The common-vvelth of England and the maner of gouernment thereof. Compiled by the honorable Sir Thomas Smith, Knight, Doctor of both lawes, and one of the principall secretaries vnto two most worthie princes, King Edward, and Queen Elizabeth: with new additions of the cheefe courts in England, the offices thereof, and their seuerall functions, by the sayd author: neuer before published. Seene and allowed.

The common-vvelth of England and the maner of gouernment thereof. Compiled by the honorable Sir Thomas Smith, Knight, Doctor of both lawes, and one of the principall secretaries vnto two most worthie princes, King Edward, and Queen Elizabeth: with new additions of the cheefe courts in England, the offices thereof, and their seuerall functions, by the sayd author: neuer before published. Seene and allowed.

Table of contents

Title page

To the Reader.

THE MANER OF GOVERNMENT OR POLICIE OF THE REALM OF ENGLAND.

Of the diuersities of common Wealthes or gouernment. Chapter 1.

What is iust or Law in euery Common wealth or gouernment. CHAP. 2.

Another diuision of Commonwealthes. CHAP. 3.

Example of changes in the maner of Gouernment. CHAP. 4.

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

That common vvealths or gouernments are not most commonly simple, but mixt. CHAP. 6.

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

Of the absolute king. CHAP. 8.

Of the name of king, and thadministration of England. CHAP. 9.

What is a Common wealth, and the partes thereof. CHAP. 10.

The first sort, or beginning of an house or Familie, called 〈 in non-Latin alphabet 〉. CHAP. 11.

The first and naturall beginning of a kingdome, in Greeke 〈 in non-Latin alphabet 〉. CHAP. 12.

The first and naturall beginning of the rule of a few of the best men, called in Greeke 〈 in non-Latin alphabet 〉. CHAP. 13.

The first originall, or beginning of the rule of the multitude called 〈 in non-Latin alphabet 〉 or 〈 in non-Latin alphabet 〉 CHAP. 14.

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

The diuision of the partes and persons of the Commonwealth. CHAP. 16.

Of the first part of Gentlemen of England, called Nobilitas maior. CHAP. 17.

Of the second sort of Gentlemen, which may be called Nobilitas minor, and first of Knights. CHAP. 18.

Of Esquiers. CHAP. 19.

Of Gentlemen. CHAP. 20.

Whether the maner of England in making Gentlemen so easilie, is to be allowed. CHAP. 21.

Of Citizens and Burgesses. CHAP. 22.

Of Yeomen. CHAP. 23.

Of the fourth sorte of men which doe not rule. CHAP. 21.

THE SECOND BOOKE.

The diuision and definition of the Lawes of this Realme in generall. CHAP. 1.

Of the Parlement, and the authoritie thereof. CHAP. 2.

The forme of holding the Parlement. CHAP. 3.

Of the Monarch, King or Queene of England. CHAP. 4.

The chiefe points wherein one Common wealth doeth differ from another. CHAP. 5.

Of three maners and formes of trialles or iudgements in England. CHAP. 6.

Triall or iudgement by Parlement. CHAP. 7.

Triall of iudgement by battle. CHAP. 8.

The triall by assise or twelue men, and first of the three partes which be necessarie in iudgement. CHAP. 9.

Of pleas or actions. CHAP. 10.

Of the chiefe Tribunals, Benches, or Courts of England. CHAP. 11.

Of the times of pleading called Termes & of the Chauncellor and Chauncerie. CHAP. 12.

Of Iudges in the common Lavve of England, and the manner of triall and pleading there. CHAP. 13.

Of the Kinges Bench. CHAP. 13.

Of the court of common pleas. CHAP. 14.

Of the two maner of issues. CHAP. 15.

Of the sherife of the shire, and of the Court of Exchequer. CHAP. 16.

Of the xij men. CHAP. 17.

Of parties of Shires called Hundreds, Lathes, Rapes, Wapentakes. CHAP. 18.

Of the court Baron. CHAP. 19.

Of the Leete, or Law day. CHAP. 20.

Of the proceedinges of causes criminall, and first of the Iustices of the Peace. CHAP. 21.

Of hue and crie and recognisaunce taken vppon them that may giue euidence. CHAP. 22.

Of the Coroner. CHAP. 23.

Of the Constables. CHAP. 24.

Of the Sessions of Gaole deliuerie, and the definitiue proceedings in causes criminall. CHAP. 5.

Certaine orders peculiar to England, touching punishments of malefactors. CHAP. 26.

Of treason, and the triall which is vsed for the higher nobilitie and Barons. CHAP. 27.

THE THIRDE BOOKE.

Of that which in other Countreis is called Appellation, or Prouocation, to amend the iudgement, or sentence definitiue, which is thought vniustly geuen in causes criminall. CHAP. 1.

What remedie is, if the sentence be thought vniustlie giuen. CHAP. 2.

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

Of the court of Starre Chamber. CHAP. 4.

Of the Courtes of Wardes and Liueryes. CHAP. 5.

The Duchie Court. CHAP. 6.

The Court of requestes. CHAP. 7.

Of wiues and mariages. CHAP. 8.

Of Children. CHAP. 9.

Of Bondage and Bondmen. CHAP. 10.

Of the court which is Spirituall or Ecclesiasticall, and in the booke of Law, Court Christian, Curia Christianitatis. CHAP. 11.

§

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THE COMMON-VVELTH OF ENGLAND, AND MANER OF GOVERNMENT THEREOF.

Compiled by the honorable Sir Thomas Smith, Knight, Doctor of both lawes, and one of the principall Secretaries vnto two most worthie Princes, King EDWARD, and Queen ELIZABETH: With new additions of the cheefe Courts in England, the offices thereof, and their seuerall functions, by the sayd Author: Neuer before published.

Seene and allowed.

INVIDIA SIBI ET ALIIS VENEMVM

AT LONDON Imprinted by Iohn Windet for Gregorie Seton, and are to be solde at his shoppe vnder Aldersgate. 1589.

To the Reader.

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[Page]

TO conceale the graces inspired by God, or the gifts ingraffed by nature, or the vertues atchieued vnto our selues by industrie, in al ages, & of all vvise men vvas accounted vnduetifulnes, vnkindnes and impietie vnto that Commonvvealth, in the vvhich, and vnto the vvhich vvare both bread and borne: but to suppresse the vvorthie vvorkes of any Author, may iustlie be iudged not onelie iniurie to the person, but euen enuie at the vvhole vvorlde. Wherefore, chauncing vpon this short discourse, compiled by the honourable Knight Sir Thomas Smith, and considering that the same coulde not but be a great light vnto the ignorant, & no lesse delight vnto the learned in the lavves and policie of sundrie Regiments: I thought it part of my duetie, as vvell for reuiuing of the fame of so notable a man, as for the publicke imparting of so pithie a Treatise, to present the same vnto thy indifferent and discreete iudgement. Wherein although the errors and rashnes of Scribes, appearing in the contrarietie, and corruption of copies, happening both by the length of time since the first making, as also by the often transcripting, [Page] might iustlie haue beene mine excuse, or rather discourage: yet vveighing the authoritie of the Author together vvith the grauitie of the matter, I made no doubt but that the reuerence due vnto the one, and the recompence deserued by the other vvould easilie counteruaile all faults committed by a Clarke and vvriter. And vvhereas some termes or other matters may seeme to dissent frō the vsuall phrase of the common lavves of this Realme: notvvithstanding, to him that vvill consider that the profession of the maker vvas principallie in the ciuil lavves, and therefore not to bee expected as one excellent in both, and also that the finishing of this vvorke vvas in Fraunce farre from his Librarie, and in an ambassage euen in the midst of vvaightie affaires, it cānot nor ought not vvithout great ingratitude be displeasant or in any sort disliking. Wherefore (gentle Reader) accept in good part my zeale and this honorable mans trauaile, assuring thy selfe that the same framed by an expert vvorkemaster, and forged of pure and excellent mettall, vvill not faile in prouing to be a right commodious instrument.

Vale.

[Page]THE MANER OF GOVERNMENT OR POLICIE OF THE REALM OF ENGLAND.

Of the diuersities of common Wealthes or gouernment. Chapter 1.

THey that haue written heretofore of Commonwealthes, haue brought them into thrée most simple and speciall kindes or fashions of gouernment. The first, wher one alone doth gouerne, is called of the Gréeks [...], the second,Monarchia. where the smaller number, commōly called of them [...], and the thirde where the multitudeAristocratia. Democratia. doth rule [...]. To rule, is vnderstoode to haue the highest and supreme authoritie of commaundement. That part or member of the common wealth is sayd 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 gouernment, is taken in euerie common wealth to bée iust and lawe: As a rule is alway to be vnderstoode to [Page] be straight, and to which all workes bée to be conformed, and by it to be iudged: I doe not meane the Lesbians rule, which is conformed to the stone: but ye right rule whereby the Artificer and the Architect doe iudge the straightnes of euery mans worke, he to be reckoned to make his worke perfectest, who goeth néerest to the straightnesse.

What is iust or Law in euery Common wealth or gouernment. CHAP. 2.

NOw it doeth appeare, that it is profitable to euerie common wealth (as it is to euery thing generallie and particularly) to be kept in her most perfect estate. Then if that part which doeth beare the rule, doe commaund that which is profitable to it, and the commandement 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 beIust. 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, (if it be ciuilly vnderstoode) as Plato would make it. But as there is profitable, and likelihode of profite, so there is right, and likelyhode of right. And as well may the ruling and soueraigne part commaunde 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 hee attempteth to doe contrarie to the Lawe which is alreadie put, he therefore by the law is iustly to be condemned, because his doing [Page] is contrarie to the law, and the ordinance of that part which doeth commaund.

Another diuision of Commonwealthes. CHAP. 3.

BUt this matter yet taketh an other doubt: for of these maner of rulings by one, by the fewer part, & by the multitude or greater number, they which haue more methodically, and more distinctly & perfectly written vpon them, doe make a subdiuision: and diuiding each 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 ye 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 Commonwealth 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 mo in number, [...].

Example of changes in the maner of Gouernment. CHAP. 4.

IN Commonwealths which haue had long continuance, the diuersities of times haue made all these maners of ruling or gouernment to be séene: As in Rome, kings, Romulus, Numa, Seruius: tyrants, 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 [Page] succession of the Tribunate, and manifestly in the Decemuirate, but more perniciouslie in the Triumuirate of Caesar, Crassus, and Pompeius: and and afterwarde in the Triumuirate of Octauius, Antonius, and Lepidus: The common welth and rule of the people, as in the expulsing of the Decemuiri, and long after, especially after ye law was made, either by Horatius, or (as some would haue it) Hortentius, quod plebs sciuerit, idpopulum teneat: And the ruling and vsurping of the popular and rascall, as a little before Sylla his reigne, & a little before Caius Caesars reigne. For the vsurping of the rascalitie can neuer long indure, but necessarily bréedeth, & quickly bringeth foorth a tyrant. Of this hath Athens, Syracuse, Lacedemon, and other old auncient ruling Cities had experience, and a man néede not doubt but that other common wealths haue followed the same rate. For the nature of man is neuer to stand stil 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 & turmoyles of sicknes and recouering, seldome standing in a perfect health neither of a mans body it selfe, nor of the politike bodie which is compact of the same.

Of the question vvhat 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 thrée last named which be rather a sicknes of the politike bodie, than perfect and good estates) if the lawes be made, as most like they be alwayes to maintaine that estate: the question remayneth, whether the obedience of them be iust, and [Page] the disobedience wrong? the profite and conseruation of that estate right and iustice, or the dissolution? and whether a good and vpright man, and louer of his Countrey ought to maintaine and obey them, or to séeke by all meanes to abolish them? which great and hauty courages haue often attempted: as Dion to rise vp against Dionysius, Thrasibulus against the xxx. tyrants, Brutus and Cassius against Caesar, which hath bin cause of many commotions in common wealthes, wherof 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 alwaies a doubtful and hasardous matter to meddle with the changing of the lawes and gouernment, or to disobey the orders of the rule or gouernment, which a man doeth finde alreadie established.

That common vvealths or gouernments are not most commonly simple, but mixt. CHAP. 6.

NOw although the gouernments of common wealthes be thus deuided into thrée, and cutting ech into two, so into sixe: yet you must not take, that ye shall finde any common wealth or gouernment simple, pure and absolute in his sort and kind, but as wise men haue deuided for vnderstādings sake, and fantasied foure simple bodies which they call elements: as fire, ayre, water, earth, and in a mans bodie foure complections or temperatures, as cholericke, sanguine, phlegmatique, and melancholike: not that yee shal finde the one vtterly perfect without mixtion of the other, for that nature almost will not suffer: but vnderstanding doth discerne [Page] ech nature as in his sinceritie: so seldome or neuer shall you finde common wealths or gouernment, which is absolutely and sincerely made of any of them aboue named, but alwayes mixed with another, & hath the name of that which is more, and ouerruleth the other alwaies 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 state of a king, who by succession or election, commeth with the good will of the people, to that gouernment, and doeth administer the Commonwealth by the lawes of the same, and by equitie, and doeth séekeRex. the profite of the people as much as his owne. A tyrant 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 aduiseTyrannus. and consent of the people, and regardeth not the wealth of his Commons, but the aduauncement of himselfe, his faction and kinred. These definitions doe containe thrée differences: the obteyning of the authoritie, the maner of administration therof, and the butte or marke whereunto it doeth tend and shoote. So as one may be a tyrant by his entrie and getting of the gouernment, and a king in the administration thereof. As a man may thinke of Octanius, and peraduenture of Sylla. For they both conming by tyranny and violence to that state, did same to trauaile very much for the better order of the commonwealth: how be it either of them after a diuers maner. Another 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 [Page] was vtterly tyrannicall, of Nero after fiue yeares, of Domitian and Commodus very shortly vpon their new honor. Some both in the comming to their Empire, and in the butte which they shoote at, be kings, but the maner of their ruling is tyrannicall: as many Emperors after Caesar and Octauius, and many Popes of Rome. The Emperors claime this tyrannicall power by pretence of that Rogation or Plebiscitum, which Caius Caesar, or Octauius obtained, by which all ye people of Rome did conferre their power and authority vnto Caesar wholly.

The Pope groundeth his from Christ (cui omnis potestas data est in coelo & in terra) whose successor he pretē deth 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 do iudge the same of the Kings of Fraunce and certaine Princes of Italie and other places, because they make and abrogate lawes and edictes, lay on tributes and impositions of their owne will, or by the priuate counsell & aduise of their friends and fauourers onely, without the consent of the people. The people I call that which the worde Populus doeth signifie, the whole body, and the thrée estates of ye 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 gouernment. 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 doe call that kinde of administration which the Gréekes doe call [...], not tyrannie, but the [Page] absolute power of a king, which they woulde pretende that euery 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 very dangerous, as well to him that doeth vse it, and much more to the people vpon whom it is vsed: whereof the cause is the frailtie of mans nature, which (as Plato saith) can not abide or beare long that absolute and vncontrouled authoritie, without swelling into too much pride and insolencie. And therefore the Romanes did wisely, who woulde not suffer any man to kéepe the Dictatorship aboue sixe monethes, because the Dictators (for that time) had this absolute power, which some Gréekes named a lawfull tyrannie for a time. As I remember, Aristotle, (who of all wryters hath most absolutely & methodically treated of the diuision and natures of common wealthes.) maketh this sort of gouernment to be one kind of kings. But all commeth to one effect: for at the first, all kings ruled absolutely, as they who were either the heads and most ancient of their families, deriued out of their owne bodies, as Adam, Noa, Abraham, Iacob▪ Esau, reigning absolutely ouer their owne children and bondemen, as reason was: or els in the rude world amongst barbarous & ignorant people, some one then whom God had endued with singular wisdome to inuent thinges necessarie 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 excellencie willingly had this authoritie geuen him of the multitude, and of the Gentiles when he was dead, & almost when he was yet liuing, was taken for [Page] a God, of others for a Prophet. Such among the Jewes were Moses, Iosua, and the other Judges, as Samuel, &c. Romulus and Numa amongst the Romanes, Lycurgus and Solon and diuers other among the Gréekes, Zamolxis among the Thracians, Mahomet among the Arabians: And this kinde of rule among the Gréekes is called [...] which of it self 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, waxed insolent and proud, vniust and not regarding the common wealth, committed such actes as were horrible and odious: as, killing mē without cause, abusing their wiues & daughters, taking and spoyling all mens goods at their pleasures, and were not shepheards as they ought to be, but rather robbers and deuourers of the people, whereof some were cōtemners of God, as Dionysius, other while they liued like deuils, and would yet be adored & accoū ted 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 Gréeke, Latine, and English, a tyrant is counted he, who is an euil king, and who hath no regard to the wealth of his people, but séeketh onely to magnifie himselfe and his, and to satisfie his vicious and cruell appetite, without respect of God, of right, or of the law: bicause that for the most part, they who haue had that absolute power, haue beene such.

