terme going before their circuit it is written and set vp in Westminster hall on what day and in what place they will be. That day there mée­teth all the Justices of the peace of that shire, the she­rife of that shire, who for that time beareth their char­ges, and asketh after allowance for it in the Exche­quer. The shirife hath readie for criminall causes (as I writ before at the sessions of inquirie) iiii. v. or vi. enquestes readie warned to appeare that day to serue the Prince, and so manie more as he is commaunded to haue readie to go in civill matters betwixt priuate men, which they call Nisi prius, because that worde is in the writ.

In the towne house, or in some open or common place, there is a tribunall or place of iudgement made aloft vpon the highest bench, there sitteth the two Jud­ges which be sent downe in Commission in the midst. Next them on eche side, sitteth the Justices of peace, according to their estate and degrée. In a lower bench before them, the rest of the Justices of the peace, and some other gentlemen or their clarkes. Before these Iudges and Justices, there is a table set beneath, at which sitteth the Custos rotulorum, or kéeper of writtes, Thexchetor, the vndershirife, and such clarkes as doe write. At the end of that table, there is a barre made with a space for thenquestes and xii. men to come in when they are called, behind that space another barre, and there stand the prisoners which be brought thither by the gaoler all chained one to another. Then the cryer crieth, and commaundeth silence. One of the Iudges briefely telleth the cause of their comming, & giueth a good lesson to the people. Then the prisoners are called for by name, and bidden to aunswere to their names. And when the Custos rotulorum hath brought foorth their enditements, the Iudges do name one or [Page 78] two or thrée of the prisoners that are endicted, whom they will haue arraigned. There the clarke speaketh first to one of the prisoners: A. B. come to the barre, hold vp thy hand. The clarke goeth on: A. B. thou by the name of A. B. of such a towne, in such a countie, art endicted, that such a day, in such a place, thou hast stolen with force and armes an horse, which was such ones, of such a colour, to such a valor, and carried him away feloniously, & contrarie to the peace of our soueraigne Ladie the Quéene. What sayest thou to it, art thou guiltie or not guiltie▪ If he will not aunswere, or not aunswere directly guiltie or not guiltie, after he hath béene once or twise so interrogated, he is iudged mute, that is dumme by contumacie, and his condemnation is to be pressed to death, which is one of the cruellest deathes that may be: he is layd vpon a table, and an other vppon him, and so much weight of stones or lead laide vppon that table, while as his bodie be crushed, & his life by that violence taken from him. This death some strong & stout hearted man doth choose, for being not condemned of felonie, his bloud is not corrupted, his lands nor goods confiscate to the Prince, which in all cases of felonie are commonly lost from him and his heires, if he be foreiudged, that is condemned for a fe­lon by the lawe. If he confesse the enditement to be true, then when he is arraigned, no xii, men goeth vp­on him, there resteth but the Iudges sentence, of the paine of death.

If he pleade not guiltie, as commonly all théeues, robbers, & murtherers doe, though they haue confessed the fact before the Justice of the peace that examined them, though they be taken with the maner, which in Latine they call inflagranti crimine, howesoever it be, if he pleade there not guiltie, the Clarke asketh him howe he will be tryed, and telleth him he must saie, by God and the Countrie, for these be the words formall [Page 79] of this triall after Inditement, and where the Prince is partie: if the prisoner doe say so, I will be tryed by God and the Countrie, then the Clarke replyeth, Thou hast béene endicted of such a crime, &c. Thou hast pleaded not guiltie: being asked how thou wilt be tryed, thou hast aunswered by God and by the Coun­trie. Loe these honest men that be come here, be in the place and stead of the Countrie: and if thou hast any thing to say to any of them, looke vpon them well and nowe speake, for thou standest vpon thy life & death. Then calleth he in the first Juror, B. C. come to the booke, and so giueth him an othe to goe uprightlie be­twixt the Prince and the prisoner, &c. If the prisoner obiecteth nothing against him, he calleth an other, and so an other, till there be xii. or aboue: and for the most part the prisoner can say nothing against them, for they are chosen but for that day, and are vnknowen to him, nor they know not him, as I said being substantial yeomen, that dwell about the place, or at the least in the hundred, or néere where the felonie is supposed to be committed, men acquainted with daily labour and trauaile, and not with such idle persons, as be readie to doe such mischiefes.

When the enquest is full, and the prisoner hath ob­iected nothing against them, as in déede seldome he doeth, for the cause aboue rehearsed: The clarke saith to the cryer, countes, (in French as ye would say rec­ken) and so nameth all those that be on the quest. The crier at euerie name cryeth aloude, one, then ij. iij. iiij. and so till the number be full of xii. or more, & then saith good men and true: and then sayth aloude: If any can give euidence, or can saie any thing against the prisoner, let him come nowe, for he standeth vpon his deliuerance. If no man come in, then the Iudge as­keth who sent him to prison, who is commonly one of the Justices of peace. He if he be there deliuereth vp the [Page 80] examination which he tooke of him, and vnderneath the names of those whom he hath bound to giue euidence, although the malefactor hath confessed the crime to the Iustice of the peace, and that appeare by his hande and confirmation, the xij. men will acquite the priso­ner, but they which should giue euidence pay their re­cognizaunce. Howbeit this doth seldome chaunce, ex­cept it be in small matters, and where the Iustices of peace, who sent the prisoner to the gaole, is away. If they which be bound to giue euidence come in, first is read the examination, which the Iustice of peace doeth giue in: then is heard (if he be there) the man robbed what he can say, being first sworne to say trueth, and after the Constable, and as many as were at the ap­prehension of the malefactor: and so many as can say any thing being sworn one after an other to say truth. These be set in such a place as they may sée y^e Iudges and the Iustices, the enquest and the prisoner, & heare them, and be heard of them all. The Iudge first after they be sworne, asketh first the partie robbed, if he knowe the prisoner, and biddeth him looke vpon him: he saith yea, the prisoner sometime saith nay. The partie pursuiuaunt giueth good ensignes verbi gratia, I knowe thée well ynough, thou robbedst me in such a place, thou beatest mée, thou tookest my horse from mée, and my purse, thou hadst then such a coate and such a man in thy companie: the théefe will say no, and so they stand a while in altercation, then he telleth al that he can say▪ after him likewise all those who were at the apprehension of the prisoner, or who can giue any indices or tokens which we call in our language euidence against the malefactor. When the Iudge hath heard them say inough, he asketh if they can say any more: if they say no, then he turneth his spéeche to the enquest. Good men (saith he) ye of the enquest, ye haue heard what these men say against the [Page 81] prisoner, you haue also heard what the prisoner can say for himselfe, haue an eye to your othe, and to your duetie, & doe that which God shall put in your mindes to the discharge of your consciences, and marke well what is saide. Thus sometime with one enquest is passed to the number of ij, or iij. prisoners: For if they should be charged with more, the inquest will say, my Lord, we pray you charge vs with no more, it is y­nough for our memorie. Many times they are charged but with one or two. At their departing, they haue in writing nothing giuen them, but the enditement, the clarke repeating to them the effect of it, and shewing more, that if they finde him guiltie, they shall enquire what goods, lands, and tenements, the saide person had at the time of the felonie committed: and if they finde any, they shal bring it in: if no, they shal say so. If they finde him not guiltie, they shall enquire whether he fled for the felonie or no.

And there is a bailife to waite vpon them, and to sée that no man doe speake with them, and that they haue neither bread, drinke, meate, ne fire brought to them, but there to remaine in a chamber together till they a­grée. If they be in doubt of any thing that is saide, or would heare againe some of them that giue euidence to interrogate them more at full, or if any that can giue euidence come late: it is permitted that any that is sworne to say the trueth, may be interrogated of them to enforme their consciences. This is to be vnderstood although it will séeme straunge to all nations that doe vse the ciuill Lawe of the Romane Emperours, that for life and death there is nothing put in writing but the enditement onely. All the rest is doone openlie in the presence of the Iudges, the Iustices, the enquest, the prisoner, and so manie as will or can come so neare as to heare it, and all depositions and witnesses giuen aloude, that all men may heare from the mouth of the [Page 82] depositors and witnesses what is saide. As of this, so is it of all other prisoners after y^e same sort. By that time that the enquests for the prisoners be dispatched, it is commonlie dinner time, the Iudges and Iustices goe to dinner, and after dinner returne to the same place: if the enquest be not readie for the prisoners, they goe to some other enquests of nisiprius, which be ciuill mat­ters and priuate to driue out the time. The enquests haue no sooner agréed vpon their charge one way or o­ther but they tell the Bailife, and pray to be heard, and considering that they be themselues all this while as prisoners as I saide before, it is no maruell, though they make expedition. The prisoners be sent for a­gaine to the barre, the enquest which hath agréed, is called for eche one of the Iurie by his name, to which he answereth. Then the clarke asketh if they be agréed, and who shall speake for them. One or moe saith yea. He that speaketh for them all is called the foreman, and commonlie it is he that is first sworne: then the prisoner is bidden to holde vp his hande. The clarke saith vnto him, Thou art endicted by the name of A. of such a place, &c. being therefore arraigned thou plea­dest thereto not guiltie, being asked howe thou would be tryed, thou saydst by God and thy countrie. These honest men were giuen to thee by God & thy Prince for thy Countrey: Hearken what they say. Then he as­keth of the enquest, what say you? Is he guiltie or not guiltie? The foreman maketh aunswere in one worde, guiltie, or in two, not guiltie: the one is dead­lie the other acquiteth the prisoner. So that neither Iudge nor Iustice hath to doe, or can reuerse, alter or chaunge that matter, if they say guiltie. The clarke asketh what landes, tenements, or goods, the prisoner had at the time of the felonie committed, or at any time after. Commonlie it is aunswered that they knowe not, nor it shall not greatly néede, for the Sherife is [Page 83] diligent enough to enquire of that, for the Prince and his owne aduantage, and so is the excheator also.

Of him whom the xij. men pronounce guiltie, the Iudge asketh what he can say for himselfe: if he can reade, demaundeth his Clergie. For in many felo­nies, as in theft of oxen, shéepe, money, or other such things which be no open robberies, by the high way side, nor assaulting one by night in his house, putting him that is there in feare, such is the fauour of our Lawe, that for the first fault the felon shalbe admitted to his Clergie, for which purpose the Bishop must send one with authoritie vnder his seale to be Iudge in that matter at euerie gaole deliuerie. If the condemned man demandeth to be admitted to his booke, the Iudge commonly giueth him a Psalter, and turneth to what place he will. The prisoner readeth as well as he can (God knoweth sometime very slenderly:) then he as­keth of the Bishops commissarie, legit vt clericus? The commissarie must say legit or non legit, for these be wordes formall, and our men of Lawe be very precise in their words formall. If he say legit, the Iudge pro­céedeth no further to sentence of death: if he say non, the Iudge foorthwith, or the next day procéedeth to sen­tence, which is doone by word of mouth onelie: Thou A. hast béene endicted of such a felonie and thereof ar­raigned, thou hast pleaded not guiltie, and put thy selfe vpon God and thy Countrie, they haue found thée guiltie, thou hast nothing to say for thy selfe, the Lawe is, thou shalt first returne to the place from whence thou camest, from thence thou shalt goe to the place of execution, there thou shalt hang till thou be dead. Then he saith to the Sherife, Sherife doe ex­ecution: he that claimeth his Clergie, is burned forth­with in the presence of the Iudges in the brawne of his hand with a hot yron marked with the letter T. for a théefe, or M. for a mansleer, in cases where Cler­gie [Page 84] is admitted,The deliuerie to the Bishops prison, and the purgation is taken away by statute. and is deliuered to the Bishops officer to be kept in the Bishops prison, from whence after a certaine time by an other enquest of Clarkes he is deli­uered and let at large: but if he be taken and condem­ned the second time, and his marke espied, he goeth to hanging. He whom the enquest pronounceth not guil­tie is acquitted foorthwith and discharged of prison, paying the gaolers fées: and if he knowe any pri­uate man who purchased his inditement, and is able to pursue it,They must be two at the least that conspired. he may haue an action of conspiracie a­gainst him, and a large amendes: but that case chaun­ceth seldome.

Certaine orders peculiar to England, touching punishment of malefactors. CHAP. 24.

FOr any felonie, manslaughter, robberie, murther, rape, and such capitall crimes as touch not treason & laesam maiestatem, we haue by the Lawe of England no other punishment, but to hang till they be dead: when they be dead, euerie man may burie them that will, as cōmonly they be. Heading, tormenting, demembring, eyther arme or legge, breaking vpon the whéele, empa­ciling, & such cruel torments, as be vsed in other nati­ons by the order of their law, we haue not: & yet as few murthers cōmitted as any where: nor it is not in the Iudges or the Iustices power, to aggrauate or miti­gate the punishment of the Lawe, but in the Prince onely and his priuie Counsell, which is maruellous seldom done. Yet notable murtherers many times by the Princes commaundement, after they be han­ged with corde till they be dead, bee hanged with chaines while they rotte in the ayre. If the wife kill her husbande, shée shall be burned aliue. If the [Page 85] seruaunt kill his master, hee shalbee drawen on a hurdle to the place of execution: it is called petit trea­son. Impoisoners,Quere. if the person die thereof, by a new lawe made in king Henrie the eights time shalbe boy­led to death: but this mischiefe is rare and almost vn­knowen in England. Attempting to impoison a man, or laying await to kill a man, though he wound him daungerously, yet if death followe not, is no fellony by the lawe of Englande, for the Prince hath lost no man, and life ought to be giuen we say, but for life on­ly. And againe, when a man is murdered, all be prin­cipals and shall die, euen he that doth but hold the can­del to giue light to the murderers. For mitigation and moderation of paines, is but corruption of Iudges as we thinke. Likewise, torment or question which is vsed by the order of the ciuill lawe and custome of o­ther countreis to put a malefactor to excessiue paine, to make him confesse of him selfe, or of his fellowes or complices, is not vsed in England, it is taken for ser­uile. For what can he serue the common wealth after as a frée man, who hath his bodie so haled and tormen­ted, if he be not found guiltie, and what amends can be made him? And if he must die, what crueltie is it so to torment him before? Likewise, confession by torment is estéemed for nothing, for if he confesse at the iudge­ment, the tryall of the xij. goeth not vpon him: If he denie, the fact, that which he said before hindereth him not. The nature of English men is to neglect death, to abide no torment: And therefore he will confesse rather to haue done any thing, yea, to haue killed his own father, than to suffer torment, for death our natiō doth not so much estéem as a mean tormēt. In no place shal you sée malefactors go more constantly, more assu­redly, & with lesse lamentation to their death than in England. Againe, the people not accustomed to sée such cruell torments, will pitie the person tormented and [Page 86] abhorre the Prince and the Iudges, who should bring in such crueltie amongst them, and the xij. men the ra­ther absolue him. There is an olde lawe of England, that if any gaoler shall put any prisoner being in his custodie to any torment, to the intent to make him an approuer, that is to saie an accuser or Index of his com­plices, the gaoler shall dye therefore as a felon. And to say the trueth, to what purpose is it to vse torment? For whether the malefactor confesse or no, and whatso­euer he saith, if the enquest of xij. do find him guiltie, he dyeth therefore without delaye. And the malefactour, séeing there is no remedie, and that they be his coun­trie men, and such as he hath himselfe agreed vnto it, do finde them worthie death, yéeldes for the most part vnto it, and doeth not repine, but doth accōmodate him selfe to aske mercie of God. The nature of our nation is frée, stout, haulte, prodigall of life and bloud: but contumelie, beatings, seruitude and seruile torment & punishment it will not abide. So in this nature and fashion, our auncient Princes and legislators haue nourished them, as to make them stout hearted, coura­gious and souldiers, not villaines and slaues, and that is the scope almost of all our policie. The xij. as soone as they haue giuen their verdict are dismissed to goe whither they will, and haue no manner commoditie & profit of their labour and verdict, but onely do seruice to the Prince and commonwealth.

Of Treason, & the trial which is vsed for the higher nobilitie and Barons. CHAP. 25.

THe same order touching trial by enquest of xij men is taken in Treason, but the paine is more cruell. First to be hanged, taken downe aliue, his bowels ta­ken [Page 87] out and burned before his face, then to be behea­ded, and quartered, and those set vp in diuerse places. If anie Duke, Marques, or any other of the degrée of a Baron, or aboue, Lord of the Parliament be appea­ched of treason, or anie other capitall crime, he is iud­ged by his péeres and equals: that is, the yeomanrie doth not go vpon him, but an enquest of the Lordes of the Parliament, and they giue their voice, not one for all, but eche seuerally as they do in Parliament, be­ginning at the youngest lord.Or rather high stewa [...] of England [...] And for Iudge one lord sitteth, who is Constable of England for that day. The iudgement once giuen, he breaketh his staffe and ab­dicateth his office. In the rest there is no difference from that aboue written.