Of the name of king, and thadministration of England. CHAP. 9.

THat which we cal in one sillable king in English, the old Englishmen, and the Saxons, from whom our [Page] tongue is deriued, to this day call in two sillables, cyning, which whether it cōmeth of cen or ken, which betokeneth to know and vnderstand, or can, which betokeneth to be able, or to haue power, I cannot tel. The participle absolute of the one we vse yet, as when we say, a cunning man, Vir prudens, aut sciens: the verbe of the other, as I can do this, possum hoc facere. By old and auncient histories that I haue red, I do not vnderstand that our nation hath vsed any other generall authoritie in this realme neither Aristocratical, nor Democratical, but onely the royall and Kingly maiestie which at the first was deuided into many and sundrie kings, ech absolutely reigning in his Countrey, not vnder the subiection of other, till by fighting the one with the other, 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 kings, neither he who first had all, tooke any inuestiture at the hands of the Emperor of Rome, or of any other superiour or forraine Prince, but held of God to him self, and by his sword, his people and crowne, acknowledging no Prince in earth his superiour, & so it is kept and 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 then also his enemie, and his most gréeuous torment (as some histories doe witnes) 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 yerely. But that acte being neither approoued by his people, nor established by Acte of Parlement, was foorthwith, & euer sithens taken for nothing, either to binde the king, his successors or Subiects.

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What is a Common wealth, and the partes thereof. CHAP. 10.

TO be better vnderstoode hereafter, it is necessary yetRespublica. to make a third diuision of the Common wealth by the partes thereof. A Common wealth is called a societie or common doing of a multitude of frée men, collected together, and vnited by common accord & couenants among themselues, for the conseruation of themselues as wel 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 done, ech deuideth himself 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) fiue thousande, or tenne thousande bondmen whom he ruled well, though they dwelled all in one Citie, or were distributed into diuers villages, yet that were no commō wealth: for the bondman hath no communion with his master, the wealth of the Lord is onely sought for, and not the profit of the slaue or bondeman. For as they who write of these things haue defined, a bondman or slaue is as it were (sauing life and humane reason) but the instrument of his Lorde, as the axe, the sawe, the chessyll and gowge is of the Carpenter. Trueth it is, the Carpenter looketh diligently to saue, correct and amend all these: but it is for his owne profite, and in consideration of him self, not for the instruments sake. And as these be instruments of the Carpenter, so the plow, the cart, the horse, oxe or asse, be instruments 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 [Page] is onelie regarded, and there is no mutuall societie or portion, no law or pleading betwéene the one and the other. And (as he saith) what reason hath the pot to say to the Potter, why madest thou me thus? or why doest thou break me after thou hast made me? euen so is the bondman or slaue which is bought for money: for he is but a reasonable and liuing instrument, the possession of his Lord 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 Lord. Wherefore, except there be other orders and administrations amongst 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 onelie fréemen) a man may doubt whether his administration be to be accounted a common wealth, or a kingdome, or he rather to be reputed onely as one that hath vnder him an infinite number of slaues or bondmen, among whom there is no right, law, nor Commonwealth compact, but onely the will of the Lord and Segnior. Surely none of the old Gréekes 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 freemen, 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 diuers sort, each hauing care of the familie: the man to get, to trauaile abroade, to defende: [Page] the wife, to saue that which is gotten, to tarie at home, to distribute that which commeth of the husbandes labor, for the nutriture of the children, and family of them both, and to kéepe all at home neate and cleane. So nature hath forged ech part to his office: the man sterne, strong, bold, aduenturous, negligent of his beautie, and spending. The women weake, fearefull, faire, curious of her beautie, and sauing. Either of them excelling other in witte and wisdome, to conduct those thinges which appertaine to their office, and therefore where their wisdome doeth excell, therein it is reason that ech should gouerne. And without this societie of man and woman, the kinde of man could 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 himselfe to another, and so to liue in couple, than to adherd himselfe with many. Although of all things, or liuing creatures, a man doeth shew him selfe most politike, yet can he not well liue without the societie and felowship ciuill. He that can liue alone, saith Aristotle, is either a wilde beast in a mans likenes, or els a god rather than a man. So in the house and family 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, and the best doe gouerne, and where not one alwaies: but sometime, and in some thing one, and sometime and in some thing another doth beare the rule. Which to maintaine for his part, God hath geuen to the man great witte, bigger strength, and more courage, to compell the woman to obey by reason, or force: and to the woman beautie, faire countenance, and swéete words, to make the man to obey her againe for loue. Thus ech obeyeth and commandeth other, andDomus, seu familia. they two together rule the house. The house I call here [Page] the man, the woman, their children, their seruants [...] and frée, their cattle, their housholdstuffe, and all other things which are reckoned in their possession, so long as all these remaine together 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 gouernment.

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

BUt for so much as it is the nature of all thinges to encrease or decrease: this house thus increasing and multiplying by generation, so that it cānot wel be comprehended in one habitation, and the children waxing bigger, stronger, wiser, and thereupon naturally desirousProuining, or propagation, is when a man layeth a brāch of a Vine or Osier, or any other tree into the ground, so that it taketh roote of it self, and may liue though it be cut clean from the first roote or stock. Pagus. Oppidum. Ciuitas. Regnum. to rule, the father and mother sendeth them out in couples as it were by prouining or propagation. And the childe by mariage beginneth as it were to roote towards the making of a new stocke, and thereupon another 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 houses was made a stréete or village: of many stréetes and villages ioyned together, a Citie or Borough. And when many cities, boroughs and villages, were by common and mutuall consent for their conseruation ruled by that one and first father of them all, it was called a nation or kingdome. And this séemeth the first and most naturall 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 ofspring to striue with him for the superioritie, [Page] or to goe about to gouern, or any wise to dishonour him, from whom he had receiued life and béeing. And therefore such a one doeth beare the first and naturall 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 then any one, or all of them. They againe honoured him as their father of whose body they came, obeyed him for his great wisdome and forecast, went to him in doubtful cases as to an Oracle of God, feared his curse and malediction as procéeding from Gods owne mouth. Hée againe vsed noriture: for ech paine put vpon them, he estéemed as layd vpon himselfe.

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

BUt when that great Grandfather was dead, the sonnes of him, and brethren among themselues, not hauing that reuerence to any, nor confidence of wisedome in any one of them, nor that trust the one to the other, betwéene whom (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, necessarilie agréed 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 alwayes the rule, nor any one be neglected. And by this meanes, if any one fayled during his yeare or time by ignorance, the next (being either wyser of himselfe, or els by his brothers error and fault) amended it. And in the meane while, at diuers and most times [Page] 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 eche of their families, generally and particularly. Thus a few, being heads, and the chiefe of their families, equall in birth and nobilitie, and not much different in riches, gouerned their owne houses, and the descendents of them particularly, and consulted in common vpon publike causes, agréeing also vpon certaine lawes and orders to bée kept amongst them. So the best, chiefest, and sagest did rule, and the other part had no cause to striue with them, nor had no cause nor apparance to compare with any of them, neither for age nor discretion, nor for riches or nobilitie. The rulers sought ech to kéepe & maintaine their posteritie, as their sonnes and nephewes, and such as should succéede them, and carie their names when they were dead, 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 forraine and barbarous nations, which were not of their progenie, tongue, or religion, as against wilde and sauage beastes. This séemeth the naturall sourse, and beginning or image of that rule of the fewer number, which is called of the Gréekes [...], and of the Latines optimatum respublica.

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

NNow, as time bringeth an ende of all things, these brethren being all dead, and their ofspring increasing [Page] dayly 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 things being such as for the which men in societie and league doe most striue, that is, honour and profite, no man of frée 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 receiued to beare rule, and haue his part of the honor: and (if any were) of the profite which came by administration of the commonwealth. For whosoeuer came of that olde great Grandfathers race, he accounted himselfe as good of birth as any other. For seruice to the commonwelth, all, or such a number had done it, as they coulde not bée accounted few. And if a few would take vpon them to vsurpe ouer the rest, the rest conspiring together would soone be masters ouer them, and ruinate them wholly. Whereupon necessarily it came to passe, that the common wealth must turne and alter as before from one 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 defend themselues against all other, their strife béeing onely for empire and rule, and who should doe best for the common wealth, whereof they would haue experience made by bearing office and beyng magistrates. This I take for the first and naturall beginning of the rule of the multitude which the Gréekes called [...]: the Latines some Respublica by the generall name, some populi [Page] 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, & doe not alwaies come of ambitiō or malice: And that according to the nature of the people, so the cōmon wealth is to it fit and proper. And as all these iii. kindes of common wealths are naturall, so when to ech partie or espece and kinde of the people that is applied which best agréeth, like a garmēt to the bodie or shoe to the foote, then the bodie politicke is in quiet, & findeth ease, pleasure and profite. But if a contrarie forme be giuen to a cōtrary maner of people, as when the shoe is too litle or too greate for the foote, it doth hurt and encomber the conuenient vse therof, so the frée people of nature tyrannized or ruled by one against their willes, were he neuer so good, either faile of corage and wexe seruile, or neuer rest vntil they either destroy their King and them that would subdue them, or be destroyed themselues. And againe, another sort there is, which without being ruled by one Prince, but set at libertie cannot tell what they should doe, but either through insolencie, pride, and idlenes, will fall to robberie and all mischiefe, and to scatter and dissolue themselues,Graeci. Romani Samnits. Vandali. Dani. Norwegi. Sueti. or with foolish ambition and priuate strife consume one another, and bring themselues to nothing. Of both these two wee haue histories inow to beare witnesse▪ as the Gréekes, Romanes, Samnites, Danes, Uandalles, and others. Yet must you not thinke that all [Page] common wealths, administrations and rulings, began on this sort, by prouining or propagation, as is before written: but many times after a great battaile and long warre, the Captaine who led a multitude of people, gathered peraduenture of diuers nations and languages, liking the place which he hath by force cōquered, tarieth there, and beginneth a commō wealth after this maner, & for the most part a kingdome. As the Gothes & Lumbardes in Italie, the Frenchmē in Gaule, the Sarasins in Spaine and part of France, the Saxōs in great Britaine, which is now called England: of which, whē that one and chiefe Prince is dead, the nobler sort consult among themselues, and either choose another head & king, or deuide it into more heads and rulers, so did the Lumbards in Italie, and the Saxons in England: or take at the first a commō rule and popular estate, as the Zwitzers did in their cantons, and doe yet at this day, or els admit the rule of a certaine few, excluding the multitude and communaltie, as the Paduans, Ueronenses, and Uenetians haue accustomed.

The diuision of the partes and persons of the Commonwealth. CHAP. 16.

TO make all things yet cleare before, as we shal goe, there aryseth another diuision of the partes of the common wealth. For it is not enough to say that it consisteth of a multitude of houses & families, which make stréetes & villages, and the multitude of the stréetes and villages make townes, and the multitude of townes the realm, & that fréemen be considered only in this behalfe, as subiects and citizens of the commonwealth, and not bondmen, who can beare no rule nor iurisdiction ouer [Page] fréemén, as they who be taken but as instruments & the goods and possessions of others. In which consideration also we doo reiect women, as those whom nature hath made to kéepe home and to nourish their familie & children, and not to meddle with matters abroade, nor to beare office in a citie or common-wealth no more than children and infants: except it be in such cases as the authoritie is annexed to the bloud and progenie, as the crowne, a dutchie, or an erledome; for there the bloud is respected, not the age nor the 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 and next successors in the dignitie, and vpon whom by right of the bloud that title is descended: These I say haue the same authoritie although they be women or children in that kingdome, dutchie or erledome, as they should haue had if they had bin men of full age. For the right and honour of the bloud, 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 s [...]re not accustomed (otherwise) to intermeddle with publicke affaires, being by common intendment vnderstood, that such personages neuer doe lacke the counsell of such graue and discréete men as be able to supplie all other defectes. This (as I saide) 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 Romanes of Patrity and plebei, the one striuing with the other a long time, the patrity many yéeres excluding the plebei from bearing rule, vntill at last all magistrates were made cōmon betwéene them: yet was there another diuision of the Romanes, into senatores, equites and [Page] plebs: the Grekes had also [...]. The French haue also at this day, les nobles, & la populaire, or gentils homes & villanies: we in, England diuide our men commonly into foure sortes, Gentlemen, Citizens, yeomen, artifiters, and labourers. Of gentlemen the first and chiefe are the king, the prince, dukes, marquifes, earles, bicountes, barrens, and these are called [...] the nobilitie, and all these are called Lords and noblemen: next to these be knights, esquires and simple gentlemen.

Of the first part of Gentlemen of England, called Nobilitas maior. CHAP. 17.

DUkes, marquises, earles, vicounts, and barons, eitherNobilitas maior. Eldest sonnes of dukes are not earles by birth, but lords and take their place aboue earles; and so are earles eldest sonnes in respect o [...] barons. be created by the Prince, or come to that honor by being the eldest sonnes, as highest and next in succession to their Parents. For the eldest of Dukes sonnes during his fathers life is called an Earle: an Earles sonne is called by the name of a Uicount or Baron, or els according as the creation is. The creation I call the first donation and condition of the honour (geuen by the Prince for good seruice done by him, and aduauncement that the Prince will bestowe vpon him) which with the title of that honor is commonly (but not alwayes) geuen to him and to his heires, males onelie:Esquires of honor, or Lords. the rest of the sonnes of the Nobilitie, by the rigour of the lawe be but Esquires, yet in common spéeche, all Dukes and Marquises sonnes, and the eldest sonne of an Earle be called Lords. The which name commonlie doeth agrée to none of lower degrée than Barons, excepting such onely, as be thereunto by some speciall office called. The Baronny or degrée of Lords doeth [Page] aunswere to the dignitie of the Senators of Rome, and the title of our Nobilitie to their patricii: when patricii did betoken senatores, aut Senatorum filios. Census Senatorum was in Rome, at diuers times diuers, and in England no man is created a Baron, except he may dispend of yerely reuenue one thousand pounds, or one thousand markes at the least. Uicounts, Earles, Marquises and Dukes more, according to the proportion of the degrée & honour, but though by chance he or his sonne haue lesse, he kéepeth his degrée: 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 the vpper house in the Parlement, although they kéepe the name of Lord still.

Of the second sort of Gentlemen, which may be called Nobilitas minor, and first of Knights. 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 kings eldest sonne hath the title of the Daulphine, and he, or the next heire apparant to the Crowne is Monsire, so in England the kinges eldest sonne is called [...] the Prince. Knights therefore be not borne but made, either before the battaile to encourage them the more to aduenture their liues, or after the conflict, as aduauncement for their hardinesse and manhoode alreadie shewed: or out of the warre for some great seruice done, or some good hope through the vertues which doe appeare in them. And they are made [Page] either by the king himselfe, or by his commission and royall authoritie geuen for the same purpose, or by his Lieutenant in the warres, who hath his royall and absolute power committed to him for that time. And that order séemeth to answere in part to that which the Romanes called Equites Romanes, differing in some pointes, and agréeing in other, as their common wealth and ours doe differ and agrée: for neuer in all points one common wealth doeth agrée with another, no nor long time any one common wealth with it selfe. For all changeth continually to more or lesse, and still to diuers and diuers orders, as the diuersitie of times doe present occasion, & the inutabilitie of mens wittes doeth inuent and assaye new wayes, to reforme and amend that wherein they doe finde fault. Equites Romani, were chosen ex censu, that is, according to their substaunce and riches. So bee knights in England most commonly, according to the yerely reuenue 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 knights land or fée, but they onely whom the king will so honour. The number of Equites was vncertaine, and so it is of knights, at the pleasure of the Prince. Equites Romani had equum publicum. The knights of England haue not so, but finde their owne horse themselues in peace time, and most vsually in warres.

Census Equester was among the Romans at diuers times of diuers value: but in England whosoeuer may dispende of his frée landes fourty poundes sterling of yerely reuenue, by an olde lawe of England, either at the coronation 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 that order and honor, or to pay a fine, which many not [Page] so desirous of honour as of riches, had rather disburse: Some, who for causes are not thought worthie of that honour and yet haue abilitie, neither be made knightes, though they would, and yet pay the fine of xl. l. sterling, at that time when this order began, which maketh now Cxx. l of currant money of England: as I haue more at large declared in my book of the diuersitie of standards, or the valor of monies.

When the Romanes did write Senatus populusque Romanus, they séemed to make but two orders, that is, of the Senate, and of the people of Rome, and so in the name of people they contained Equites and plebem: so when we in England doe say the Lords and the Commons: the knights, esquires, and other gentlemē, with citizens, burgesses and yomen, be accounted to make the Commons, In ordayning of lawes, the Senat of Lords of England is one house, where the Archbishoppes and Bishoppes also be, and the King or Quéene for the time being as chiefe, the knights and all the rest of the Gentlemen, Citizens and Burgesses which be admitted to consult vpon the greatest affaires of the Realme, be in another house by themselues, and that is called ye house of the Commons, as wee shall more clearely describe when we speake of the Parlement. Whereupon this word knight is deriued, and whether it doe betoken no more but that which miles doeth in latine, which is a Souldier, might be mooued as a question. The worde Souldier now seemeth rather to come of sould & paimēt, and more to betoken a waged or hired man to fight, than otherwise, yet Caesar in his cōmentaries called soldures in the tongue gallois, men who deuoted & swore themselues in a certaine band or oath 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, vpon their owne charges, and for their aduancement, [Page] and by such common oath or band that did follow the wars, were (possibly) [...] called knights or milites, and now 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 guarde and seruants, picked or chosen men out of the rest, being called in the Almaine language knighten, which is as much to say as seruāts: these men being found of good seruice, the worde afterward was taken for an honor, and for him who maketh profession of armes. Our language is so changed, that I dare make no iudgement thereof. Now wee call him knight in English, that the French calleth cheualier, and the Latine equitem, or equestris ordinis.

And when any man is made a knight, he knéeling downe is stroken of the Prince, with his sword naked, vpon the back or shoulder, the Prince saying, sus or sois chiualier au nom de Dieu, and (in times past) they added S, George, & at his arising the Prince saith, auaū cér. This is the maner of dubbing of knightes at this present: and that terme dubbing, was the olde terme in this point, & not creation. At the coronation of a king or Quéene, there be knights of the bath made, with long & more curious ceremonies. Knights bannerets are made in the field, with the ceremonie of cutting off the poynt of his standert, and making it as it were a baner: he being before a bacheler knight, is now of a greater degrée, allowed to display his armes in a baner as Barons do. But this order is almost growen out of vse in England. But how soeuer one be dubbed or made a knight, his wife is by and by called a Lady, as well as a Barons wife: he himselfe is not called Lord, but hath to his name in common appellation added this sillable, Sir, as if he before were named Thomas, William, Iohn or Richard, [Page] afterward he is alwaies called Sir Thomas, Sir William, Sir Iohn, Sir Richard, and that is the title which men giue to Knightes in Englande. This may suffice at this time, to declare the order of knighthoode, yet there is an other order of Knights in England which be called the Knights of the Garter. King 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 Castel 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 choise out of his owne realme and dominions, and all Christendome: 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 and heroicall, to weare at high feasts, as to so high and princely an order was méete: of which order he and his successors Kinges and Quéenes 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 [Page] 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 doe come. These be taken for no distinct order of the Commonwealth, but do goe with the residue of the Gentlemen: saue that (as I take it) they be those who beare armes, testimonies (as I haue saide) of their race, and therefore haue neither creation nor dubbing: or els 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 bloud and race doeth make noble and knowen, [...] in Gréeke, the Latines call them all Nobiles, as the French Nobles, [...] or Nobilitas in Latine is defined, honour or title geuen, for that the ancestor hath béene notable in riches or vertues, or (in fewer words) olde riches or prowes remayning in one stock. Which if the successors do kéep and followe, they be verè nobiles, and [...]: if they doe not, yet the fame and wealth of their ancestors 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 serued the efficacie of the worde. Gens in Latine betokeneth the race and sirname, so the Romanes had Cornelios, Sergios, Appios, Fabios, Armilios, Pisones, Iulios, Brutos, Valerios, of which who were Agnati, and therefore kept the name, were also Gentiles: and remayning the [Page] memorie of the glorie of their progenitors fame, were▪ Gentlemen 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 shewen, than the old smell of auncient race newly defaced by the cowardise and euill life of their nephewes and discendants coulde make the other to be. Thus the Cicerones, Gatones, and Marij had much a doe with those auncients, and therfore said Iuuenalis:

Malo pater tibi sit Thersites, dummodo tu sis

Aeacidi similis vulcaniaque arma capessas,

Quám te Thersiti similem producat Achilles.

But as other Common wealths were faine to doe, so must all Princes necessarilie follow: that is, where vertue is, to honour it. And although vertue of auncient race be easier 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 tenants and neighbors to such noblemen and Gentlemen, of whom they hold, and by whom they doe dwell, which prieketh forwarde to ensue in their fathers steps. So if all this do faile (as it were great pitie it shoulde) yet such is the nature of all humaine things, and so the world is subiect to mutabilitie, that it doeth many times faile: but when it doeth, the prince and commonwealth haue the same power that their predecessors had, and as the husbandman hath to plant a new trée where the old fayleth, so hath the Prince to honour vertue where he doeth finde it, to make gentlemen, esquires, knights, barons, earles, marquises and dukes, where he séeth vertue able to beare that honor or merits, and deserues it, and so it hath alwayes béen vsed among vs. But ordinarilie the K. doth onely make knights, & create barons, or higher degrées: [Page] for as for gentlemen, they be made good cheape in England. For who soeuer studieth the lawes of the realme, who studieth in the Uniuersities, who professeth liberall Sciences: and to be short, who can liue idly, and without manuall labour, and wil beare the port, charge and countenance of a Gentleman, hee shall bee called master, for that is the title which men geue to esquires and other gentlemen, and shall be taken for a Gentleman. For true it is with vs as is said, Tanti eris aliis, quanti tibi feceris: And (if néede be) a king of Herauldes shall also geue him for money armes newly made and inuented, the title whereof shall pretende to haue béene found by the sayd Herauld in perusing and vewing of olde Registers, where his Auncestors in times past had béen recorded to beare the same. Or if he will doe it more truely, and of better faith, he will write that for the merites of that man, and certaine qualities which he doeth sée in him, and for sundrie noble actes which he hath perfourmed, he by the authoritie which he hath, as king of Heraulds and armes, geueth to him his heires these and these armes, which being done, I thinke hee may be called a Squire, for he beareth euer after those armes. Such men are called sometime in scorne, gentlemen of the first head.

Whether the maner of England in making Gentlemen so easilie, 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 that it is not amisse. For first the prince looseth nothing by it, as he should doe if it were as in France: for the yeoman or husbandman [Page] is no more subiect to taile or taxe in England than the gentleman: no, in euery payment to the King the gentleman is more charged, which he beareth the gladlier, and dareth not gainesay, for to saue and kéepe his honour and reputation. In any shewe or muster, or other particular charge of the towne where he is, he must open his purse wyder, and augment his portion aboue others, or els he doeth diminish his reputation. As for their outward shew, a gentleman (if he wil be so accounted) must goe like a gentleman, a yeoman like a yeoman, and a rascall like a rascall: and if he be called to the warres, hée must and will (what soeuer it cost him) array himselfe, and arme him according to the vocation which he pretendeth: hée must shew also a more manly courage, and tokens of better education, higher stomacke, and bountifuller liberalitie than others, and kéepe about him idle seruaunts, who shall doe nothing but wayte vpon him. So that no man hath hurt by it but he himselfe, who hereby perchance will beare a bigger sayle than he is able to maintaine. For as touching the policie and gouernment of the Commonwelth it is not those that haue to doe with it which will magnifie themselues, and goe in higher buskins than their estate will beare: but they which are to be appointed, are persons tried and well knowen, as shall be declared hereafter.

Of Citizens and Burgesses. CHAP. 22.

NExt Gentlemen be appointed Citizens and Burgesses, such as not onely be frée, and receiued as officers within the Cities, but also be of some substance to heare the charges. But these Citizens and Burgesses, [Page] be to serue the common wealth, in their cities and burrowes, or in corporate townes where they dwel. Generally in the shires they be of none account, saue onely in the common assembly of the Realme to make lawes, which is called the Parlement. The ancient cities appoint four, and ech borow two, to haue voices in it, and to geue their consent or dissent, in the name of the citie or borough for which they be appointed.

Of Yeomen. CHAP. 23.

THose whom we call yeomen, next vnto the nobilitie, knights and Squires, haue the greatest charge and doings in the common wealth, or rather are more trauayled 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 word familiar in writtes and enquestes, which is a fréeman borne English, and may dispende of his owne frée land in yerely reuenue to the summe of xl. s. sterling. This maketh (if the iust value were taken now to the proportion of monies) vi. l. of our currant money at this present. This sort of people confesse themselues to be no gentlemen, but geue the honor to all which be or take vpon them to be Gentlemen, and yet they haue a certaine preheminence and more estimation than labourers and artificers, and commonly liue wealthily, kéep good houses, and doo their busines, & trauaile to acquire riches: these be (for the most part) farmors vnto gentlemen, which with grasing, frequenting of markettes and kéeping seruaunts not idle as the gentleman doth, but such as get both their own liuing and part of their maisters, and by these meanes do come to such wealth, that they are able and daily do buy the landes of vnthriftie gentlemen, [Page] and after setting their sonnes to the schoole at the Uniuersities, to the lawes of the Realme, or otherwise leauing them sufficient landes whereon they may liue without labour, doe make their said sonnes by those meanes Gentlemen▪ These be not called masters, for that (as I said) 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, amongst their neighbors, I meane not in matters of importance, or in lawe. But in matters of lawe and for distinctiō, if one were a knight, they would write him (for example sake) Sir Iohn Finch knight, so if he be an Esquire, Iohn Finch Esquire or Gentleman, if he be no Gentleman, Iohn Finch yeoman. For amōgst 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 Esquires. So amongst the husbandmen, labourers, lowest and rascall sorte of the people, such as be exempted out of the number of the rascabilitie of the popular be called and written yeomen, as in the degrée nxet vnto Gentlemen. These are they which old Cato calleth Aratores, and optimos ciues in Republica, and such as of whom the writers of commonwealths praise to haue many 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 glad when they are deliuered thereof, are obedient to the gentlemen and rulers, and in warre can abide trauaile and labor, as men vsed to fight for their Lords of whom they hold their landes, for their wiues and children, for their countrey and nation, for prayse and honour against they come home, and to haue the loue of their Lorde and his children, to bee continned towards them and their children, which [Page] haue aduentured their liues to and with him and his. These are they which in the olde 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 harde 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 profession of knowledge of warre. These were the good archers in times past, and the stable troupe of footemen that affraide all France, that would rather die all, than once abandon the knight or gentleman their captaine, who at those daies commonly was their Lorde, and whose tenauntes they were, readie (besides perpetuall shame) to be in danger of vndoing of themselues, & all theirs if they should shew any singe of cowardise or abandon the Lorde, Knight or Gentleman of whom they helde their liuing. And this they haue amongest them from their forefathers tolde one to an other. The gentlemen of Fraunce and the yeomen of England 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 commonly on foote: howsoeuer it was, yet the gentlemen had alwaies the conduction of the yeomen, and as their captaines were eyther a foote or vpon a litle nagge with them, and the Kinges of Englande in foughten battles remaining alwaies among the footemen, as the Frenche Kings among their horsemen. Eche PrinceGeman in the Saxon is a maried man, and hereof commeth our yeoman, for after mariage men are accounted setled members in the common wealth, but not before. A yonker cō meth of yong heire which is a son & heire to a gentlemā or a young gentleman. 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 word is deriued it is hard to say: it cannot be thought that yeoman should be said [Page] a young man, for commonly wée doe not call any a yeoman till he be maried, and haue children, and as it were, haue some authoritie among his neighboures. Yonker in low Dutch betokeneth a meane gentleman, or a gay fellow. Possible our yeomen not being so bolde as to name thēselues gentlemē, when they came home, were content when they had heard by frequentation wt low Dutchmen, of some small Gentleman (but yet that would be counted so) to be called amongst them, yonker man, they calling so in warres by mockage or in sport the one an other, when they came home, yonker man, and so yeoman: which worde nowe signifyeth among vs, a man well at ease, and hauing honestly to liue, and yet not a Gentleman; whatsoeuer that word yonker man, yonke man, or yeoman doeth more or lesse signifie to the Dutchmen.

Of the fourth sorte of men which doe not rule. CHAP. 21.

THe fourth sorte or classe amongst vs, is of those which the olde Romanes called capite censii proletary or operae, day labourers, poore husbandmen, yea marchants, or retaylers which haue no frée lande, copiholders, and all Artificers, as Taylers, Shoomakers, Carpenters, Brickmakers, Bricklayers, Masons, &c. These haue no voyce nor authoritie in our Commonwealth, and no account is made of them but onely to be ruled, not to rule other, and yet they bee not altogether neglected. For in Cities and corporate townes for default of yeomen, enquestes and Juries are impaneled of such maner of people. And in Uillages they be commonly made Churchwardens, Alecunners, and [Page] many times Constables, which office toucheth more the Commonwealth, and at the first was not imployed vpon such lowe and base persons. Wherefore generally to speake of the Common wealth, or policie of England, it is gouerned, administred, and manured by thrée sortes of persons, the Prince, Monarch, and head Gouerner, which is called the King, or▪ if the crown fall to a woman, the Quéene absolute, as I haue héeretofore said: In whose name and by whose authoritie al things are administred. The gentlemen, which be diuided into two partes, the Baronie or estate of Lordes conteyning barons and all that be aboue the degrée of a baron, (as I haue declared before:) and those which be no Lords, as knights, Esquires, and simply Gentletlemen.

The thirde and last forte of persons is named the yeomanrie: Each of these hath his part and administration in iudgements, corrections of defaults, in election of offices, in appointing and collection of tributes and subsidies, or in making lawes, as shall appeare hereafter.

THE SECOND BOOKE.

[Page]

The diuision and definition of the Lawes of this Realme in generall. CHAP. 1.

THe lawes of England consist in two poyntes. Judgement and Practize.

In Judgemēt are considered the Persons. Place. Matter, and Maner.

The persons in iudgement are the Judges in their courts. Sergeantes and Counsellers.

In practise are considered the Persons, and their Office.

The persons are Protonotharies. Sollicitors, and Atturneyes.

Their office is to prepare the matter, and to make it readie for the Judges to determine.

The Protonotharies are the Clerkes in the Court which do record the matters hanging in iudgement, and do frame the pleading, enter the rules and orders of the Court, the verdites and iudgementes giuen in the same.

Solicitors are such, as being learned in the lawes, [Page] and informed of their masters cause, doe informe and instruct the Counsellors in the same.

Atturneis are such as by experience haue learned, and doe know the orders and maner of procéeding in euery Court where they serue, & doe purchase out writs and processe belonging to their Clients cause. They sée to his suits, that he be not hindered by negligence. They pay the fées belonging to the Courts, and prepare the cause for iudgement.

The places for iudgement are the courts where sentence is geuen, and the Lawes made: as, the Parlemēt, Chancerie, Kings bench, the Common-pleas, the Exchequer, the court of Wardes, the Star-chamber, the Court of Requestes, and the Duchie Court of Lancaster.

The matter of the Lawe is Justice. and Equitie.

The maner of their seuerall procéedings, followeth.

Of the Parlement, and the authoritie thereof. CHAP. 2.