Of that which in other countries is called appellation, or prouocation, to amend the iudgement or sentence definitiue, which is thought vniustly giuen in causes criminall. CHAP. 1.

IF the enquest of xij men do séeme to the Iudges & the Iustices to haue gon too violently against the euidence giuen in mat­ters criminall, either it is that vpon slender eui­dence they haue pro­nounced him giltie, whō the Iudges & most part [Page 88] of the Iustices thinkes by the euidence not fullie proo­ued guiltie, or for some other cause, do thinke the per­son rather worthie to liue than to die. The enquest is neuerthelesse dimissed: but when the Iudges should pronounce the sentence of death vpon the person found guiltie, he will differ it, which is called to repriue the prisoner (that is to say to sende him againe to prison) and so declare the matter to the Prince, and obtaineth after a time for the prisoner his pardon: and as for pro­uocation or appeale which is vsed so much in other countries, it hath no place in England, after sentence giuen by the xii, whereby the person is founde guiltie or not guiltie: but without that repriuing the sen­tence is streight put in execution by the sherife. And if they either escape or die an other death, the sherife es­capeth not to paie a great fine and ransom at the Prin­ces mercie: if hauing pregnant euidence neuerthelesse the xii doe acquite the malefactor, which they will doe sometime, and especially if they perceiue either one of the Iustices, or of the Iudges, or some other man to pursue too much and too malitiously the death of the pri­soner, and doe suspect some subornation of the witnesse, or them which doe giue euidence, and sometime if they perceiue the Iudge would haue the prisoner escape, and in repeating the euidence doe giue them thereof some watchworde. But if they doe as I haue saide, pro­nounce not guiltie vpon the prisoner against whome manifest witnesse is brought in, the prisoner escapeth: but the xii not onely be rebuked by the Iudges, but al­so threatned of punishment, and many times com­maunded to appeare in the starrechamber, or before the priuie counsell for the matter. But this threatning chaunceth oftener than the execution thereof, and the xii answere with most gentle wordes, they did it accor­ding to their consciences, and pray the Iudges to be good vnto them, they did as they thought right, and as [Page 89] they accorded all, and so it passeth away for the most part. Yet I haue séene in my time (but not in the raigne of the Quéene nowe) that an enquest for pro­nouncing one not guiltie of treason contrarie to such euidence as was brought in, were not onely impriso­ned for a space, but an houge fine set vpon their heads, which they were faine to pay: An other enquest for ac­quiting an other, beside paying a fine of money, put to open ignominie and shame. But those doinges were euen then of many accounted verie violent, tyranni­call, and contrarie to the libertie and custome of the realme of England. Wherefore it commeth verie sel­dome in vse, yet so much at a time the enquest may be corrupted, that the Prince may haue cause with iu­stice to punish them: For they are men, and subiect to corruption and parcialitie, as others be.

VVhat remedie is, if the sentence be thought vniustly giuen. CHAP. 2.

IN causes ciuil there is another order: for if after the matter be pleaded to the issue, and the xij men there­upon impaneled, the euidence brought and pleaded before them on both the parties, the xij séeme to be parciall, and to haue giuen sentence contrarie to the euidence shewed vnto them: the partie gréeued may bring against them, and the partie for whome the sen­tence is giuen, a writ of attaint: and where as before vpon the first quest commonly they all be yeomen, now vppon this attaint must go xxiiij gentlemen dwelling within the shire, and xij at the least of the hundreth where the lande lyeth. The matter is pleaded againe before the same Iudges. The partie defendant is not onely nowe he, who claimeth the lande, but also all [Page 90] and euery of the yeomen, who by their verdict did giue it him. There must in the attaint no more euidence be brought in,No more eui­dence on the behalfe of the plaintife, but of the defen­dant there may. but onely that which was brought in, and alledged before the first enquest. And if this se­conde enquest of xxiiij gentlemen do adiudge as the first did, the plaintife shall not onely lose the land, but also paie a fine to the Prince and damages to the par­tie. If this seconde enquest do finde that the first en­quest hath gone parcially, and against the euidence brought in before them, the first enquest is called at­tainted, and accounted as periured and infamed. The Prince had before the waste of all their lands and pos­sessions with other punishments,The statute of 23. Henrie 8. doth not abo­lish com­mon lawe, but giueth a more profitable for the plaintife. which at this present by a lawe made by parliament in the time of king Henrie the eight is abolished, and nowe by that law or act of parliament, beside other punishment, eche of the quest attainted payeth vnto the Prince and partie v. li. if it be vnder fourtie poundes: and if aboue, then xx. li. Attaints be verie seldome put in vse, partly because the gentlemen will not méete to slaunder and deface the honest yeomen their neighbours: so that of a long time, they had rather paie a mean fine than to appeare and make the enquest. And in the meane time they will intreat so much as in them lyeth the parties to come to some composition and agréement among them selues, as lightly they do, except either the corruption of the enquest be too euident, or the one partie is too ob­stinate and headstrong. And if the gentlemen do ap­peare, gladlyer they will confirme the first sentence, for the causes which I haue saide, than go against it. But if the corruption be too much euident, they will not sticke to attaint the first enquest: yet after the gentle­men haue attainted the yeomen, if before the sentence be giuen by the Iudge (which ordinarily for a time is differred) the parties be agréed, or one of them be dead, the attaint ceaseth.

[Page 91]If at anie time before the sentence be giuen or put in execution, there be found some such errour in the writ, in the proces, or forme (as our lawyers be verie precise and curious of their formes) that it may be re­uocable, it is brought afresh to the disputation by a writ of errour, and all that is doone reuersed. But that is common to all other countries, where the ciuill law is vsed, which they call de nullitate processus, and serueth both in Englande and in other places aswell in causes criminall, as ciuill. Other kinde of appellation to re­uoke processes, and to make them of short, long, of long, infinite, which is vsed by the ciuill lawe, we haue not in our common lawe of Englande. By supplicati­on to the Prince and complaint to the Chauncellor vp­on supposall of losse or lacke of euidence, or too much fa­uour in the countrey, and power of the aduersarie, there is in our countrey as well as theirs both stop­ping and prolongation of Iustice. For what will not busie heades and louers of trouble neuer being satisfied inuent in any countrey to haue their desire, which is to vex their neighbours, and to liue alwaies in disqui­et? Men euen permitted of God like flies, and lise, and other vermine to disquiet them, who would imploie themselues vpon better businesse and more necessarie for the common wealth: these men are hated, and feared of their neighbours, loued and aided of them which gaine by proces, and waxe fatte by the expence & trouble of other. But as these men ordinarily spende their owne thrift, and make others against their wils to spende theirs: so sometime being throughly knowen, they do not onely liue by the losse like euill husbandes, but beside rebuke & shame, by the equitie of the Prince and courtes soueraigne, they come to be extraordina­rily punished, both corporally, & by their purse, which thing in my minde is as royall and princely an act, and so beneficiall to the commonwealth, as in so small a [Page 92] matter a King or a Quéene can doe, for the repose and good education of their subiectes.

Of that which in England is called ap­peale, in other places accusation. CHAP. 3.

IF any man hath killed my father, my sonne, my wife, my brother, or next kinsman, I haue choice to cause him to be endicted, by giuing information to the enquest of enquirie, (although he chaunce to escape the Constable or Iustices handes, and therefore not to be apprehended) and thereupon to procure him to be out­lawed, or else within a yéere and a day I may enter my appeale, that is mine accusation against him. If I begun first to pursue him by information or denuncia­tion to enditement, I am nowe no partie but the Prince, who for his duetie to God and his common wealth and subiects, must sée iustice executed against all malefactors & offenders against the peace, which is called Gods and his, & doeth in such maner as I haue saide before. If I leaue that and will appeale, which is profer my accusation against him who hath doone to me this iniurie, the defendant hath this aduauntage to put himselfe to the Iurie, which is to that which be­fore is saide to haue that issue and triall by God and his countrie,In appeale the battle is tryed by the parties onely, and in writs of right by champions. whereof the fashion I haue at large declared: or to demaund the triall by battle, wherein both the parties must eyther themselues in person, or else finde other for them, who be called in our Law Champions or Campions, some doeth interprete them [...] be­cause they be men chosen, fat, lustie, fit to the feate, or as the Frenche doe terme them adroicts aux armes, which shall fight it out by [...], or as now they doe call it duellum, or the campe, which shall haue all things equall: but according as Mars giueth the victo­rie, [Page 93] so the Lawe is iudged the one as peractus reus, the other is calumniator to suffer the paine of death. So that by the great assise there is no appellation but death or life to the defendant, but this is more daun­gerous and equall, for the one or the other must die. So it is not in the grande assise, for the reus or defen­daunt is onely in daunger of death. Short it is from day to sunne set, the quarell is ended, or sooner who hath the better fortune. This seemeth very militarie (as in maner all our policie of Englande) and to haue as small to doe with Lawyers as with Phisitions, quicklie to dispatche, and for the rest to returne, eche man to his buisinesse, to serue the common wealth in his vocation. The Popes of Rome, and men of the Church who of long time haue had dominion in our consciences, and would bring things to a more mode­ration, haue much detected this kinde of triall and iudgement, as reason is euerie man misliketh that which is not like to his education, and colde reasoning by Theologie and Philosophie: they I say much mis­like many things doone necessarily in whot policie. At the least a common wealth militarie must aduen­ture many things to kéepe it in quiet, which cannot séeme to precisely good to them which dispute thereof in the shadowe and in their studies: Howsoeuer it be, this kinde of triall of long time hath not béene vsed. So that at this time we may rather séeke the experience of it out of our histories of time passed, than of any viewe or sight thereof, of them which are nowe aliue. Ne­verthelesse the Lawe remaineth still, and is not aboli­shed, and if it shall chaunce the murtherer or mansleer (the one we call him that lyeth in waite, and as they terme it in Frenche de guet appendaunt killeth the man, the other who by casuall falling out and so­daine debate and choller doeth the same which way so­euer it be doone) if he that hath slaine the man, hath [Page 94] his pardon of the prince, as occasion or the fauour of the Prince may so present,The battle or Iurie is at the election of the defendant y^• he may haue it, yet the partie grieued hath these two remedies, I say to require iu­stice by grand assise, or battle vpon his appeale & pri­uate reuenge, which is not denyed him. And if the de­fendant either by great assise or by battle be conuinced vpon that appeale, he shall die, notwithstanding the Princes pardon. So much fauourable our Princes be, and the lawe of our Realme to iustice and to the punishment of blood violently shed.

Of the Court of Starre Chamber. CHAP. 4.

THere is yet in Englande an other court, of the which that I can vnderstand there is not the like in any other Countrie. In the Terme time (the Terme time as I haue heretofore shewed, I call the time and those daies when the Lawe is exercised in Westmin­ster hall, which as I haue said is but at certaine times and termes) every wéeke once at the least, which is commonly on Fridaies, and Wednesdaies, and the next day after that the terme doeth ende, the Lorde Chauncellor, and the Lordes and other of the priuie Counsell, so many as will, and other Lordes and Ba­rons which be not of the priuie Counsell, and be in the towne, and the Iudges of England, specially the two chiefe Iudges, from ix. of the clocke till it be xj. doe sit in a place which is called the starre chamber, either be­cause it is full of windowes, or because at the first all the roofe thereof was decked with images of starres gilted. There is plaints heard of riots. Riot is cal­led in our English terme or speache, where any num­ber is assembled with force to doe any thing: and it had the beginning, because that our being much accu­stomed [Page 95] either in foreine wars, in Fraunce, Scotland, or Ireland, or being ouermuch exercised with ci­uill warres within the Realme (which is the fault that falleth ordinarily amongest bellicous nations) whereby men of warre, Captaines and souldiers be­come plentifull▪ which when they haue no externe ser­uice wherewith to occupie their buisie heads & handes accustomed to fight and quarell, must néedes séeke qua­rels and contentions amongest themselues, and be­come so readie to oppresse right among their neigh­bours, as they were woont before with praise of man­hoode, to be in resisting iniurie offered by their ene­mies. So that our nation vsed hereunto, & vpon that more insolent at home, and not easie to be gouerned by Lawe and politike order, men of power beginning ma­ny fraies, and the stronger by factions and parties of­fering too much iuiurie to the weaker, were occasions of making good Lawes. First of reteiners, that no man should haue aboue a number in his Liuerie or re­tinue: then of the enquirie of routs and riots at euerie Sessions, and of the lawe whereby it is prouided that if any by force or by riot enter vpon any possessions, the Iustices of the peace shal assemble themselues & re­mooue the force, & within certain time enquire thereof. And further, because such things are not commonlie done by meane men, but by such as be of power & force, & be not to be dealt withal of euerie man, nor of meane Gentlemen: if the riot be found & certified to the Kings Counsell, or if otherwise it be complained of, the partie is sent for,Sent for by Sub poena. and he must appeare in this starre chamber, where séeing (except the presence of the Prince onely) as it were the maiestie of the whole Realme before him, being neuer so stoute, he will be abashed: and being called to aunswere (as he must come of what degrée soeuer he be) he shall be so charged with such grauitie, with such reason & remonstrance, [Page 96] and of those chiefe personages of Englande, one after an other handeling him on that sort, that what cou­rage soever he hath, his heart will fall to the grounde, and so much the more, when if he make not his aun­swere the better, as seldome he can in so open violence, he shalbe commaunded to the Fléete, where he shall be kept in prison in such sort as these Iudges shall ap­point him, lie there till he be wearie aswell of the re­straint of his libertie, as of the great expences, which he must there sustaine, and for a time be forgotten, whiles after long suite of his friendes, he will be glad to be ordered by reason. Sometime as his deserts be, he payeth a great fine to the Prince, besides great costs and dammages to the partie, and yet the mat­ter wherefore he attempteth this riot and violence is remitted to the common lawe. For that is the effect of this Court to bridle such stoute noble men, or Gen­tlemen which would offer wrong by force to any man­ner men, and cannot be content to demaund or defend the right by order of lawe. This court began long before, but tooke great augmentation and authoritie at that time that Cardinall Wolsey Archebishop of Yorke was Chauncellor of Englande, who of some was thought to haue first deuised y^• Court, because that he after some intermission by negligence of time, aug­mented the authoritie of it, which was at that time maruellous necessary to doe, to represse the insolencie of the noble men and gentlemen of the North partes of Englande, who being farre from the King and the seate of iustice made almost as it were an ordinarie warre among themselues, and made their force their Lawe, banding themselues with their tenaunts and seruauts to doe or reuenge iniurie one against an o­ther as they listed. This thing séemed not supportable to the noble prince King Henrie the eight: and sending for them one after an other to his Court to aunswere [Page 97] before the persons before named, after they had had remonstrance shewed them of their euill demeanor, and béene well disciplined as well by words as by flée­ting a while, and thereby their purse and courage somwhat asswaged, they began to range themselues in order, and to vnderstand that they had a Prince who would rule his subiects by his lawes and obedience. Sith that time this court hath béene in more estimati­on, and is continued to this day in manner as I haue saide before.

Of the Courts of Wards and Liueries. CHAP. 5.

HE whom we call a ward in Englande, is called in Latine pupillus, and in Gréeke [...]. The gardian is called in Latine tutor, in Gréeke [...]. A warde or infant is taken for a childe in base age, whose father is dead. The Romanes made two distinctions pupillum & minorem, the one to xiiii, yere old, the other was accoun­ted from thence to xxv. And as pupillus had tutorem, so minor had curatorem til he came to the age of xxv. These tutors or curators were accountable for the reuenues of the pupils minors lands, & great prouision and many lawes and orders is made for them in the bookes of the ciuil Lawe, for rendering iust & true accounts. So that to be a gardian or tutor was accounted among them to be a charge or trouble, a thing subiect to much en­cumbraunce and small profite, so that diuerse meanes were sought for, to excuse men from it. With vs this is cleane contrarie, for it is reckoned a profite to haue a warde. For the Lorde of whom the warde doeth hold the land, so soone as by the death of the father the childe falleth warde vnto him, he seaseth vpon the body of the ward and his landes, of which (so that he doeth nourish the ward,) he taketh the profite without ac­counts, [Page 98] and beside that offering to his ward couena­ble mariage without dispergement before the age of xxl. yeres if it be a man, or xiiii. if it be a woman. If the ward refuse to take that mariage, he or she must pay the value of the mariage, which is commonly ra­ted according to the profite of his landes. All this while I speake of that which is called in French garde noble, Gardian in cheualry, and gardian in Socage. that is of such as holde lands of other, by knight seruice, for that is an other kinde of seruice which we call in Frenche gard returier, we call it gard in socage, that is of such as doe not holde by knight seruice, but by tenure of the plough. This wardship falleth to him who is next of the kinne, and cannot inherite the land of the warde as the vncle by the mothers side, if the land doe discend by the father and of the fathers side, if the lande discend by the mother. This gardian is ac­countable for the reuenues and profites of the land, as the tutor by the ciuill Lawe to the warde or pupill so soone as he is of full age.