THe most high and absolute power of the Realme of England consisteth in the Parlement. For as in warre, where the king himselfe in person, the Nobility, the rest of the gentilitie, and the yeomanrie are, is the force and power of England: So in peace and consultation where the Prince is to geue life, and the last and hig [...] commaundement, the Barronnie for the Nobilitie and higher: the Knightes, Esquires, Gentlemen and Commōs for the lower part of the commonwealth, the Bishops for the Cleargie be present to aduertise, [Page] consult and shew what is good and necessarie for the Cō mon wealth, and to consult together, and vpon mature deliberation, euery bill or law being thrise read and disputed vpon in either house, the other two parts first ech a part, and after the Prince himselfe in presence of both the parties, doth consent vnto and alloweth. That is the Princes and whole Realmes déede: whereupon iustly 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 Parlement abrogateth olde lawes, maketh newe, geueth order for things past, and for thinges hereafter to bée followed, changeth rightes and possessions of priuate men, legitimateth bastardes, establisheth formes of Religion, altereth waightes and measures, geueth formes of succession to the Crowne, defineth of doubtful rights, wherof is no law already made, appointeth subsidies, tailes, taxes, and impositiōs, geueth most frée pardons and absolutions, restoreth in bloud and name, as the highest Court, condemneth or absolueth them whom the Prince will put to [...] triall. And to be short, all that euer the people of Ro [...] might doe, either in Centuriatis comitijs, or tributis, the same may be done by the Parlement of England, which representeth, and hath the powerAlias Tribunitiis. of the whole Realme, both the head and the bodie. For euery Englishman is intended to be there present, either in person, or by procuratiō and atturney, of what preheminence, state, dignitie, or qualitie soeuer hée bée, from the Prince (be he king or Quéene) to the lowest person of England. And the consent of the Parl [...]nt is taken to be euery mans consent.

The Judges in Parlement are the king [...]mes Maiestie, the Lordes temporall and spirituall, the Commons represented by the Knightes and Burgesses [Page] of euery Shire and Borough Towne. These all, or the greater part of them, and that with the consent of the Prince for the time being, must agrée to the making of Lawes.

The officers in Parlement are the Speakers, two Clarkes, the one for the higher house, the other for the lower, and the Committies.

The Speaker is he that doeth commend and prefer the billes exhibited into the Parlement, and is ye mouth of the Parlement. He is commonly appointed by the King or Quéene, though accepted by the assent of the house.

The Clarkes are the kéepers of the Parlement Rolles and Recordes, and of the Statutes made, & haue the custodie of the priuate Statutes not printed.

The Committies are such as either the Lordes in the higher house, or Burgesses in the lower house, doe choose to frame the Lawes vpon such billes as are agréed vpon, and afterward to be ratified by the sayde houses.

The forme of holding the Parlement. CHAP. 3.

THe Prince sendeth foorth his rescripts or writtes to euery duke marques, baron, and euery other Lorde temporall or spirituall who hath voyce in the Parlement, to be at his great counsell of Parlement such a day (the space from the date of the writte is commonlie at the least fourty dayes:) he sendeth also writtes to the [Page] Sherifes of euery shire, to admonish the whole shire to choose two knights of the Parlement in the name of the shire, to heare and reason, and to geue their aduise and consent in the name of the Shire, and to bée present at that day: likewise to euery citie and towne, which of auncientie hath béene wont to find burgesses of the parlement, so to make election, that they might be present there at the first day of the Parlement. The Knightes of the shire be chosen by all the Gentlemen and yeomen of the shire, present at the day assigned for the election: the voyce of any absent can be counted for none. Yeomē I call here (as before) that may dispende at the least xl. s. of yerely rent of frée lande of his owne. These méeting at one day, the two who haue the more of their voyces be chosen knights of the shire for that Parlement: likewise by the pluralitie of the voyces of the citizens and burgesses, be the burgesses elected. The first day of the Parlement the Prince and all the Lordes in their robes of Parlement doe méet 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) doe constitute vnder their hand and seale some one of those who be present, as their procurer, or atturney, to geue voice for them, so that by presence or atturney and proxey they be all there, all the princes and Barons, and all Archbishops and bishops, and (when Abbots were) so many abbots as had voice in Parlement. The place where the assemblie 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 voice and Orator of the Prince. On the one side of that house or chamber sitteth the archbishops and byshops, ech in his ranke, on the other side the dukes and barons. In the [Page] middest thereof vpon woolsackes sitteth the Judges of the realme, the maister of the roules, and the secretaries of estate. But these that sit on the woolsackes haue no voice in the house, but onely sit there to answere their knowledge in the law, when they be asked, if any doubt arise among the Lordes, The secretaries do answere 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 hee 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 iij. C. and iiij. C.) are called by such as it pleaseth the Prince to appoint, into an other great house or Chamber by name, to which they answere: and declaring for what shire or towne they answere then they are willed to choose an able and discréete man to be as it were the mouth of them al, and to speake for and in the name of them, and to present him so chosen by them to the Prince: which done they comming all with him to a barre, which is at the nether end of the vpper house, there he first praiseth the Prince, then maketh his excuse of vnabilitie, and prayeth the Prince that he would commaund the commons to choose another. The Chancellor in the Princes name doth so much declare him able, as hée did declare himselfe vnable, and thanketh the commons for choosing so wise, discréete and eloquent a man, and willeth them to goe and consult of lawes for the cōmon wealth. Then the speaker maketh certaine requests to the Prince in the name of the commons, first that his maiestie would be contēt [Page] that they may vse and enioy all their liberties and priuiledges that the common house was woont to enioy.

Secondly that they might franckly and fréely say 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, wherupon they shall desire to haue the aduise or cōference with his Malestie or with any of the Lordes, that they might do it: all which he promiseth in the Commons names, that they shall not abuse, but haue such regarde as most faithful, true and louing subiectes ought to haue to their Prince.

The Chauncelor answereth in the Princes name, as apperteineth. And this is all that is done 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 billes. 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 done they go to another, and so another bill. After it hath bin once or twice read, and doth appeare that it is somewhat liked as reasonable, with such amendment in wordes and peraduenture some sentences as by disputation séemeth to be amēded: in the vpper house the Chauncelor asketh if they will haue it ingrossed, that is to say, put into parchment: which done, and read the third time, and that eftsoones if any be disposed to obiect disputed againe among them, [Page] the Chauncelor asketh if they will go to the question: and if they agrée to go the question, then he saith, here is such a law or act concerning such a matter, which hath bin thrise read here in this house, are yée content that it be enacted or no? If the not contentes be moe, then the bill is dashed, that is to say the law is annihilated, and goeth no further. If the contentes be ye moe, then the Clarke writeth vnderneath: Soit baille aux commons. And so when they sée time, they send such billes as they haue approoued by two or thrée of those which do sit on the woolsackes to the commons: who asking licence, and comming into the house, with due reuerence, saith to the speaker: Maister 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 done they goe their way. They being gone, and the dore againe shut, the speaker rehearseth to the house what they said. And if they bée not busie disputing at that time in an other bill, hee asketh them streight way if they will haue that bill or (if there be moe) one of them.

In like maner in the lower house the speaker sitting in a seate or chaire for that purpose some what higher, that he may sée and be séene of them all, hath before him in a lower seate his Clarke, who readeth such billes as be first propounded in the lower house, or be sent downe from the Lords. For in that point ech house hath equall authoritie, to propound what they thinke méete, either for the abrogating of some lawe made before, or for making of a newe. All billes be thrise in thrée diuerse daies read and disputed vpon, before they come to the question. In the disputing is a maruelous good order vsed in the lower House. Hée that standeth vp [Page] bareheaded is vnderstanded that he will speake to the bill. If mo stand vp, who that first is iudged to arise, is first heard, though the one do praise the law, the other disswade it, yet there is no alteration. For euery man speaketh as to the speaker, not as one to another, for that is against the order of the house. It is also taken against the order, to name him whom yée do 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 perpetual Oration not with altercation, he goeth through till he do make an end. He that once hath spoken in a bil, though he be cōfuted straight, that day may not reply, 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 would 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 seditiously against the Prince or the priuie Counsell, I haue séene them not onely interrupted, but it hath bin 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 be for vrgent causes and 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 disswade it. But when any bill is read, the speakers office is, as brieflie and as plainly as he may to declare the effect thereof to the house. If the commons [Page] do assent to such billes as be sent to them first agréed vpon from the Lords thus subscribed, Les commōs ont assentus, so if the Lords do agrée to such billes as bee first agréed vpon by the Commons, they sende them downe to the speaker thus subscribed, Les Seigneurs ont assentns, If they cannot agrée, the two houses (for euerie bill from whence so euer it doth come is thrise reade in each of the howses) if it bée vnderstoode that there is any sticking, sometimes the Lordes to the Commons, sometime the Commons to the Lordes do 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 part agrées to others billes.

In the vpper house they giue their assent and dissent each man seuerallie and by himselfe, first for himselfe, & then for so many as he hath proxie. When the Chaunceller hath demaunded of them whether they will go to the question after the bill hath bin thrise read, they saying onely content or not content, without further reasoning or replying: and as the more number doth 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 or dissent by proxie. The more part of them that be present onely maketh the consent or dissent. After the bill hath bin 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 he holdeth the bill vp in his hand and saith, as manie as wil haue this bill go forwarde, which is concerning such a matter, say yea. Then they which allow the bill crie yea, and as manie as will not, say no: as the crie of yea or no is bigger, [Page] so the bill is allowed▪ or dashed. If it be a doubt which crie is the bigger, they diuide the house, the speaker saying, as many as do allow the bill goe downe with the bill, and as many as do not sit still. So they diuide themselues, and being so diuided they are numbred who make the more part, and so the bill doth spéed. It chaunceth sometime that some part of the bill is allowed, some other part hath much contrarietie and doubt made of it: and it is thought if it were amended it would goe forward. Then they choose certaine committees of them who haue spoken with the bil & against it, to amend it, and bring it in againe so amended, as they amongst them shall thinke méete: and this is before it is engrossed, yea & some time after. But ye 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 shal séeme good, notwithstanding that whatsoeuer the committees haue done.

Thus no bill is an act of Parliament, ordinaunce, or edict of lawe, vntill both the houses seuerally haue agréed vnto it after the order aforesaid, no nor then neither. But the last day of that parliament or session the Prince commeth in person in his Parliamēt 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 thankesgiuing first in the Lordes name by the Chauncelor &c. and in the commons name by the spaeker to the Prince, for that he 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 and ornament of the common wealth: the Chaunceller in the Princes name giueth thankes to the Lordes & cōmons for their paines and trauailes taken, which he saith the Prince wil remember [Page] and recompence when time and occasion shall serue, and that hee for his part is readie to declare his pleasure concerning their procéedinges, wherby ye same may haue perfect life & accomplishment by his Princely authoritie, & so haue the whole consent of the realme. Then one reades the Titles of euerie act which hath passed at that session, but onely in this fashion: An act concerning such a thing &c. It is marked there what the Prince doth allow, and to such hée saith: Le roy, or la Royne le veult. And those bee taken now as perfect lawes and ordinances of the realme of England and none other, and as shortly as may be put in print, except it be some priuate cause or law made for the benefit or preiudice of some priuate man, which the Romans were wont to call priuilegia, These be onely exemplified vnder the seale of the Parliament, and for the most part not printed. To those which the Prince liketh not, hee answereth, Le Roy or la Royne saduisera, and those be accounted vtterly dashed and of none effect.

This is the order and forme of the highest and most authenticall court of England, by vertue whereof all those thinges be established whereof I spake before, and no other meanes accounted auailable to make any new forfaiture of life, member, or landes of any English man, where there was no lawe ordained for it before. Now let vs speake of the said partes when they bée seuerall.

Of the Monarch, King or Queene of England. CHAP. 4.

THe Prince whom I now call (as I haue often before) the Monarch of England, King or Quéene, [Page] hath absolutely in his power the anctoritie 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 the aduice onely of his priuie Counsell. 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 manie as he shall thinke good, who doth consult daily, or when néede is of the weightie matters of the Realme, to giue therin to their Prince their best aduice they can. The Prince doth participate to them al, 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 secrete as he will, although these haue a particular oth of a counceller touching faith and secrets administred vnto them when they be first admitted into that companie. To that herein the kingdome of England is farre more absolute than either the Dukedome of Uenice is, or the kingdome of the Lacedemonians was. In warre time, and in the fielde the Prince hath also absolute power, so that his word is a law, he may put to death, or to other bodily punishment, whom he shall thinke so to deserue, without processe of lawe or forme of iudgement. This hath bin sometime vsed within the Realme before any open warre, in sudden insurrections and rebellions, but that not allowed of wise and graue men, who in that their iudgemment had consideration of the consequence and example, asmuch as of the present necessitie, especiallie, when by any meanes the punishment might haue bin done by order of lawe. This absolute power is called martial law, and euer was and necessarilie must bee vsed in all campes and hostes of men, where the time nor place do [Page] suffer the tarriance 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 strait obedience, without which neuer captaine can doe any thing vaileable in the warres.

The Prince vseth also absolute power in crying and decréeing the money of the Realme by his proclamation onely. The money is alwayes stamped with ye princes image and title. The form, fashion, maner, weight, finenesse and basenesse thereof, is at the discretion of the Prince. For whome should the people trust more in that matter than their Prince, seeing the coine is onelie to certifie the goodnesse of the mettall and the waight, which is affirmed by the Princes image and marke? But if the Prince will deceiue them, and geue thē copper for siluer or golde, or enhaunce his coyne more than it is woorth, he is deceiued himselfe, as well as hée doth goe about to deceiue his Subiectes. For in the same sort they pay the Prince his rents and customes. And in time they will make him pay ratablie or more for meate, drinke, and victualles for him and his, and for their labour: which experience doeth teach vs nowe in our dayes to bée done in all Regions. For there euer hath béen, and euer wil be a certaine proportiō betwéen the scarcitie and plentie of other things, with golde and siluer. For all other measures and weights, aswell of drie things as of wet, they haue accustomed to be established or altered by the parlement, and not by the princes proclamation onely.

The Prince vseth also to dispence with lawes made, whereas equitie requireth a moderation to be had, and with paines for transgression of Lawes, where the payne of the Lawe is applyed only to the Prince. But where the forfaite (as in popular actions it chaunceth [Page] 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 giueth absolution or pardon, yet with a clause, modo stet 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 offender.

The prince giueth all the cheife 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 bée exempt.

All writtes, executions and commaundements, bée done in the Princes name. We doe say in England, the life and member of the kings Subiectes are the kinges onely, that is to say, no man hath hault nor moyenne iustice but the king, nor can holde plea thereof. And therefore all those pleas which touch the life or the mutilation of man, be called pleas of the crowne, nor can be done in the name of any inferior person than he or she that holdeth the Crowne of England. And like wise no man can geue pardon thereof but the Prince onely: although in times past there were certaine Countie Palatines, as Chester, Durham, and Elie, which were hault Justicers, and writtes went in their name, and also some Lorde Marchers of Wales, which claymed like priuiledge: al these are now worn away. The supreme iustice is done in the kings name, and by his authoritie onely.

[Page]The Prince hath the wardshippe and first marriage of all those that holde lande of him in chiefe. And also the gouernment of all fooles naturall, or such as be mad by aduenture of sicknesse, and so continue, if they be landed. This being once grounded by acte of Parlement (although some inconuenience hath béene thought to growe thereof, and since that time it hath béene thought very vnreasonable) yet once annexed to the crown, who ought to goe about to take the club out of Hercules hand? And being gouerned iustly and rightly, I sée not so much inconuenience in it, as some men would make of it: diuers other rights and preheminences the prince hath, which be called prerogatiues royals, or the prerogatiue of the king, which he 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 things that be done in the realme of England. And to no prince is done more honor & reuerence, than to the king and Quéene of England: no man speaketh to the prince, nor serueth at the table, but in adoration and knéeling, all persons of the realme be bare headed before him: in so much that in the chamber of presence where the cloath of estate is set, no mā dare walk, yea though the prince be not there, no man dare tarrie there but bareheaded. This is vnderstoode of the subiects of the realm, for all strangers be suffered there and in all places to vse the maner of their Countrey: such is the ciuilitie of our Nation.

The chiefe points wherein one Common wealth doeth differ from another. CHAP. 5.

NOw that we haue spoken of the Parlement (which is the whole, vniuersall, and generall consent and [Page] authority aswel of the prince, as of the nobilitie & commons, that is to say, of the whole head and body of the realm of England) and also of the prince, (which is the head, life and gouerner of this commonwealth:) there remayneth to shew, how this head doeth distribute his authoritie and power to the rest of the members for the gouernment of his realm, and the common wealth of the politike body of England. And whereas all commonwealths and gouernmēts be most occupied, and be most diuers in the fashion of fiue things: In making of lawes and ordinances, for their owne gouernment: in making of battell and peace, or truce with forraine nations, in prouiding of money for the maintenance of themselues within themselues, and defence of themselues against their enemies, in choosing and election of the chiefe officers and magistrates: and fistly, in the administration of iustice. The first and third we haue shewed is done by ye prince in parlement. The second and fourth by ye prince himselfe▪ the fift remayneth to be declared.

Of three maners and formes of trialles or iudgements in England. CHAP. 6.