The man is not out of wardshippe by our lawe till xxj. yere olde, from thence he is reckoned of full age, as­well as in the Romane lawes at xxv. The woman at xiiij. is out of warde, for shée may haue an husband a­ble to doe knightes seruice say our bookes. And be­cause our wiues be in the power (as I shall tell you hereafter) of their husbands, it is no reason, she should be in two diuerse gards.

Many men doe estéeme this wardship by knightes seruice very vnreasonable and vniust, and contrarie to nature, that a Fréeman and Gentleman should be bought and solde like an horse or an oxe, and so change gardians as masters and lordes: at whose gouerne­ment not onely his bodie but his landes and his houses should be, to be wasted and spent without accounts, and then to marie at the will of him, who is his natu­rall Lorde, or his will who hath bought him, to such as [Page 99] he like not peraduenture, or else to pay so great a ran­som. This is the occasion they say, why many gen­tlemen be so euil brought vp touching vertue and lear­ning, and but onely in deintinesse and pleasure: and why they be maried very young and before they bee wife, and many times do not greatly loue their wiues. For when the father is dead, who hath the natural care of his childe, not the mother, nor the vnckle, nor the next of kinne, who by all reason would haue most na­turall care to the bringing vp of the infant and minor, but the Lorde of whom he holdeth his land in knights seruice, be it the King or Quéene, Duke, Marquesse, or any other, hath the gouernement of his bodie and ma­riage, or else who that bought him at the first, second or thirde hande. The Prince as hauing so many, must néedes giue or sell his wardes away to other, and so he doeth. Other doe but séeke which way they may make most aduauntage of him, as of an oxe or other beast. These all (say they,) haue no naturall care of the infant, but of their owne gaine, and especially the buyer will not suffer his warde to take any great paines, either in studie, or any other hardenesse, least he should be sicke and die, before he hath maried his daughter, sister or cousin, for whose sake he bought him: and then all his money which he paide for him should be lost. So he, who had a father, which kept a good house,But the Lorde shalbe puni­shed for the wast, by losse of the ward: or treble dam­mages, if that suffice not. and had all things in order to maintaine it, shall come to his owne, after he is out of wardshippe, woods decayed, houses fallen downe, stocke wasted and gone, land let foorth and plowed to the baren, and to make amends, shall pay yet one yeres rent for reliefe and sue ouster le maind, beside other charges, so that not of manie yeres and peraduenture neuer he shall be able to recouer, and come to the estate where his father left it. This as it is thought was first graunted vpon a great extremitie to King Henrie the 3. for a time [Page 100] vpon the warre which he had with his Barons, and af­terward, increased, and multiplied to more and more persons and grieuances, and will be the decay of the nobilitie and libertie of England, Other againe say, the ward hath no wrong. For eyther his father pur­chased the lande, or it did discend vnto him from his auncesters with this charge. And because he holdeth by knightes seruice, which is in armes and defence, séeing that by age he cannot doe that whereto hee is bound by his lande, it is reason he aunswere that pro­fite to the Lorde, whereby he may haue as able a man to doe the seruice. The first knights in Rome, those that were chosen equites Romani, had equum publicum on which they serued, and that was at the charge of widowes and wards, as appeareth by Titus Liuius, because that those persons could not doe bodilie ser­uice to the common wealth. Wherfore this is no newe thing, but thought reasonable in that most wise com­mon wealth, and to the prudent King Seruius Tullius. As for the education of our common wealth, it was at the first militaire, and almost in all things the scope and deseigne thereof is militaire. Yet was it thought most like, that noble men, good knights, and great captaines would bring up their wards in their owne feates and vertues, and then mary them into like rase and stocke where they may finde and make friendes, who can better looke to the education or better skill of of the bringing vp of a gentleman, than he who for his higher nobilitie hath such a one to holde of him by knights seruice, or would doe it better than he that loo­keth or may claime such seruice of his ward, when age and yeres will make him able to doe it. That which is saide that this maner of wardship began in the time of King Henrie the 3. cannot séeme true. For in Normandie and other places of Fraunce the same order is.

[Page 101]And that statute made in King Henrie the thirds time touching wards, to him that will wey it wel, may séeme rather a qualification of that matter, and an ar­gument that the fashion of wardship was long before: but of this matter an other time shall be more conue­nient to dispute. This may suffice to declare the ma­ner of it.

Of VViues and mariages. CHAP. 6.

THe wiues in Englande be as I saide in potestate maritorum, not that the husbande hath vitae ac necis potestatem, as the Romans had in the olde time of their children, for that is onely in the power of the Prince, and his lawes, as I haue saide before, but that what­soever they haue before mariage, as soone as mariage is solemnished is their husbandes, I meane of money, plate, iuelles, cattaile, and generally all moueables. For as for lande and heritage followeth the succession, and is ordered by the lawe as I shall say héereafter: and what soever they gette after mariage, they get to their husbands. They neither can giue nor sell anie thing either of their husbandes, or their owne. Theirs no moueable thing is by the law of England constanti matrimonio, but as peculium serui aut filijfamilias: and yet in moueables at the death of her husbande she can claime nothing, but according as hee shall will by his Testament, no more than his sonne can: all the rest is in the disposition of the executors if he die testate. Yet in London and other great cities they haue that lawe and custome, that when a man dieth, his goods be di­uided into thrée partes. One thirde is imployed vppon the buriall and the bequestes which the testator ma­keth in his testament. An other thirde part the wife [Page 102] hath as her right, and the thirde third part is the dewe and right of his children, equally to be diuided among them. So that a man there can make testament but of one thirde of his goods: if he die interstate, the funerals deducted the goods be equally diuided betwéene the wife and the children.

By the common lawe of Englande if a man die in­testate, the Ordinarie (which is the Bishoppe by com­mon intendment) sometime the Archdeacon, Dean, or Prebendarie by preuiledge and prescription, doeth commit the administration of the goods to the widowe or the child, or next kinsman of the dead, appointing out portions to such as naturally it belongeth vnto, and the Ordinarie by cōmon vnderstanding hath such gra­uitie and discretion as shalbe méete for so absolute an authoritie for the most part, following such diuision as is vsed in London, either by thirdes or halfes. Our forefathers newely conuerted to the Christian faith had such confidence in their pastors & instructours, and tooke them to be men of such conscience that they com­mitted that matter to their discretion, and belike at the first they were such as would séeke no priuate pro­fit to themselues thereby, that being once so ordeined hath still so continued. The abuse which hath followed was in part redressed by certaine actes of parliament made in the time of king Henrie the eight, touching the probate of testamentes committing of administra­tion & mortuaries. But to turne to the matter which we nowe haue in hande, the wife is so much in the power of her husband, that not onely her goods by mar­riage are streight made her husbandes, and she looseth all her administration which she had of them: but also where all English men haue name and surname, as the Romans had, Marcus Tullius, Caius Pompeius, Caius Iulius, whereof the name is giuen to vs at the font, the surname is the name of the gentilitie and [Page 103] stocke which the sonne doth take of the father alwaies, as the olde Romans did, our daughters so soone as they be maried loose the surname of their father, and of the family and stocke whereof they doe come, and take the surname of their husbands, as transplanted from their family into an other. So that if my wife was called before Philippe Wilford by her owne name and her fathers surname, as soone as she is maried to me she is no more called Philippe Wylford, but Philippe Smith, and so must she write and signe: and as she changeth husbandes, so she chaungeth surnames, called alwaies by the surname of her last husbande. Yet if a woman once marrie a Lorde or a Knight by which occasion she is called my Ladie with the surname of her husbande,She is no La­die by the law although so called of cour­tisie. if he die and she take a husbande of a meaner estate by whom she shall not be called Ladie (such is the honour we doe giue to women) she shall still be called Ladie with the surname of her first husbande and not of the seconde.