BY order and vsage of England there be thrée waies & maners whereby absolute and definite iudgement is geuen; by parlement, which is the highest and most absolute; by battle, and by the great assise.

Triall or iudgement by Parlement. CHAP. 7.

THe maner of geuing iudgement by Parlement betweene priuate and priuate men, or betweene the [Page] Prince and any priuate man, be it in matters criminall or ciuill, for land or for heritage, doth not differ from the order which I haue prescribed, but it procéedeth by bill thrise read in each house, and assented to as I haue saide before, and at the last day confirmed and allowed by the prince. Howbeit such billes be seldome receiued, because that great counsell being inough occupied with the publique affaires of the Realme, wil not gladly intermedle it selfe with priuate quarels and questions.

Triall of iudgement by battle. CHAP. 8.

THis is at this time not much vsed, partly because of long time the Pope and the clergy, to whom in time past we were much subiect, alwayes cryed against it as a thing damnable and vnlawfull: and partly because in all common wealths, as to the tongue, so to the maners fashions, habites, yea and kinds of trials & iudgements, and to all other things that is therein vsed, time & space of yeares bringeth a change. But I could not yet learn that it was euer abrogated. So that it remaineth in force, whensoeuer it be demaunded. The maner of it is described in Briton.

The triall by assise or twelue men, and first of the three partes which be necessarie in iudgement. CHAP. 9.

THe two first iudgements be absolute, supreme and without appeale, and so is also the iudgement by the great assise. And because our maner of iudgements in England is in may things different from the fashion [Page] vsed either in France or in Italie, or in any other place the Emperors lawes and constitutions (called the ciuill lawes) be put in vse, it will be necessarie here to make a little digression, to the intent, that that which shalbe said hereafter, may be better vnderstoode. All pursuites and actions (wee call them in our Englishe tongue pleas) and in barbarous (but now vsuall) latine, placita, taking that name abusiue of the definitiue sentēce, which may wel be called placitum, or [...]. The French vseth the same, calling in their language, the sentence of their iudges areste or arest: in which words notwithstanding after their custome they do not sound the s. But we call placitum the action, not the sentence, and placitare barbarously, for to plead in English, agere, or litigare. Now in all iudgements being two parties, the first wee call the impleader, suiter, demaunder or demaundant, and plaintiffe. In criminal causes, if he professe to be an accuser, we call him appellant, or appellour, and so, accusation we cal appeale. The other we cal the defendant, and in criminall causes, prisoner, for he cannot answere in causes criminall before he doe render himselfe, or be rendered prisoner.

Iudex, is of vs called Judge, but our fashion is so diners, that they which geue the deadly stroke, and either condemne or acquite the man for guiltie or not guiltie, are not called Judges, but the twelue mē. And the same order aswell is in ciuill matters and pecuniarie, as in matters criminall.

Of pleas or actions. CHAP. 10.

PLeas or Actions criminall be in English called pleas of the crowne, which be all those which tende to take [Page] away a mans life or any member of him, for his euil deseruing against the prince and commonwealth.

And this name is geuen 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 Subiects is spoyled either of life or member, the Prince is endammaged thereby, & hath good cause to aske account how his Subiectes shoulde come to that mischiefe. And againe, for so much as the Prince who gouerneth the scepter, and holdeth ye crown of England, hath this in his care and charge, to sée the Realme well gouerned, the life, members and possessions of his Subiects kept in peace and assurance: he thatSauing in appeals, and vpō a speciall plea. Actio, is the parties whole suite: Breue, is the kings precept. by violence shall attempt to breake that peace and assurance, hath forfaited against the Scepter and crowne of Englande: and therefore not without a cause in all inquisitions and indictments, if any be found by the xij. men to haue offended in that behalfe, straight the prince is said to be partie, and he that shall speake for the Prisoner shall be rebuked, as speaking against the prince. Neuerthelesse, it is neuer defended, but the prisoner, and partie defendant, in any cause may alledge for him all the reasons, meanes, and defences that hée can, & shall be peaceablie heard and quietly. But in those pleas and pursuites of the Crowne, Procuror or Aduocate hée gets none, which in ciuill and pecuniarie matters (bée it for lande, rent, right, or possession, although he pleade against the Prince him selfe) he is neuer denied.

Pleas ciuill be either personall or reall: personal, as contracts or for iniuries: reall, be either possessorie, to aske, or to kéep the possession: or in rem, which we call a writte of right. For that which in the ciuill law is called actio, or formula, we call writte in English: so the Gréekes called it worde for word [...] and in our barbarous [Page] 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 England we retaine still this and haue some writtes out of the Chauncerie, other out of the common pleas, or the kings bench.

Of the chiefe Tribunals, Benches, or Courts of England. CHAP. 11.

IN times past (as may appeare to him that shall with iudgement reade the Histories and antiquities of Englande) the courtes and benches followed the king and his Court wheresoeuer he went, especially shortly after the conquest. Which thing being found very cumber some, painfull, and chargeable to the people, it was agréed by Parlement that there shoulde be a standing place where iudgement should be geuen. And it hath long time béene vsed in Westminster hall, which king William Rufus buylded for the hall of his owne house. In that hall be ordinarily séen thrée Tribunals, or Judges seates. At the entrie on the right hand the common pleas, where ciuill matters are to be pleaded, speciallie such as touch lands or contractes. At the vpper ende of the hall, on the right hand, the kings bench, where pleas of the crowne haue their place. And on the lefte hande sitteth the Chancellor accompanied with the master of the Rolles, who in latin may be called custos archiuorum Regis, and certaine men learned in the ciuill law▪ called Masters of the Chauncery, in Latin they may be called Assessores.

[Page]

Of the times of pleading called Termes & of the Chauncellor and Chauncerie. CHAP. 12.

TWo thinges may be moued in question here, how all England▪ (being so long and so large, and hauing so many shires and prouinces therein) can be answered of iustice in one place, and in 3. benches, be they neuer so great? Another (whereas the Kinges Bench is exercised in criminall causes, and in all pleas of the crowne, and the common place in all ciuil causes, real, and personal) what place then hath the Chauncerie?

The first question will séeme more marueilous, and haue more occasion of doubt, when I shall also tell that the Law is not open at all times, no not the third part of the yeare. But where all other: Cities and common 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 four 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 and od daies. 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 verie iniurious to the people, who must be faine to suffer much wrong for lacke of Justice and of place and time to pleade: but vnto [Page] that hereafter I intend to answere more fully, and in the meane while that shal suffice 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 plaintifs and defendantes that were there might pleade their matters more at ease, and not bee in so much danger of their health by the heate of the Sunne striking full and open vppon their heads, which was no small griefe and disease, specially at Rome. Nay (saith Cato) for my part I had rather wish that al 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 pricks in going thither as their heads do of the Sunne in tarrying there: hée meant that they were but idle, whot heads, busie bodies, and troublesome men in the Common wealth that did so nourish pleading: good labourers and quiet men could be content to ende their matters at home by iudgement of their neighbours and kinsfolke without spending so their money vppon Procurers and Aduocates whom wee call Atturneis, Counsellers, Sergeantes, and generallye men of lawe. Those he accounted profitable citizens, who attend their honest labour and busines at home, and stande not waiting and gaping vpon their Rolles and processe in the law: as for the other, by his iudgement, it was no matter what mischiefe they suffered. To the other question of the chancerie, this I answer: That our lawe which is called of vs the common law, as yée would say Ius ciuile, is and standeth vppon [...], that is Ius summum: and their maximees be taken so straitly that they may not depart from the tenour of the wordes, euen as the old ciuill lawe was. And therefore as that lacked the helpe of a Pretor (which might moderari illud ius summum, giue actions where [Page] none was, mitigate the exactnes and rigoure of the law written, giue 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 herein as had the Pretor in the olde ciuill lawe 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 he 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 Chauncelor 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 England is not vsed, but the forme of pleading by writing, which is vsed in other countries according to the ciuil law: and the triall is not by xij. men, but by the examination of witnes as in other courtes of the ciuill law.

Out of this Court, as from the person of the Prince come all maner of originall writtes. The declaration of writtes is at large set down in the register of writs, and in the Natura breuium. Out of this Court come most commonly Commissions, Patentes, Licences, Inquisitions, &c.

The Judges of this Court are the Lord Chauncellor of England, Assistants, the maister of the Rolles, and six Maisters of the Chauncerie, which are commonlie Doctors of the ciuill law.

Officers are the sixe Clarkes of the Chauncerie, the [Page] Clark of the Crowne general, the Register, the Comptroller of the Seale, two examiners, the Clarke of the hampier, the thrée Clarkes of the pettie bagge; the Cursiters, the Sergeant of the mace.

The Lord Chauncelor is the keper of the great Seale, and hath it carried with him whersoeuer he goeth.

The Maister of the Rolles is the kéeper of the Recordes, Judgementes and sentences giuen in the court of Chauncery.

The sixe Maisters are assistantes to the court, to shew what is the equitie of the ciuil law, and what is Conscience.

The Clarke of the Crowne is the chiefe Guardian of all the matters of the Crowne: what are Crowne matters and pleas of the Crowne, sée in the learned booke of Stanford, called the Pleas of the Crowne.

The sixe Clarkes are the Atturneis aswell for the Plaintiffe, as Defendant in euerie suite in this Court.

The Register is the engrosser and kéeper of the decrées, publications orders and iniunctions issuing out of this court.

The two Examiners are such as take the examination of the witnesses brought to proue or reproue any thing suite in this Court, and to put their depositions & answers made to their interrogatories in writing.

The Comptroller of the Seale is to see and allow of all the writtes made in this court.

The Clarke of the Hamper is he that doth receaue the fines due for euery writ sealed in this Court.

The thrée Clarkes of the Petie bagge are they that receaue the offices that are founde in the Courte of Wardes.

The Cursiters are Clarkes appointed to their seuerall shires which do write original writtes that belong to this Court, or the Common place.

[Page]The Sergeant carrieth the Mace before the Lord Chauncellor, and is to call any man before him at his commaundement.

The Processe in the Chauncerie is a Sub paena, which is but to cal the partie before him vpon a paine, as vpon paine of lx. l. &c. And this is the way vsed to bring in the partie, or else by the Sergeant as before.

The punishment is, if the partie will not come in, or comming in, wil not obey the order of the Court, imprisonment during the pleasure of the Lord Chauncellor.

The order of procéeding is by Iniuuctions, decrées & orders which are to binde the partie, and if he resistt his punishment is imprisonment.

The matters in this court are all causes wherin equitie and extremitie of law do striue, and where the rigoure of lawes haue no remedie, but conscience and the moderation of Summumius hath sufficient.

And here is to be noted, that conscience is so regarded in this court, that the lawes are not neglected, but they must both ioine and méete in a third, that is in a moderation of extremitie.

The Court is called of some Officina Iuris Ciuilis Anglorum, because out of this Court issue al maner of processe which giue the partie his cause of action in other Courtes.

Of Iudges in the common Lavve of England, and the manner of triall and pleading there. CHAP. 13.

THe Prince out of the numbers of those who haue bin Counsellors or Sergeantes at the Law, which [Page] bee those who in Latin are called causidici or aduocati, chooseth two of the most approoued for learning, age, discretion and excercise, of whom the one is called chiefe Justice of the Kinges bench, or simplie chiefe Justice, the other, chiefe Justice 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 do sitte at such daies as be terme, which may be called Dies legitimi iuriditi, or fasti, in their distinct places, as I haue said before. There they heare the pleading of all matters which do 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 the other, it doth so procéede before them till it do come to the issue, which the Latines do call statum causae, I do not meane contestationem litis, but as the Rhetoritians do call statum, wee do most properlie call it the issue, for there is the place where the debate and strife remaineth (as a water held in a close and darke vessell issueth out, is voided and emptied) and no where else: that stroke well striken is the the departing of all the quarrels. Issues or status in our Lawe be ordinarily two, facti and iuris.

Of the Kinges Bench. CHAP. 13.

THe Kinges Bench is the Kings court, so called because vsually the Kinges haue sitten there, and also because that therein are all causes handled which appertaine to the Crowne: and such causes as wherein the King or Quéene is a partie, if they properly apperteine not to some other court.

[Page]The Judges of the Kinges Bench are the Lorde chiefe Justice of Englande, with other his companions assistant in giuing iudgement.

The Sergeantes and Counsellors do debate the cause.

The sentence is giuen by the chiefe Justice, the others all or the most part assenting, as it shall appeare to bee in other Courtes likewise. If they can not agrée, then is the matter referred to a demurre in the Exchequer chamber before all the Justices of both the benches, viz. the Kinges Bench, and the common pleas, and the Lord chiefe Barron of the Exchequer.

The officers in the Kings Bench are, the chiefe Protonotharie, the Secondarie, the Clarke of the Crowne, the Clarke of the Exigentes, the Clarke of the Papers, the Custos Breuium, and Custos Sigilli.

The Protonotharie is hée, that recordeth all iudgementes, orders, and rules in this court, and all verdicts giuen, being not of Crowne matters.

The Secondarie is the Protonotharies deputie, for the said causes, and hée is the kéeper and maker vp of these recordes in bookes.

The Clarke of ye Crown, is to frame al inditements offelonie, treason, murther, &c. all maner of appeales, and after to record them, and enter the verdicte, and to make and kéepe the Recordes touching these matters.

The Clarke of the Exigentes is to frame all maner of Processes of Exigi facias, which do issue out of that Court to outlawe any man, and to recorde the outlawry.

The Clarke of the Papers is hée that kéepeth al rolles, scriptes, and pleadinges, and other thinges in writing which are not of record.

The Custos breuium is he which fileth all the writs [Page] indiciall and originall, after the Sherife hath returned them, he is chargeable if any be embeseled or priuily conueied away from the file.

The Custos Sigilli is hee that doth kéepe the Seale, and seeketh all iudiciall writtes, and all Patentes, lycenses issuing out of this Court, and taketh the fée due for them, and thereof is to make his acccompt.

There are certaine Atturneis belonging to this Court in number as the Protonothorie shall appoint: those are for Plaintifs and defendantes in euery cause, and they frame and make the pleadinges.

The maner of procéeding in this court is by Latitat, arrest, and Bill.

The Latitat is to bring the partie in when hée is not to be found, or will not appeare and answere.

Arrest is when the partie is arrested, and then is driuen to fynde bayle. viz. two sufficient sureties or more as the case shall néede.

By Bill the suite is when the partie is in Custodia Mareschalli and is from thence brought to answere.

The Matters in this Court are properly all matters of the Crowne, whereof sée Stanfordes booke aforesaide.

In these they procéede by Inditementes, verdict, appeale, Improperly all suites wherein the King is a partie, or may haue any losse. Such are Conspiracies, Champarties, Imbrasier, Maintenance, Decies tantum maymes, Slanders, actions sur le cas: of these sée Natura breuium.

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Of the court of common pleas. CHAP. 14.

THe court of common pleas is the kings court, wherein are holden all common pleas betwéene Subiect & Subiect, of all matters of Common law: so called, for that it serueth for the exact and precise administration of the common law.

The Judges in this Court are, Lord chiefe Justice of the common pleas, thrée other his associates. The Sergeāt at the law, whose number is sometime more, sometimes lesse, at the pleasure of the prince. These all are sworne to serue the turn of the common law at this barre.

Two of them are alwayes appoynted to serue the Princes turne in what Court soeuer, and are called the Q. Sergeants.

The officers of this Court are the Custos Breuiū, thrée Protonotharies, the Clarke of the warrants, the Clarke of the Essoynes, diuers Atturneyes, Fillisers for euery shire, Exigenters for euery shire, the Clark of the Juries, the Cirographer for fines, the Clarke of the Quéenes siluer for errors in this Court committed, the Clarke of the seale, as before for the kings bench.

The Custos breuium is chiefe Clarke in the court, and he hath the custodie of all the writtes whatsoeuer, returnable into this court, come they in either at the day of the returne, or after the day, which is called Post diem.

The Protonotharies are they which after the parties haue appeared in Court, doe enter the matters in suite, and make the pleadings, and enter them.

The Fillisers are they which make vp all meane [Page] proces vpon the original writtes, and the same writtes returned by the sherife, are by the atturneyes deliuered to the Custos breuium to file or string, there to remain of record.

The Exigenters are such as make out the exigents and writs of proclamation into euery Countie, where the parties are, that vpō the measne proces or summōs will not appeare.

The Clarke of the warrants is he which dooth take the warrants of an Atturney, which shall prosecute for the plaintife or defendant: and is he that enrolleth all déedes acknowledged before the Justices of the same Court.