I thinke among the olde Romans those marriages which were made per coemptionem in manum and per aes and libram made the wife in manu & potestate viri, wher­of also we had in our olde lawe and ceremonies of ma­riage, a certaine memorie as a viewe and vestigium. For the woman at the Church dore was giuen of the father or some other man next of her kinne into the handes of the husbande, and he layde downe golde and siluer for her vpon the booke, as though he did buy her, the priest belike was in stéede of Lipripeus: our mari­ages be estéemed perfect by the law of England, when they be solemnished in the Church or Chappell, in the presence of the priest and other witnesses. And this on­ly maketh both the husbande and the wife capable of all the benefites which our lawe both giue vnto them and their lawefull children. In so much that if I ma­rie the widowe of one lately dead, which at the time [Page 104] of her husbandes death was with childe, if the childe be borne after mariage solemnished with me, this childe shalbe my heire, and is accounted my lawefull sonne, not his whose childe it is in deede, so precisely wee doe take the letter where it is saide, pater est quem nuptiae demonstrant. Those waies and meanes which Iustini­an doth declare to make bastardes to be lawefull chil­dren, muliers or rather melieurs (for such a terme our lawe vseth for them which be lawefull children) be of no effect in England, neither the Pope nor Emperour, nor the Prince himselfe neuer could there legittimate a bastarde to enioy any benefitte of our lawe, the Par­liament hath onely that power.

Although the wife be (as I haue written before) in manu & potestate mariti, by our lawe yet they be not kept so streit as in mew and with, a garde as they be in Italy and Spaine, but haue almost as much liber­tie as in Fraunce, and they haue for the most part all the charge of the house and houshoulde (as it may ap­peare by Aristotle and Plato the wiues of the Gréekes had in their time) which is in déede the naturall occu­pation, exercise, office and part of a wife. The husband to meddle with the defence either by lawe or force, and with all forren matters which is the naturall part and office of the man, as I haue written before. And al­though our lawe may séeme somewhat rigorous to­wards the wiues, yet for the most part they can handle their husbandes so well and so doulcely and specially when their husbands be sicke: that where the lawe gi­ueth them nothing, their husbandes at their death of their good will giue them all. And fewe there be that be not made at the death of their husbandes either sole or chiefe executrixes of his last wil and testament, and haue for the most part the gouernement of the children and their portions: except it be in London, where a peculiar order is taken by the citie much after the fa­shion [Page 105] of the ciuill lawe.

All this while I haue spoken onely of moueable goods:It is auoida­ble after the husbandes death, except it be for xxi. yeares or three liues ac­cording to the statute, or ex­cept they leuie a fine. if the wife be an enheretrix & bring lande with her to the mariage, that lande descendeth to her eldest sonne, or is diuided among her daughters. Also the manner is, that the lande which the wife bringeth to the mariage or purchaseth afterwardes, the husbande can not sell nor alienate the same, no not with here con­sent, nor she her selfe during the mariage, except that she be sole examined by a Iudge at the common lawe: and if he haue no childe by her and she die, the lande go­eth to her next heires at the common lawe: but if in the mariage he haue a childe by her which is heard once to crie, whether the childe liue or die, the husband shall haue the vsufruite of her landes, that is the pro­fitte of them during his life, and that is called the cour­tisie of Englande.

Likewise if the husbande haue any lande either by inheritance descended or purchased and bought, if hee die before the wife, she shall haue the vsufruite of one thirde part of his landes.She shalbe en­dowed at y^e dis­cretion of the sherife, except in few cases. That is, she shall holde the one thirde part of his landes during her life as her dowrie, whether he hath child by her or no. If he hath any children, the rest descendeth streight to the eldest: if he hath none, to the next heire at the common lawe: and if she mislike the diuision she, shal aske to be indow­ed of the fairest of his landes to the thirde part.

This which I haue written touching mariage and the right in moueables and vnmoueables which com­meth thereby, is to be vnderstoode by the common law when no priuate contract is more particularly made. If there be any priuate pacts, couenants, and contracts made before the mariage betwixt the husbande and the wife, by thēselues, by their parents, or their friends, those haue force and be kept according to the firmitie and strength in which they are made. And this is y­nough [Page 106] of wiues and mariage.

Of Children. CHAP. 7.

OUr children be not in potestate parentum, as the chil­dren of the Romans were: but as soone as they be puberes, which we call the age of discretion, before that time nature doth tell they be but as it were partes pa­rentum. That which is theirs they may giue or sell, & purchase to themselues either landes and other mouea­bles the father hauing nothing to doe therewith. And therefore emancipatio is cleane superfluous, we knowe not what it is. Likewise sui heredes complaints, de in-officioso testamento or praeteritorum liberorum non emanci­patorum haue no effect nor vse in our lawe, nor wee haue no manner to make lawefull children but by mariage, and therefore we knowe not what is adoptio nor arrogatio. The testator disposeth in his last will his moueable goods fréely as he thinketh méete and conue­nient without controlement of wife or children. And our testamentes for goods moueable be not subiect to the ceremonies of the ciuill lawe, but made with all libertie and fréedome, and iure militari. Of landes as ye haue vnderstoode before, there is difference: for when the owner dieth, his lande discendeth onely to his el­dest sonne, all the rest both sonnes & daughters haue nothing by the common lawe, but must serue their el­dest brother if they will, or make what other shift they can to liue: except that the father in life time doe make some conueiance and estates of part of his land to their vse, or els by deuise, which word amongest our lawiers doth betoken a testament written, sealed and deliue­red in the life time of the testator before witnesse: for without those ceremonies a bequest of landes is not [Page 107] auailable. But by the common lawe if hee that dieth hath no sonnes but daughters, the lande is equally di­uided among them, which portion is made by agrée­ment or by lotte. Although as I haue saide ordinarily and by the common lawe, the eldest sonne inheriteth all the lands, yet in some countries all the sonnes haue equall portion, and that is called ganelkinde, and is in many places in Kent. In some places the youngest is sole heire: and in some places after an other fashion. But these being but particular customes of certaine places and out of the rule of the common law, doe little appertain to the disputation of the policie of the whole Realme, and may be infinite. The common wealth is iudged by that which is most ordinarily and common­ly doone through the whole Realme.

Of Bondage and Bondmen. CHAP. 8.

AFter that we haue spoken of all the sortes of frée men according to the diuersitie of their estates and persons, it resteth to say somewhat of bondmen which were called serui, which kinde of people & the dispositi­on of them and about them doth occupie the most part of Iustinians Digestes, and Code. The Romans had two kindes of bondmen, the one which were called serui, and they were either which were bought for mo­ney, taken in warre, left by succession, or purchased by other kinde and lawefull acquisition, or else borne of their bonde women and called vernae: all those kinde of bondmen be called in our lawe villens in grosse, as ye would say immediatly bonde to the person and his heires. An other they had as appeareth in Iustinians time, which they called adscripticij glebae or agri censiti. These were not bond to the person, but to the mannor [Page 108] or place, and did followe him who had the manors, & in our lawe are called villaines regardants, for be­cause they be as members, or belonging to the manor or place. Neither of the one sort nor of the other haue we any number in England. And of the first I neuer knewe any in the realme in my time: of the seconde so fewe there be, that it is not almost worth the spea­king. But our lawe doth acknowledge them in both those sortes. Manumission of all kinde of villaines or bondmen in Englande is vsed and done after diuerse sortes, and by other and more light and easie meanes than is prescribed in the ciuil lawe, and being once manumitted, he is not libertus manumittentis, but sim­ply liber: howbeit sith our Realme hath receiued the Christian religion which maketh vs all in Christ bre­thren, and in respect of God and Christ conseruos, men began to haue conscience to hold in captiuitie and such extreme bondage him whome they must acknowledge to be his brother, and as we vse to terme him Christi­an, that is who looketh in Christ and by Christ to haue equall portion with them in the Gospel and saluation. Vpon this scruple, in continuance of time, and by long succession, the holie fathers, Munkes and Friers in their confession, and specially in their extreme & dead­ly sicknesses, burdened the consciences of them whom they had vnder their hands: so that temporall men by little and litle by reason of that terror in their consci­ence, were glad to manumit all their villaines: but the said holie fathers, with the Abbots and Priors, did not in like sort by theirs, for they had also conscience to impouerish and dispoyle the Churches so much as to manumit such as were bond to their Churches, or to the mannors which the Church had gotten, and so kept theirs still. The same did the Bishoppes also till at the last and now of late some Bishoppes to make a péece of money manumitted theirs partly for argent, partly for [Page 109] slaunders, that they séemed more cruell than the tempo­raltie: after the monasteries comming into temporall mens handes haue béene occasion that now they be al­most all manumitted. The most part of bondmen when they were, yet were not vsed with vs so cruelly nor in that sort as the bondmen at the Romane ciuill law, as appeareth by their Comedies, nor as in Gréece as appeareth by theirs: but they were suffered to en­joy coppieholde lande to gaine and get as other serues that nowe and then their Lordes might fléese them and take a péece of money of them, as in France the Lords doe taile them whom they call their subiectes at their pleasure, and cause them to pay such summes of money as they list to put vpon them. I thinke both in France and England the chaunge of religion to a more gentle, humane and more equall sort (as the christian religi­on as in respectes of the Gentiles) caused this olde kinde of seruile seruitude and slauerie to be brought in­to that moderation, for necessitie first to villaines re­gardants, and after to seruitude of landes and tenures, and by litle and litle finding out more ciuill and gen­tle meanes and more equall to haue that doone which in time of heathenesse seruitude or bondage did, they al­most extinguished the whole. For although all persons christians be brethren by baptisme in Iesu Christ, and therefore may appeare equally frée: yet some were and still might be christianed being bond and serue, and whom as the baptisme did find so it did leaue them, for it chaungeth not ciuill lawes nor compactes amongest men which be not contrarie to Gods lawes, but rather maintaineth them by obedience. Which séeing men of good conscience hauing that scruple whereof I wrote before, haue by litle and litle found meanes to haue and obtaine the profit of seruitude and bondage which gen­tilitie did vse and is vsed to this day amongest Christi­ans on the one part, and Turkes and Gentils on the [Page 110] other part, whē warre is betwixt them vpon those whō they take in battaile. Turkes and Gentiles I call them, which vsing not our lawe the one beléeueth in one God, the other in many gods, of whom they make Images. For the lawe of Iewes is well ynough knowen, & at this day so farre as I can learne, amongst all people Iewes be holden as it were in a common seruitude, and haue no rule nor dominion as their own prophesies doe tell that they should not haue after that Christ was promised to them, was of them refused for when they would not acknowledge him obstinatly for, taking their helpe in soule for the life to come and ho­nour in this worlde for the time present not taking the good tidinges, newes, and euangill brought to them for their disobedience by the great grace of God, and by the promise of the Prophets [...]ructified in vs which be Gentils and brought forth this humanitie, gentlenes, honour and godly knowledge which is seene at this present. But to returne to the purpose.

This perswasiō I say of Christians not to make nor kéepe his brother in Christ, seruile, bond and vnder­ling for euer vnto him, as a beast rather than as a man, and the humanitie which the Christian reli­gion doth teache, hath engendered through Realmes not néere to Turkes and Barbarians, a doubt, a con­science and scruple to haue seruants and bondmen: yet necessitie on both sides, of the one to haue helpe, on the other to haue seruice, hath kept a figure or fashion thereof. So that some would not haue bondmen, but ascripticij glebae, and villaines regardant to the ground, to the intent their seruice might be furnished, and that the countrie being euill, vnwholsome, and other wise barren, should not be desolate. Others afterwardes found out the wayes and meanes, that not the men but the land should be bound and bring with it such bondage and seruice to him that occupieth it, as to ca­rie [Page 111] the Lordes dung vnto the fieldes, to plough his ground at certaine daies, sowe, reape, come to his Court, sweare faith vnto him, and in the ende to holde the lande but by copie of the Lords court rolle, and at the will of the Lord. This tenure is called also in our lawe, villaine, bonde, or seruile tenure: yet to consider more déepely all lande, euen that which is called most frée lande, hath a bondage annexed vnto it, not as na­turally the lower ground, must suffer and receiue the water and filth which falleth from the higher ground, nor such as Iustinian speaketh of de seruitudinibus praedi­orum rusticorum & vrbanorum, but the lande doeth bring a certaine kind of seruitude to the prossessor. For no man holdeth land simply frée in Englande, but he or she that holdeth the Crowne of Englande: all others holde their land in fée, that is vpon a faith or trust, and some seruice to be done to an other Lorde of a mannor as his superior, and he againe of an higher Lorde, till it come to the Prince & him that holdeth the Crowne. So that if a man die, and it be found that he hath land which he holdeth, but of whom no man can tell, this is vnderstoode to be holden of the Crowne, and in capi­tie, which is much like to knights seruice, and draw­eth vnto it thrée seruices, homage, ward and mariage: That is, he shall sweare to be his man, and to be true vnto him of whom he holdeth the lande. His sonne who holdeth the land after the death of his father, shall be maried where it pleaseth the Lorde. He that hol­deth the lande most freely of a temporall man (for franke almose and franke mariage hath an other cause and nature) holdeth by fealtie onely, which is, he shal sweare to be true to the Lorde, and doe such seruice as appertaineth for the land which he holdeth of the Lord. So that all frée lande in Englande is holden in fée or feodo, which is asmuch to say as in fide or fiducia: That is, in trust and confidence, that he shall be true to the [Page 112] Lorde of whom he holdeth it, pay such rents, doe such seruice, and obserue such conditions as was annexed to the first donation. Thus all sauing the Prince be not viri domini, but rather fiduciary domini, & possessores: This is a more likely interpretation than that which Litleton doeth put in his booke,Litleton did not interpret the word feodu simply, but ra­ther define or describe the nature therof. who saith that feodum idem est quod haereditas, which it doeth betoken in no language. This hapneth many times to them who be of great witte and learning, yet not séene in many tongues, or marketh not the deduction of wordes which time doth alter.Litleton seene in the tongues as Sir Tho­mas Smith was in Litle­ton. Fides in Latine the Gothes com­ming into Italie and corrupting the language, was turned first into fede, and at this day in Italie they will say in fide, en fede or ala fe. And some vncunning Law­ [...]ers that would make a newe barbarous latine worde to betoken lande giuen in fidem, or as the Italian saith in fede, or fe, made it in feudum or feodum. The nature of the worde appeareth more euident in those which we call to fef, feof or feoffees, the one be fiduciary posses­sores, or fidei commissarij, the other is, dare in fiduciam, or fidei commissum, or more latinely, fidei committere. The same Litleton was as much deceiued in withernam, & diuerse other olde wordes. This withernam he inter­preteth vetitum nauium, in what language I knowe not: whereas in trueth it is in plaine Dutche and in our olde Saxon language, wyther nempt, alterum ac­cipere, iterum rapere, a worde that betokeneth that which in barbarous Latine is called represalia, when one taking of me a distresse, which in Latine is called pignus, or any other thing, and carying it away out of the iurisdiction wherein I dwell, I take by order of him that hath iurisdiction, an other of him againe or of some other of that iurisdiction, and doe bring it into the iurisdiction wherein I dwell, that by equal wrong I may come to haue equall right. The manner of represalia, and that we call withernam, is not altoge­ther [Page 113] one: But the nature of them both is as I haue described, and the proper signification of the words doe not much differ. But to returne thither where we did digresse: ye see that where the persons be frée, and the bodies at full libertie and maximè ingenui ▪ yet by an­nexing a condition to the lande, there is meanes to bring the owners and possessors thereof into a certaine seruitude or rather libertinitie: That the tenaunts beside paying the rent accustomed, shal owe to the Lord a certaine faith, duetie, trust, obedience, and (as we terme it) certaine seruice as libertus, or cliens patro­no: which because it doeth not consist in the persons, for the respect in them doeth not make them bond, but in the lande and occupation thereof, it is more properly expressed in calling the one tenaunt, the other Lord of the fée, than either libertus or cliens can doe the one, or patronus the other: for these wordes touche rather the persons, and the office and duetie betwéene them, than the possessions. But in our case leauing the possessi­on and lande, all the obligation of seruitude and ser­uice is gone.