The Clarke of the Essoynes is hee which doeth essoyne the defendants in euery action, before the day of his appearance.

An essoyne is an ordinarie delay by office of Court in action: and the officer before whom the Clarke is to take these essoines, is the puny Justice in the common pleas, who for that purpose sitteth thrée dayes before the Tearme.

The common Atturneyes are such as are allowed in this Court by the Lorde chiefe Justice of the common pleas, and his assistance, to prosecute or defend according to the instructions of their Clients, for the plaintife or defendant.

The Clarke of the iuries is he that doeth make the Venire facias, to the sherife to warne the Juries by.

The Cirographer is he that hath the writte of couenant with the concord brought vnto him, and he maketh Indentures tripartite, whereof two are deliuered to the partie for whose vse the fine is acknowledged. And the third part is reserued with him. And all the proclamations of the same fine, according to the statutes made, are endorced on the third part remayning, and it is commonly [Page] called the foote of the fine.

The Clarke of the Quéenes siluer is a distinct Office of the fines, and is he who setteth downe the money that her Maiestie is to haue for the fine, according to the yerely value of the land confessed, knowen, deposed, or agréed vpon.

All errors in this court committed, are reformed in the kings bench, before the Lord chiefe Justice, & other Justices there assistant, by writte of error.

There is also the Clarke of the outlawries, who is the kings Atturney generall, and hee entereth the outlawrie for the Quéene, after the exigent deliuered: and he maketh all the writtes of outlawrie, and none are to be made but by him.

The matters of the common pleas are all suites of common law commenced by any writte, originall, real, or personall.

Reall are such as touch the inheritance, or fée of any man.

Personal are such as touch trāsitory things, as goods, chattels, personall wrongs, &c.

The difference betwéene a writte originall, and a writte iudiciall, is this: the originall saith in the ende of it (in the person of the king or Quéene) teste meipso, or meipsa, apud Westmonasterium. The iudiciall writte saith in the end, Teste Christophoro Wray, or Teste Iacobo Dier, or such other as shalbe Lord chief Justice of either of those benches.

The order of processes how they follow the one after the other. In this court is first a summoneas in some action, then an Attachias, but in most a Capias, then a Capias pluries then Exigi facies, and a proclamation into the Countie where the defendant dwelleth.

The Summoneas is the original, and goeth out of the Chancerie, and is directed to the sherife, to bring the [Page] partie by a day.

The sherifes order in seruing this writte, is to goe himselfe, or his Baylife, to the land, and there to garnish the partie, by sticking vp a sticke on his land, which done, the sherife returneth two common pledges, Iohā nes Do, and Richardus Ro, and two Summonees, Richardus Den, Henricus Fen. After the summonees, if the partie come not in, issueth out an Attacheas, in nature of a precept, to authorize the sherife to goe to his land or house, and there to take a pledge for his apparance.

But if the partie plaintife meane to outlaw the defendant, he getteth a Summoneas out of the Chancery to the sherife to warne the party, who returneth nihil habet, &c. Then the plaintife getteth a Capias to take his bodie, and then a Lias capias, then a pluries capias, to all which the sherife returneth in order as they be geuen out, Non est inuentus. After which if the party appeare not, goeth out to the sherife the Exigi facias, and a proclamation to proclayme the partie in fiue seuerall Countie dayes: after which proclamations if he do not appeare, he is returned Quinto exactus, & non comparuit, & ideo vtlagatu, vnlesse he doe first purchase a Supersedeas, to the Court to surcease. The Supersedeas is graunted at the suite of the plaintife, to stay the outlawrie, and is an apparance to the suite, for the defendant suggesting to the court, that his erigēt improuide emanavit, shewing that the defendant was alwayes readie to appeare by his Atturney. This done, the plaintise declareth the defendant answereth, if the answere be issuable they procéede to triall. The maner of procéeding is either to ioyn issue, & so to passe to verdict, or els to demurre. The triall is by verdict, when the question is made de facto, as, where the matter was done, when, by whom, &c.

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Of the two maner of issues. CHAP. 15.

IF the question be of the lawe, that is, if both the parties doe agrée vpon the fact, and ech doe claime that by lawe hee ought to haue it, and wil still in that sorte maintaine their right, then it was called a demurrerBut somtimes it is determined by the same court onely. in law: where if in the law the case séeme to the Judges that sitte, doubtfull, it is called a checker chamber case, and all the Judges will méete together, and what they shall pronounce to be the lawe, that is held for right, and the other partie looseth his action or lande for euer. If the Sergeants or Counsellers doe stande vpon any point in the law which is not so doubtfull, the JudgesThis shoulde be meant of a respondes ouster, when the opinion is against him that taketh an exception which is not peremptorie. He may deny it by protestation. who be taken for most expert, biddes him goe forwarde, and if hée hath no other to say, but standeth vpon that point of the law, that bidding goe forwarde is taken that hée 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 law is not doubtfull, according to the matter contayned in the declaration, answere, replication, reioynder, or triplication, the Judge out of hand decideth it. And it is the maner that ethe partie must agrée to the other stil in ye fact which he cannot deny. For if he once come to deny any déede as not done, not his wryting, that the man by whom the aduersarie claymeth, was not the aduersaries auncestor, or the euidence which his aduersarie bringeth is not true, or that his gifte was former, or any such like exception which is auailable to abate the action, or barre the partie: and the other ioyneth in the affirmatiue, and will auerre and prooue the same, this is called the issue, and immediatly [Page] [...] [Page] [...] [Page] all question of the law ceaseth, as agréed by both the parties, that there is no question in the law. Thē as that issue facti is found by the twelue men of whom we shal speake hereafter, so the one partie or other loseth his cause and action: so that contrarie to the maner of the ciuill law, where first the fact is examined by witnesses indices, torments, and such like probations, to finde out the trueth thereof, and that done, the aduocates doe dispute of the law, to make of it what they can: saying, exfacto ius oritur Here the Sergeants or Counsellers before the Judges doe in passing forward with their pleading determine and agrée vpon the law, and for the most part, and in maner all actions, aswell criminall as ciuill, come to the issue and state of some fact which is deniedof the one partie, and auerred of the other: which fact being tried by the twelue men, as they finde, so the action is woon or lost. And if a man haue many peremptory exceptions (peremptorie exceptiōs I call only those which can make the state and issue) because the twelue men be commonly rude and ignorant, the party shalbe compelled to choose one exception whereupon to founde his issue, which chosen, if he faile in that by the verdicte of twelue men, he loseth his action and cause, and the rest can serue him for nothing.

Hauing séen both in France and other places many deuyses, edicts and ordinances, how to abridge processe, and to finde how that long suites in law might be made shorter, I haue not perceiued nor read 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 bée so easilie vnderstood, and therefore they may peraduenture be of contrarie iudgement: but the more they doe weigh & cōsider it, the more reasonable they shall find it.

[Page]How the issue, question, or status iuris is decided, I haue tolde: now I wil shew how it is tried whē it doth come to the question, stats, or issue of the déede or fact. And first I must speake more largely of the maner of procéeding in the processe, and of such persons as be necessarie for the execution thereof.

Of the sherife of the shire, and of the Court of Exchequer. CHAP. 16.

THe Romanes had to execute the commandements of the magistrates, Lictores, Viatores, Accensos. The ciuill law since that time hath other names, termes, and officers. The execution of the commaundements of the magistrates in England, is ordinarily done by the sherifes. The sherife (which is as much to say as the Réeue or Baylie of the shire) is properly word for word QuestorScats in auncient Saxon is that which we by a borowed terme call tresure, wherof is deriued Scaccariū signifying a court dealing with the kinges treasure or reuenues, & also escaetor that is an officer which imploieth the kinges profit.prouinciae, it is he which gathereth vp, and accounteth for the profites 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 think that it was first called statarium, because that there was the stable place to account for the reuenues of the crowne, aswell ye which came of the patrimonie, which we call the demeasnes, as that which commeth of other incident acquisitions, be they rents, customes, tenths, quinziesmes, taxes, subsidies, wheresoeuer the Prince or his Court be, according to the time and occasion) was a place stable, continuall, and appointed for to recken and account. The hearers of the account (who in Latin may be called tribuni aerarii) haue Auditors vnder them, which the Latines doe call Rationales, but they are the chiefe for the [Page] accounts of the prince, and may be called iuridici rationales, in English we call them Barons of ye Exchequer, whereof is one who is called the chiefe Baron, as Tribunus, or Iuridicus rationalis primus, or princeps, with others to thē assistant: the Chanceller of the Exchequer, two Chamberlaines, and Atturney generall. The chéef of all is called high treasurer of England, as you would say in latin, Supremus aerarii anglici quaestot, or Tribunus aerarius maximus.

He hath the charge and kéeping of the king or Quéenes treasure, and many officers are at his sole appointment and to him accountant, as wel in the tower, exchequer, as elswhere: as, Auditors in the mint, Auditors and tellers in the Exchequer, Receiuers, &c.

The Chanceller is the vnder treasurer, and is gouerner of the Court, vnder the high treasorer. Many officers also are at his appointment.

The chiefe Baron is the iudge in law cases incident to this Court, the thrée other Barons are assistants.

The Atturney is the atturney generall, to defend the Quéenes right, and to peruse all grauntes, particulars, suites, and causes handled in this Court. There are common atturneis besides, which serue for the suiters of this Court.

The other Officers are two Remembrancers, two Clarkes of the Pipe, two of the first fruites and tenthes.

The Remembrancers are those which kéepe all the Recdrdes of the Exchequer betwéene the Quéene and her subiectes, and enter the Rules & orders there made, the one is for the Prince, the other for the Lord Treasurer.

The Clarkes of the Pype are those that make leases vpon particulars, and receiue, the Shirifes accomptes, those receaue also the bondes & titles of other assurances

In the office of the first fruites are receaued all first [Page] fruites due to her Maiestie by Bishoppes, Deanes, and all ecclesiasticall persons, answerable by order of the Law.

Other officers are Tellers, Auditors, Collectors, rent gatherers, taile makers, &c.

The matters of this court are all penall punishmēt, as intrusions, alienations without license, penall forfeitures vpon popular actions (a popular action is while the one part is giuen to the informer, the rest to the Prince.) Of these sée the whole bodie of the Statutes at large, or in Rastalles collection.

In this Court are handled all paymentes, accompts, expences of the Quéenes renenues.

The vsuall Processe of this Court is a Sub paena out of this Courte, or a messenger to call the partie.

In this court be heard Quadruplatores, which wee call promoters, which be those that in popular and penall actiōs be delatores, hauing thereby part of the profit by the law assigned. In this court if any question be, it is determined after the order of the common law of England by the twelue men, as I haue said: and al customers which were in Latine called Publicani, in Gréeke [...] doe account in this office.

The sherife of the shire is called in our common Latine Vicecomes, as one would say, vicarius comitis, or procomes, doing that seruice, to attend vpon the execution of the commaundements of the Tribunals or iudges, which the Earle or Countie should doe: which Earle or Countie for the most part was attēding vpon the prince in the warres, or otherwise about the prince, as ye worde beareth, comes principis: whereby it may appeare, that the chiefe office of the Countie or Earle, was to sée the Kings iustice to haue course, and to be well executed in the shire or Countie, and the Princes reuenues well answered, and brought in aerarium Principis, which is [Page] called of vs the treasurie.

If any fines or amerciaments, which in latine bée called mulctae, be leuied in any of the said Courts vpon any man, or any arrerages of accounts by the latines called reliqua, of such things as is of customes, taxes, subsidies, or any other such occasions, the same the sherife of the shire doeth gather, and is respondent therfore in the Exchequer. As for other ordinarie rents of patrimoniall lands, and most commonly for the taxes, customes and subsidies, there be particular receiuers and collectors, which do answere it into the Exchequer. The sherife hath vnder him an vnder sherife at his charge and appointment, learned somewhat in the lawe, especially if he be not learned himselfe, and diuers bailifes which be called errants, whom he maketh at his pleasure, who can knowe each land and person in the shire, and their abilitie to goe vpon enquestes, either to distraine, or to summon him to appeare whom the Sherife shall 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 whome 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 shirife. 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 Justices of peace [Page] in their quarter sessions as the Justices 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 ciuill depending at the common law, and which be come nowe to the issue. He hath also the charge of all the prisoners cōmitted to the prison which we call the goale, 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 execution of such commaundementes according to the lawe as the Judges doe ordaine, and this is ynough for the sherife.

Of the xij men. CHAP. 17.

OF what manner and order of men in the common welth the xij men be I haue already 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 xij. men, as a man would say duodecim viri, yet if they be xvi. 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 triall by xij. men. In actions ciuill which is either of contractes or for land, or possession when so many of those which be warned appeare at the call as be able to make an enquest, which as I said before be no lesse then xij, 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, [Page] he is his enemie, &c. And two of the whole number doe trie, and allow or disalow the rest.

If after exceptions there bee 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 full, they be sworne to declare the trueth of that issue, according to the euidence and their consciēce. Then the Sergeants of either side declare the issue, and each for his clyent saith as much as he can. Euidences of writings be shewed, witnesses be sworne, and heard before them, not after the fashion of the ciuill law, but openly, that not onely the twelue, but the Judges, ye parties, and as many as be present may heare what each witnesse doeth say: The aduerse partie, or his aduocats which we call Counsellers and Sergeants, interrogateth sometime the witnesses, and driueth them out of countenance.

Although this may séeme strange to our Ciuilians now, yet who readeth Cicero and Quintilian, well shall sée, that there was no other order and maner of examining witnesses, or deposing, among the Romanes in their time. When it is thought that it is inough pleaded before them, and the witnesses haue said what they can, one of the Judges with a briefe and pithie recapitulation, reciteth to the twelue in summe the argumēts of the Sergeants of either side, that which the witnesses haue declared, & the chiefe points of the euidence shewed in writing, and once againe putteth them in minde of the issue, and sometime geueth it them in writing, deliuering to them the euidence which is shewed on either part, if any be, (euidence here is called writinges of contractes autenticall, after the maner of Englande, that is to say, written, sealed, and deliuered) and biddeth them goe together.

Then there is a Baylife charged with them, to kéepe [Page] 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 verdict concerning the same issue, and vpon one among them, who shall speake for them all when they be agréed: for it goeth not by the most parte, but each man must agrée. They returne, and in so fewe words as may be, they geue their determination: fewe I call sixe, seuen, or eight wordes at the most, (for commonly the issue is brought so narrow, that such number of words may be inough to affirme or to deny it,) which done, they are dismissed to goe whether they will. The partie with whom they haue geuen their sentence, geueth 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 where they geue their verdict all, the rest is of their owne charge. And necessarily all the whole xij. must be of the shire, and iiij. of them of ye hundred where the land lieth which is in controuersie, or where the partie dwelleth who is the defendant.

Of parties of Shires called Hundreds, Lathes, Rapes, Wapentakes. CHAP. 18.

AN Hundred, or Lath, Rape, or Wapentake, be called of the diuisions or parts of shires in diuers countreys diuerslie named, after the maner and language of each Countrey. For the shires be deuided, some into x. xij. xiij. xvj. xx. or xxx. Hundreds, more or lesse, either that they were at the first C. Townes and Uillages in each hundred: and although now they be but xvj. xx. xxx. xl. l. lx. more or lesse, yet it is still called an hundred, or els there were but so many at the first as be now, or a [Page] fewe more or lesse, and they did finde the King to his warres an hundreth 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 old English a Lath. Or that they mette at commaundement of the Lord to reape his corne.

Wapentake I suppose came of the Danes, or peraduentureOr as some say, because in such places the subiects had their armour appointed them, and there did take their weapons. of the Saxons. For that so many townes came by their orders then, to one place, where was taken a muster of their armour & weapons, in which place from them that could not finde sufficient pledges for their good abearing, their weapons were takē away: weapen or wapen in old English do signifie all armes offensiue, as sword, dagger, speare, launce, bill, bowes, arrowes.

Of the place where the musters were taken, or where the saide seruices were done, 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 now in places whereof the hundred hath the name, no mention nor memore of a Towne remaineth: such mutation time bringeth with it of all who things A hundreth hath one or two high cōstables, hath some authoritie ouer all the lower and particular Constables. Those high Constables bee made by the Justices of the peace of the shire, and each hundred hath his bailife, who is made by the Lord, if any hath that libertie, or else by the shirife of the shire for the time being.

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Of the court Baron. CHAP. 19.

IT may appeare strange that of xxxvi. shires, whereof each shire is diuided into diuerse 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 that there should be much lack of Justice and right, and much wrong takē without redresse. But it is not so: The people beyng accustomed to liue in such an equalitie of Justice, and that in such sort that the rich hath no more aduantage therein than the poore, the proces, and procéedinges to the iudgement beyng so short, and iudgementes also beyng peremptorie and without appellation: Yet to helpe for small matters, where no great summe is in question there are other courtes. In euery shire from thrée wéekes to thrée wéekes, the sherife for small thinges not passing xl. s̄. and in certaine hundreds and liberties the bailie likewise from thrée wéekes to thrée wéekes holdeth plea. And whosoeuer 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 tenauntes a court cslled a court Baron. And there his tenauntes beyng sworne make a Jurie which is not called the enquest, but the homage. These princip allie doe enquire of the copie holders, and other frée holders that be dead since the last court, and bring in their heires, and next successours, and likewise of incrochment or intrusion of any of the tenauntes against the Lorde, or among themselues. They make orders and lawes amongest [Page] themselues, the paine of them if they be after broken, commeth to the Lord. And if any small matter be in cō trouersie, it is put to them, and commonly they doe ende it. But these courts doe serue rather for men that can be content to be ordered by their neighbors and which loue their quiet and profit in their husbandrie, more than to be busie in the law. For whether party soeuer wil, may procure a writte out of the higher Court, to remoue the plea to Westminster.

In cities and other great townes there be diuers liberties to holde plea for a bigger summe, which doe determine as wel as the common law, and after the same maner, and yet for them that wil, it may be remoued to Westminster hall.

King Henrie the eight ordeyned first a President, Counsellers and Judges, one for the Marches of Wales, at Ludlow, or elswhere: another for the North parts of England, at Yorke, where be many causes determined. These two are as be Parlements in Frāce. But yet if there be any matters of great consequence, the partie may moue it at the first, or remoue it afterwardes to Westminster Hall, and to the ordinarie Judges of the Realme, or to the Chaunceller, as the matter is.

These two Courts doe heare matters before them, part after the common law of England, and part after the fashion of the Chauncerie.

Of the Leete, or Law day. CHAP. 20.

LEete, or Law day is not incident to euery Mannor, but to those onely which by speciall graunt, or long prescription, haue such libertie. This was, as it may [Page] appears first a special trust and confidence and commission giuen to a fewe put in trust by the Prince, as is now to the Justices of peace, to sée men sworne to the Prince, to take pledges and suerties in that manner of one for another 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 manor and Lordship, bee neuerthelesse astreined and answerable to come to the Léete. This Léete is ordinarily kept but twice in the yeare, and that at termes and times prescribed.

The Léete and Law day is al one, and betokeneth word for word, legitimum or iuridicum diem. Law the old Saxons called lantor 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 law day.

Of the proceedinges of causes criminall, and first of the Iustices of the Peace. CHAP. 21.

BEfore the manner of procéeding in causes criminallIustices of peace. can be wel vnderstoode, it will be necessarie to speak of thrée persons, the Justices of peace, the Coroners, and the Constables. The Justices of peace be men elected out of the nobilitie, higher and lower, that is the Dukes, Marquises, 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 whom for wisedome and discretion hée [Page] 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 limitted but by commission from the Prince alterable at pleasure.

At the first they were bnt 4. after 8▪ now they come commonly to 30. or 40. in euery shire, either by increase of riches, learning, or actiuitie in policie and gouernment. So many more being found, which haue either will, or power, or both, are not to manie to handle the affaires of the Common wealth in this behalfe. OfIustices of Quorum. these in the same commission be certaine named, which bée called of the Quorum, in whom is especiall trust reposed, that where the commission is giuen to fortie or thirtie, and so at the last it commeth to foure or thrée, it is necessarie for the performance of many affaires to haue likewise diuers of the Quorum. The wordes of the commission be such, Quorum vos AB. CD. EF. vnum esse volumus.

The Justices of the peace be those in whom at this time for the repressing of robbers, théeues, and vagabounds, of priuie complots and conspiracies, of riotes, and violences, and all other misdemeanours in the common wealth, the Prince putteth his speciall trust. Each of them hath authoritie vpon complaint to him made of any theft, robberie, manslaughter, murder, violence, complots, riotes, vnlawfull games, or any such disturbance of the peace, and quiet of the Realme, to cō mit the persons whom hée supposeth offendors, to the prison, and to charge the Constable or sherife to bringe them thither, the Gaoler to receaue them and kéepe them till he and his fellowes doe méete. A fewe lines signed with his hand is ynough for that purpose: these doe méete four times in the yeare, that is in each quarter [Page] once, to enquire of all the misdemeanors aforesaid: at which daies the shirife, or his vndershirife with hisThis is not alwaies and in all places obserued, but only concerning the graund enquest. bailifes be there to attende vppon him, who must prepare against that time foure enquestes of xxiiij. yeomen a péece of diuers hundreds in the shire, and besides one which is called the great enquest out of the bodie of the shire mingled with al. These fiue enquests are sworne before them to enquire of all heretiques, traitors, theftes, murthers, manslaughters, rapes, false moniers, extortioners, riottes, routes, forcible entries, vnlawfull games, and all such thinges as bée contrarie to the peace and good order of the Realme, and to bring in their verdict. If they among themselues vppon their owne knowledge doe finde any culpable, they cause one of the clarkes to make the bill. And if any bee there to complaine vppon any man for these faultes, he putteth in his bill, which bill is presented first to the Justices sitting vppon the bench, to sée if it be conceiued in forme of lawe, which done ye complainant doth deliuer it to one of these enquestes, & after the complainant is sworne, he declareth to thē what he can, for ye proofe of it. And if they find it true they do nothing but write on the backeside of it, billavera, as ye would say, scriptum Verum: or accusatio iusta, or reus est qui accusatur: Then he who is there named is called indicted. The maner of the bill is such, Inquiratur pro domino rege.

If they do not finde it true, they write on the backside ignoramus, and so deliuer it to the Justices, of whom it is rent into péeces immediatly: he that is indicted is accompted a lawfull prisoner, and after that time looked more streitly vnto. For this inditement is no conuiction: and if hee be indicted, and bée not alreadie in Prison, the Sherife if he can finde him, bringeth him into prison: if he cannot finde him, processe is made out against him, to render himselfe prisoner, or else hée [Page] shalbe outlawed. So he is called thrée times in diuers countie dayes to render himselfe to the Law. TheThe vse of Capias and exigens vpon inditementes is otherwise. fourth is called the exigent, by which hee is outlawed not rendring himselfe, as yée would say: exactus or actus in exilium. The outlaw looseth all his goods to the King for his disobedience. But if after he will render himselfe to answere to the lawe, and shew some reasonable cause of his absence, many times of grace his outlawrie is pardoned. These méetinges of the Justices of peace foure times in the yeare, be called quarterThey are put to fines. 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 xij. is called at the Kings suite: and the King is reckoned the one partie, and the prisoner the other. The Justices of the peace do méete also at other times by commaundement of the Prince vpon suspition of warre, to take order for the safetie of the shire, sometimes to take musters of harnesse and able men, and sometime to take orders for the excessiue wages of seruantes and labourers; for excesse of apparell, for vnlawfull games, for conuenticles and euill orders in alehouses, and tauernes for punishment of idle and vagabound persons, and generally, as I haue said, for the good gouernment of the shire, the Prince putteth his confidence in them. And commonlie euery eare, or each second yeare in the beginning of Somer or afterwardes, (for in the warme time the people for the most parte 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 euil rule of the popular, and sendeth them downe to the Justices [Page] willing them to looke vpon those points, and after they haue mette together, and consulted among themselues how to order that matter most wisely and circū spectly, whereby the people might be kept in good order and obedience after the law, they deuide themselues by thrée or foure: and so ech in his quarter taketh order for the execution of the said articles.

And then within certaine space they méete againe and certifie the Prince or his priuie Councell, how they doe find the shire in rule and order touching those points and all other disorders. There was neuer in any common wealth deuised a more wise, a more dulce and gentle, nor a more certaine way to rule the people, whereby they are kept alwayes as it were in a bridle of good order, and 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 cal vpon it, and if occasion so do present, one or two presently either punished, or sent to prison for disobedience to those olde orders and lawes, they take a feare within themselues, they amende, and doe promise more amendment. So that it is as a new 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 the vse and execution thereof is the most benefit that can be deuised for ye commonwealth of England: so when it shalbe misused, dissembled with, or be contemned, & be done pro forma tā tum, & as they term it in France, par mainere d'acquit only, it wil be the present ruine (though not at the first perceiued) of ye cōmonwealth. Of which the fault may be as well in the commanders for not making good choice, what and how they commaund, as in the commaunded, for not executing that which is commaunded.

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Of hue and crie and recognisaunce taken vppon them that may giue euidence. CHAP. 22.

BY the olde lawe of England, if any theft, or robberie be done, if hee that is robbed, or hée that séeth or perceiueth that any mā is robbed do leuie hue and crie, that is to say, do crie and call for aide, and say that a theft or robberie is done 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 found in that parish, to goe to the next and raise that Constable, and so still by the Constables and them of the Parish one after another. This hue and crie from parish to parish is caried, till the théefe or robber be found. That parish which doth not his dutie, but letteth by their negligence the théefe to depart, doth not onely pay a fine to the king, but must repay to the partie robbed his dammages. So that euerie English man is a sergeant to take the théefe, and who sheweth himselfe negligent therein, doth not only incurre euill opinion therefore, but hardly shall escape punishment: what is done with the théefe or robber when he is taken, I shall shew you hereafter. The same manner is followed if any man bée slaine, for streight the Murtherer is pursued of euery man til he be taken. So soone as any is brought to the Justices of peace by this hue or crie, by the Constable or any other who doth pursue the malefactor, hée doth examine the malefactor, and writeth the examination and his [Page] confession: then he doth binde the partie that is robbed, or him that sueth, and the Constable, and so many 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 x. pound, xx. pound, xxx. pound, xl. pounde, or C. pound, according to his discretion, and the qualitie of the crime: which certified▪ vnder his hand, is leuied vpon the recognizance, if they faile of being there.

Of the Coroner. CHAP. 23.

BUt if any man, woman, or child, be violently slaine, the murtherer not knowen, no man ought or dare burie the bodie before the Coroner hath seene 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 call here, whosoeuer he be, man, woman or Childe that violently commeth to his death, whether it be be by knife, poison, 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 do come (which for the most part men dare not doe) he doth cause the bodie to be taken vp againe, and to be searched, and vppon the sight of the bodie so violently come to his death he doth empanell an enquest of twelue men or mo, of those which come next by, be they strangers or inhabitants, which vppon their othes, and by the sight or view of the bodie, and by such informations as they can take, must search howe the person slaine came to his death, and by whom as the doer or causer thereof. [Page] 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 said Coroner to giue their verdict. So sometime ye person to haue slaine himselfe, sometime the brother, the husband, the wife, the sister, some of acquaintance or stranger, such as God wil haue reueiled, be taken. For whosoeuer they do finde as guiltie of the murther, 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 shal sée hereafter.

The empanelling of this enquest, and the view 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 euery 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 maintenance of them in securitie and peace.

Of the Constables. CHAP. 24.

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 bée now. It may appeare that there was a credit giuen vnto them not altogether vnlike to that which is now giuen to the Justices of peace. To this day if any affraie chaūce [Page] 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 wil set straight vpon him, and by force make him to render himselfe 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 searche for such men till hée finde them: and if hée sée cause, kéepe the suspected persons in the stockes, or custodie, till he bring them before a Justice of the peace to be examined. But for so much as euery little Uillage hath commonly two Constables, and many times artificers, labourers, and men of small abilitie be chosenOne or two constables, hedborowes: or tithingmen vnto that office, who haue no great experience, nor knowledge, nor authoritie, the Constables at this present (although this they may doe vpon their owne authoritie) yet they séeme rather to be as it were the executors of the commaundement of the Justices of peace. For the Justice of peace as soone as he vnderstandeth by complaint that any man hath stollen, robbed, slaine, or any seruant, or labourer without licence, hath departed out of his masters seruice, or any yt liueth idle and suspectly, knowing once in what parish hée is, hée writeth to the Constable of the Parish, commaunding him in the Princes name, to bring that man before him: The Constable dareth not disobey. The man is brought and examined by the Justice, and if the Justice doe finde cause, hée commiteth him to the same Constable to conueye him further to the Princes gaole, where the partie must lie till the Justices of peace doe méete either at their quarter sessions, or at their gaole deliuerie, and that the lawe hath either cōdemned or acquited him. These Constables are called in some places Headborowes, in some places Tithingmen, and [Page] be like to them, who are called Consuls in many towns and villages in Fraunce. The Constables are commonly made and sworne at the Léetes of the Lordes, chosen thereto by the homage, and they kéepe that office sometime two, thrée, or foure yeares, more or lesse.Kinningstable is Regia virgula, the Kinges rod or wand, signifying the Kinges power or authoritie, a representation whereof is the vse of maces & white staues by officers in the cō monwealth. as the parish doth agrée. What headborough doeth betoken it is easily knowen, our language doeth declare him as the head or chiefe of the borowe or village: likewise tithingman is the chiefe of the tithing. Constable séemeth to me to come of our old english word Kinning, which is Kinningstable, as ye would say, a man established by the king, for such things as appertaine to pleas of the crowne, and conseruation of the kings peace, and as I said at the first, were in some more reputation, approching to that authoritie which the Justices of peace now doe hold.

Of the Sessions of Gaole deliuerie, and the definitiue proceedings in causes criminall. CHAP. 5.

HOwe théeues and murtherers and other malefactors against the crowne and the peace are takē and brought into holde to answere to iustice, partly by hue and crie, partly by information, and partly by the diligence of the Justices of peace and the Constables: and howe at the quarter Sessions they bee indicted, or else by the Coroners, ye haue hearde before. Enditement (as yée may perceyue 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 doeth but shewe what opinion the countrey hath of the malefactor: and [Page] therefore commonly men be indicted absent, not called to it, nor knowing of it. For though a man be endicted, yet if when he come to the araynement, 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 twelue haue giuen a preiudice against him, so twelue againe must acquite or condemne him. But if the prisoner be not indicted, but sent to prison vpon some suspition or suspitious behauiour, & none do pursue him to the enditement, first being proclaimed thus, A. B. prisoner standeth here at the barre, if any man can say any thing against him, let him now speake, for the prisoner standeth at his deliueraunce: if no man doe then come. hée is deliuered without anie further processe or trouble, agréeing first with the gaoler for his fées. And these be called acquited by proclamation. Twise in 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 dooth sende downe into euerie shire of Englande certaine of his Judges of Westminster hall, and some Sergeantes at the lawe with commission to heare and determine iointlie with the Justices of the peace all matters criminall and all prisoners which be in the gaoles. These Judges doe goe from shire to shire till they haue doone their circuit of so manie 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.

[Page]The sherife hath readie for criminall causes (as I writte before at the Sessions of inquirie) four, fiue or six enquestes readie warned to appeare that day to serue the Prince, and so many more as hée is commaunded to haue readie to goe in ciuill matters betwixt priuat mē, which they call Nisi prius, because that worde is in the writte.

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 down in commission, in the middest. Next them on ech side sitte the Justices of peace, according to their estate and degrée. On a lower bench before them, the rest of the Justices of peace, and some other Gentlemen or their Clarkes. Before these Judges and Justices there is a table set beneath, at which sitteth the Custos Rotulorum, or kéeper of writs, Thexchetor, the vndersherife, and such clarkes as doe write. At the ende of that table there is a barre made with a space for the enquestes, and twelue men to come in when they are called, behinde that space another bar, and there stand the prisoners which be brought thether by the Gayler, all chayned one to another. Then the Cryer cryeth, and commaundeth silence. One of the Judges briefly telleth the cause of their comming, and geueth a good lesson to the people. Then the prisoners are called for by name, and bidden to answere to their names. And when the Custos rotulorum hath brought foorth their endictments, the Judges doe name one or two, or thrée of the prisoners that are indicted, whom they will haue arraigned. There the clarke speaketh first to one of the prisoners: A. B. come to the barre, holde 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 [Page] with force and armes an horse, which was such ones, of such colour, to such a valor, and carried him away feloniouslie, and contrarie to the peace of our soueraigne Lady the Quéene. What sayest thou to it, art thou guiltie or not guiltie? If he will not answere, or not answere directly guiltie or not guiltie, after hée 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 vpon him, and so much waight of stones or lead laide vpon that table, while as his body be crushed, and his life by that violence taken from him. This death some strong and stout harted man doeth 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 hee confesse the Indictment to bée true, then when he is arraigned, no twelue men go vpon him, there resteth but the Judges sentence, of the paine of death.