An other kinde of seruitude or bondage is vsed in Englande for the necessitie thereof, which is called apprenticehoode. But this is onely by couenaunt, and for a time, & during the time it is vera seruitus. For whatsoeuer the apprentice getteth of his owne labour, or of his masters occupation or stocke, he getteth to him whose apprentice he is, he must not lie foorth of his masters doores, he must not occupie any stocke of his owne, nor mary without his masters licence, and he must doe all seruile offices about the house, and be obedient to all his masters commaundementes, and shall suffer such correction as his master shall thinke méete, and is at his masters cloathing and nourishing, his master being bounde onely to this which I haue saide, and to teache him his occupation, and for that he [Page 114] serueth, some for vij. or viij. yeres, some ix. or x. yeres as the masters and the friends of the young man shall thinke méete or can agrée: altogether (as Polidore hath noted) quasi pro emptitio seruo: neuerthelesse that neither was the cause of the name apprentice, neither yet doeth the worde betoken that which Polydore suppo­seth, but it is a Frenche worde, and betokeneth a learner or scholer. Apprendre in French is to learne, and apprentise is as much to say in Frenche (of which tongue we borowed this worde and many more other) as discipulus in Latine: likewise he to whom he is bound, is not called his Lorde but his master, as ye would say his teacher. And the pactions agréed vpon, be put in writing, signed and sealed by the parties, and registred for more assurance: without being such an apprentice in London, and seruing out such a serui­tude in the same Citie for the number of yéeres agréed vpon, by order of the Citie amongest them, no man be­ing neuer so much borne in London, and of parentes londoners is admitted to be a Citizen or frée man of London: the like is vsed in other great Cities of Eng­lande. Besides apprentises, others be hired for wa­ges, and be called seruaunts or seruing men and wo­men throughout the whole Realme, which be not in such bondage as apprentises, but serue for the time for daily ministrie, as serui and ancillae did in the time of gentilitie, and be for other matters in libertie as full frée men and women.

But all seruaunts, labourers and others not mary­ed, must serue by the yere: and if he be in couenaunt, he may not depart out of his seruice without his masters licence, and he must give his master warning that he will depart one quarter of a yere before the terme of the yere expireth, or else he shalbe compelled to serue out an other yere. And if any young man vnmaried be without seruice, he shalbe compelled to get him a ma­ster [Page 115] whom he must serue for that yere, or else he shalbe punished with stockes and whipping as an idlè vaga­bond. And if any man maried or vnmaried, not hauing rent or liuing sufficient to maintaine himselfe, doe liue so idely, he is enquired of, and sometime sent to the gaole, sometime otherwise punished as a sturdie vaga­bond: so much our policie doth abborre idlenesse. This is one of the chiefe charges of the Iustices of peace in e­uerie Shire. It is taken for vngentlenesse and dis­honour, and a shewe of enmitie, if any gentleman doe take an other gentlemans seruaunt (although his ma­ster hath put him away) without some certificate from his master eyther by word or writing, that he hath dis­charged him of his seruice. That which is spoken of men seruaunts, the same is also spoken of women ser­uaunts. So that all youth that hath not sufficient re­uenues to maintaine it selfe, must néeds with vs serue, and that after an order as I haue written. Thus ne­cessitie & want of bondmen hath made men to vse frée­men as bondmen to all seruile seruices: but yet more li­berally and fréely, and with a more equalitie and mode­ration, than in time of gentilitie slaues and bondemen were woont to be vsed, as I haue saide before. This first and latter fashion of temporall seruitude, and v­pon paction is vsed in such countryes, as haue left off the old accustomed maner of seruaunts, slaues, bonde­men and bondwomen, which was in vse before they had receiued the Christian faith. Some after one [...]ort, and some either more or lesse rigorouslie, according as the nature of the people is enclined, or hath deuised a­mongest themselues for the necessitie of seruice.

Of the Court which is Spirituall or Ec­clesiasticall, and in the booke of Law, Court Christian, or Curia Christianitatis. CHAP. 9.

THe Archebishops and Bishops haue a certaine pe­culiar iurisdiction vnto them especially in foure maner of causes: Testamentes and legations, Tythes and mortuaries, mariage and adulterie or fornication, and also of such things as appertaine to orders a­mongest themselues and matters concerning religion. For as it doeth appeare, our auncestors hauing the common wealth before ordeined & set in frame, when they did agree to receiue the true and Christian religi­on, that which was established before, and concerned externe policie (which their Apostles, Doctors and Preachers did allowe) they helde and kept still with that which they brought in of newe. And those things in kéeping whereof they made conscience, they com­mitted to them to be ordered and gouerned as such things, as of which they had no skill, as to men in whom for the holinesse of their life and good conscience, they had a great and sure confidence. So those matters be ordered in their Courts, and after the fashion and maner of the lawe ciuil or rather common by citation, libel, contestationem litis, examination of witnesses pri­uilie, by exceptions, replications apart and in wri­ting, allegations, matters by sentences giuen in wri­ting, by appellations from one to an other as well a grauamine as a sententia definitiua, and so they haue o­ther names, as Proctor, Aduocates, Assessors, Ordina­ries, and Commissaries, &c. farre from the manner of our order in the common lawe of Englande, and from that fashion which I haue shewed you before. Where­fore [Page 117] if I say the testament is false and forged, I must sue in the spirituall lawe, so also if I demaunde a lega­cie: but if I sue the executor or administrator (which is he in our lawe, who is in the ciuill lawe baeres or bonorū mobilium possessor ab intestato) for a debt which the dead ought me, I must sue in the temporall court. These two courtes the temporall and the spirituall be so diuided, that who so euer sueth for any thing to Rome or in any spirituall court for that cause or acti­on which may be pleaded in the temporall court of the Realme,Which ought to be tride in the temporall court. by an olde lawe of Englande hee falleth into a praemunire, that is hee forsetteth all his goods to the Prince, and his body to remaine in prison during the Princes pleasure: and not that onely, but the Iudge, the scribe, the procurer and assessor which receiueth and doth maintaine that vsurped pleading doth incur the same daunger. Whether the word praemunire doeth betoken that the authoritie & iurisdiction of the realme is prouided for before and defended by that lawe, and therefore it hath that name praemunire or praemuniri, or because that by that lawe such an attemture hath had warning giuen before to him of the daunger into which he falleth by such attempt, and then praemunire is barbarously written for praemonere, praemoneri, (as some men haue helde opinion) I will not define, the effect is as I haue declared: and the lawe was first made in king Richarde the secondes time, and is the remedie which is vsed when the spirituall iurisdiction will goe about to encroch any thing vpon the temporall courts. Because this court or forme which is called curia chri­stianitatis, is yet taken as appeareth for an externe and forren court, and differreth from the policie and man­ner of gouernment of the Realme, and is an other court (as appeareth by the act and writ of praemunire) than curia regis aut reginae: Yet at this present this court as well as others hath her force, power, authoritie, [Page 118] rule and iurisdiction, from the royall maiestie and the crowne of England & from no other forren potentate or power vnder God (which being granted, as indéede it is true) it may nowe appeare by some reason that the first statute of praemuni [...]e whereof I haue spoken, hath nowe no place in Englande, séeing there is no plea­ding alibi quam in curia regis ac reginae.

I haue declared summarily as it were in a chart or mappe, or as Aristotle termeth it, [...] the forme and manner of the gouernement of Englande, and the policie thereof, and sette before your eies the princi­pall pointes wherein it doth differ from the policie or gouernment at this time vsed in Fraunce, Italie, Spaine, Germanie and all other countries, which doe followe the ciuill lawe of the Romanes compiled by Iustinian into his pandects and code: not in that sort as Plato made his common wealth, or Zenophon his kingdom of Persia, nor as Syr Thomas More his Vto­pia being feigned common wealths such as neuer was nor neuer shall be, vaine imaginations, phantasies of Philosophers to occupie the time and to exercise their wittes: but so as Englande standeth and is gouerned at this day the xxviij of March Anno 1565. in the vij yeare of the raigne and administration thereof by the most vertuous and noble Quéene Elizabeth, daughter to King Henrie the eight, and in the one & fiftéeth yéere of mine age, when I was ambassador for her maiestie in the court of Fraunce, the scepter whereof at that time the noble Prince and of great hope Charles Max­imilian did holde, hauing then raigned iiij yeares. So that whether I writ true or not, it is easie to be séene with eies (as a man would say) and felt with handes. Wherfore this being as a proiect or table of a common wealth truely laide before you, not fained by putting a case: let vs compare it with common wealthes, which be at this day in esse, or doe remaine discribed in true [Page 119] histories, especially in such pointes wherein the one dif­fereth from the other, to sée who hath taken the righter, truer, and more commodious way to gouerne the peo­ple aswell in warre as in peace. This will be no illibe­rall occupation for him that is a Philosopher and hath a delight in disputing, nor vnprofitable for him who hath to do & hath good will to serue the Prince and the com­mon wealth in giuing coun­sell for the better admi­nistration thereof.