If he pleade not guiltie, as commonly all théeues, robbers and 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 in flagranti crimine, howsoeuer it bée, if he pleade there not guiltie, the Clarke asketh him how he will be tried, and telleth him he must say, by God and the Countrey, for these be the words formall of his triall after indictment, and where the Prince is partie: if the prisoner doe say so, I will be tried by God and the Countrey, then the Clarke replyeth, Thou hast béene indicted of such a crime, &c. Thou hast pleaded not guiltie: being asked how thou wilt be [Page] tried, 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 and death. Then calleth he in the first Juror. B. C. come to the booke, and so giueth him an othe to goe vprightlie 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 xij. 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 beyng substantiall 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 euery name crieth aloude, one, then two, thrée, foure, and so till the number be full of twelue or more, and then saith good men and true: and then saith aloude: If any can giue euidence, or can say any thing against the prisoner, let him come now, for he standeth vpon his deliuerance. If no man come in, then the Judge asketh who sent him to prison, who is commonly one of the Justices of peace: he (if he be there) deliuereth vp the 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 Justice of the peace, and that appeare by his hande [Page] and confirmation, the twelue 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 Justice 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 Justice 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 sworne one after an other to say truth. These be set in such a place as they may sée the Judges and the Justices, the enquest and the prisoner, and heare them, and bee heard of them all. The Judge after they be sworne, asketh first the partie robbed, if he knowe the prisoner, and biddeth him looke vpon him: he saieth 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 beatedst mée, thou tookest my horse from me, 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 all that he can say: after him likewise all those who were at the apprehension of the prisoner, or who can giue anie indices or tokens which wée call in our language euidence agaynst the malefactor. When the Judge hath heard them say ynough, hée asketh if they can say any more: if they say no, then hée turneth his speache to the enquest. Good men (saith he) ye of the enquest, ye haue heard what these men say against the prisoner, you haue also heard what the prysoner can say for himselfe, haue an eye to your othe, and to your duetie, and do that which God shall put in your mindes [Page] 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 thrée prisoners: For if they should be charged with more, the inquest will say, my Lorde, wée pray you charge vs with no more, it is inough 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, landes, and tenementes the said person had at the time of the felonie committed: and if they finde any, they shall bring it in: if no, they shall 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, nor 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 Judges, the Justices, the enquest, the prisoner, and so many 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 depositors and witnesses what is saide. As of this, so is it of all other prisoners after ye same sort. By that time [Page] that the enquestes for the prysoners be dispatched, it is commonly dinner time, the Judges and Justices 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 enquestes haue no sooner agréed vpon their charge one way or other, but they tell the Baylife, and pray to bée heard, and considering that they bée themselues all this while as prisoners as I saide before, it is no maruell, though they make expedition. The prisoners be sent for agayne to the barre, the enquest which hath agréed, is called for each one of the Jurie by his name, to which he answereth. Then the Clarke asketh if they be agréed, and who shall speake for them. One or mo saith yea. He that speaketh for them all is called the foreman, and commonly it is he that is first sworne: then the prisoner is bidden to holde vp his hand. 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, beyng asked howe thou would be tryed, thou saydst by God and thy countrey. These honest men were giuen to thée by God and thy Prince for thy Countrey: Hearken what they say. Then he asketh of the enquest, what say you? Is hée 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 Judge nor Justice hath to doe, or can reuerse, alter or chaunge that matter, if they say guiltie. The Clarke asketh what landes, tenementes, or goods, the prysoner 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 diligent ynough to enquire of that, for the Princes and [Page] his owne aduantage, and so is the excheator also.

Of him whom the twelue men pronounce guiltie, the Judge asketh what he can say forhimselfe: if he can reade, he demaundeth his Clargie. For in many felonies, as in theft of Oxen, Shéepe, Money, or other such thinges, 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 Clargie, for which purpose the Bishop must send one with authority vnder his seale to be Judge in that matter at euery gaole deliuerie. If the condemned man demaundeth 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 verie slenderly:) then he asketh of the Bishops commissarie, legit vt clericus? The Commissarie must say legit or non legit, for these bee wordes formall, and our men of Law be very precise in their wordes formall. If he say legit, the Judge procéedeth no further to sentence of death: if he say non the Judge foorth with, or the next day procéedeth to sentence, which is done by word of mouth onely: Thou A. hast bin endicted of such a felony, 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, 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 hange till thou be dead. Then hée saith to the Sherife, Sherife do execution: hée that claimeth his Clargie, is burned forthwith in the presence of the Judges in the brawne of his hande with a hot yron marked with the letter T. for a théefe, or M. for a manslear, in cases where Clargie [Page] is admitted, and is deliuered to the Bishops officer to be kept in the Bishops pryson, from whence after aThe deliuerie to the Bishops prison, and the purgation is taken away by statute. 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 pryson, paying the gaolers fées: and if hée know any priuate man who purchased his indictement, and is able to pursue it, he may haue an action of conspiracie againstThey must be two at the least that conspired. him, and a large amendes: but that case chaunceth seldome.

Certaine orders peculiar to England, touching punishments of malefactors. CHAP. 26.

FOr any felonie, manslaughter, robberie, murther, rape, and such capitall crimes as touch not treason, and laesam maiestatem, we haue by the Lawe of England no other punishment, but to hang til they be dead: when they be dead, euery man may burie them that will, as commonly they be. Heading, tormenting, dismembring, eyther arme or legge, breaking vpon the whéele, empaciling, and such cruell torments, as be vsed in other nations by the order of the law, we haue not: and yet as few murthers committed as any where: nor it is not in the Judges or the Justices power, to aggrauate or mitigate the punishment of the Law, but in the Prince onely and his priuie Counsell, which is maruellous seldome doone. Yet notable murtherers many times by the Princes commaundement, after they be hanged with corde till they be dead, be hanged with chaines while they rotte in the ayre. [Page] If the wife kill her husband, she shalbe burned aliue. If the seruant kill his master, he shall be drawen on a hurdle to the place of execution: it is called petit treason. Impoysoners, if the person die thereof, by a new law made in king Henrie the eights time, shalbe boyled to death: but this mischiefe is rare, & almost vnknowenQuaere. in England. Attempting to impoyson a man, or laying awayt to kil a man, though he wound him dangerously, yet if death follow not, is no felonie by the law of England, for the Prince hath lost no man, and life ought to be geuen we say, but for life onely.

And againe, when a man is murdered, all be principals, and shall die, euen he that doeth but hold the candle to geue light to the murtherers. For mitigation and moderation of paines, is but corruption of Judges, as we thinke. Likewise, torment or question, which is vsed by the order of the ciuill law, and custome of other countreies, to put a malefactor to excessiue paine, to make him confesse of himselfe, or of his felowes, or complices, is not vsed in England, it is takē for seruile. For what can he serue the commonwealth after as a fréemā, who hath his body 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 triall of the twelue goeth not vpon him: if he denie the fact, that which he said before; hindereth him not. The nature of Englishmen is to neglect death, to abide no torment: And therefore he will confesse rather to haue done any thing, yea to haue killed his owne father, than to suffer torment: for death our nation doeth not so much estéeme as a meane torment. In no place shall you sée malefactors goe more constantly, more assuredly, & with lesse lamentation to their death, than in England.

[Page]Againe, the people not accustomed to sée such cruell tormentes, will pitie the person tormented, and abhorre the Prince and the Judges, who should bring in such crueltie amongest them, and the twelue men the rather absolue him. There is an olde lawe of England, that if any gaoler shall put any prysoner beyng in his custodie to any torment, to the intent to make him an approuer, that is to say, an accuser, or Index of his complices, the Gaoler shall die 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 twelue doe finde him guiltie, he dieth therefore without delay. And the malefactor, séeing there is no remedie, and that they be his Countrie men, and such as he hath himselfe agréed vnto it, doe finde him worthie death, yéeldes for the most part vnto it, and doeth not repine, but doeth accommodate himselfe to aske mercie of God.

The nature of our Nation is frée, stout, hault, prodigall of life and bloud: but contumelie, beatings, seruitude and seruile torment, and punishment, it wil not abide. So in this nature and fashion, our ancient princes, and Legislators haue nourished them, as to make them stout hearted, couragious, and souldiours, not villaines and slaues, and that is the scope almost of all our policie.

The twelue as soone as they haue geuen their verdict are dismissed to goe whether they will, and haue no maner commoditie and profite of their labour and verdict, but onely doe seruice to the Prince and Common wealth.

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Of treason, and the triall which is vsed for the higher nobilitie and Barons. CHAP. 27.

THe same order touching triall by enquest of twelue men, is taken in treason, but the paine is more cruell. First to be hanged, taken downe aliue, his bowels taken out, and burned before his face, then to be beheaded, and quartered, and those set vp in diuers places. If any Duke, Marques, or any other of the degrée of a Baron, or aboue, Lord of the Parlement be appeached of treason, or any other capitall crime, he is iudged by his péeres and equals: that is, the yeomanrie doeth not go vpon him, but an enquest of the Lords of the Parlement, and they geue their voyce, not one for all, but ech seuerally as they doe in Parlement, beginning at the yongest Lord. And for Judge one Lord sitteth, who isOr rather, high steward of England. Constable of England for that day. The iudgemēt once geuen, he breaketh his staffe, and abdicateth his office. In ye rest there is no difference from that aboue written.

THE THIRDE BOOKE.

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Of that which in other Countreis is called Appellation, or Prouocation, to amend the iudgement, or sentence definitiue, which is thought vniustly geuen in causes criminall. CHAP. 1.

IF the enquest of xij. men do séem to the Judges and the Justices to haue gone too violently against the euidence géeuen in matters criminall, either it is that vpon slender euidence they haue pronoūced him guilty, whom the Judges and most part of the Justices thinkes by the euidence not fully proued guiltie, or for some other cause, doe thinke the person rather worthie to liue than to die. The enquest is neuerthelesse dismissed: but when the Judges should pronoūce the sentence of death vpon the person found guiltie, hée will deferre it, which is called, to repriue the prisoner, (that is to say, to send him againe to prison) and so declare the matter to the Prince, and obteyneth after a time for the prisoner his pardon: and as for prouocation or appeale, which is vsed so much in other countreys, it hath no place in England, after sentence geuen by the twelue, whereby the person is found guiltie or not guiltie: but without that repriuing, the sentence is streight put in execution by the sherife.

[Page]And if they either escape, or die another death, the sherife escapeth not to pay a great fine and raunsome at the princes mercie: if hauing pregnant euidence neuerthelesse, the twelue doe acquite the malefactor, which they will doe sometime, and especially if they perceiue either one of the Justices or ōf the Judges, or some other man to pursue too much, and too maliciously the death of the prisoner, and doo suspect some subornation of the witnes, or of them which doe geue euidence, and sometime if they perceiue the Judge would haue ye prisoner escape, and in repeating the euidence do geue them thereof some watchword. But if they doe (as I haue said) pronounce not guiltie vpon the prisoner, against whom manifest witnesse is brought in, the prisoner escapeth: but the twelue 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 twelue answere with most gentle wordes, they did it according to their consciences, and pray the Judges to be good vnto them, they did as they thought right, and as 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 [Page] 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.

What remedie is, if the sentence be thought vniustlie giuen. CHAP. 2.

IN causes ciuill there is another order: for if after the matter be pleaded to the issue, & the twelue men thervppon impaneled, the euidence brought and pleaded before them on both the parties, the twelue séeme to be partiall, and to haue giuen sentence contrarie to the euidence shewed vnto them: the partie gréeued may bring against them, and the partie for whom the sentence is giuen, a writ of attaint: and whereas before vpon the first quest commonlie they all be yeomen, now vpon this attaint must goe xxiiij. gentlemen dwelling within the shire, and twelue at the least of the hundreth where the land lyeth. The matter is pleaded againe before the same Judges. The partie defendant is not onely now he who claimeth the land, but also all and euery of the yeomen, who by their verdict did giue it him.

There must in the attaint no more euidence be brought in, but onely that which was brought in and alledged before the first enquest. And if this second enquestNo more euidence on the behalfe of the plaintife but of the defendant there [...]y. of foure and twentie gentlemen do adiudge as the first did, the plaintife shall not onely loose the lande, but also pay a fine to the Prince, and damages to the party. If this seconde enquest doe finde that the first enquest hath gone partially, and against the euidence brought in before them, the first enquest is called attainted, [Page] and accounted as periured and infamed. The PrinceThe statute of 23, Henrie 8. doth not abolish common law, but giueth a more profitable for the plaintife. had before the waste of all their landes and possessions with other punishmentes, which at this present by a law made by Parliament in the time of King Henry the eight is abolished, and now by that law or acte of Parliament, beside other punishment; each of the quest attainted payeth vnto the Prince and Partie fiue pound, if it be vnder fortie pounds: & if aboue, then twē tie pounds. Attaints be verie seldom put in vre, 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 pay a meane fine than to appeare and make the enquest. And in the meane time they will intreate so much as in them lyeth the parties to come to some composition and agréement among thē selues, as lightly they do, except either the corruption of the enquest be too euident, or the one partie is too obstiuate and headstrong. And if the gentlemen do appeare, gladlier they will confirme the first sentence, for the causes which I haue said, than goe 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 Judge (which ordinarily for a time is differred) the parties be agreed, or one of them be dead, the attaint ceaseth.

If at any time before the sentence be giuen or put in execution, there bee found some such errour in the writ, in the processe, or forme (as our lawiers 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 done reuersed. But that is common to all other Countries, where the ciuill lawe is vsed, which they call de [...]llitate processus, and serueth both in England and in other places aswell in causes [Page] criminall, as ciuil. Other kinde of appellation to reuoke processes, and to make them of short, long, of long, infinite, which is vsed by the ciuill law, we haue not in our common law of England. By supplication to the Prince and complaint to the Chauncelor vppon supposal of losse or lack of euidence, or too much fauour in the countrey, and power of the aduersarye, there is in our countrie as well as theirs both stopping and prolonging of Justice. For what will not busie heades and louers of trouble neuer being satisfied, inuent in any Countrey to haue their desire, which is to vexe 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 imploye 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 spend theirs: so sometime being throughly knowen, they do not onely liue by the losse like euill husbandes, but beside rebuke & shame, by the equity of the Prince and Courtes soueraigne, they come to be extraordinarily punished, both corporally, and by their purse, which thing in my minde is as royall and princely an act, and so beneficiall to the Common wealth, as in so small a matter a King or Quéene can doe, for the repos and good education of their subiectes.

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Of that vvhich 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 indicted, by giuing information to the enquest of enquirie, (although he chaunce to escape the Constable or Justices handes, and therefore not to bee apprehended) and thereupon to procure him to be outlawed, or else within a yeare and a day I may enter my appeale, that is mine accusation against him. If I began first to pursue him by information or denunciation to enditement, I am now no partie but the Prince, who for his dutie to God and his common wealth and subiectes, must sée iustice executed against all malefactors and offenders against the peace, which is called Gods and his, and doth in such manner as I haue said before. If I leaue that and will appeale, which is; profer my accusation against him who hath done to me this iniurie, the defendant hath this aduantage, to put himselfe to the Jurie, which is to that which before is said to haue that issue and triall by God and his countrie, whereof the fashion I haue at large declared:In appeale the battle is tried by the parties onely, and in writs of right by chāpions. or to demaunde the triall by battle; wherein both the parties must either themselues in person, or else finde other for them, who bee called in our Law Champions or Campions, some doth interprete them [...], because they be men chosen, fat, lustie, fit to the feat, or as the French doe terme them adroicts aux armes, which shall fight it out by [...], or as now they doe [Page] call it duellum, or the Campe, which shall haue all thinges equall: but according as Mars giueth the victorie, so the Law 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 graund assise, for the reus or defendant 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 séemeth verie military (as in maner all our pollicie of England) and to haue as small to doe with Lawyers as with Phisitions, quicklie to dispatche, and for the rest to returne, each man to his businesse, to serue the Common wealth in his vocation. The Popes of Rome, and men of the Church who of long time haue had dominiō in our consciences, and would bring thinges to a more moderation, haue much detested this kinde of triall and iudgement, as reason is euery man misliketh that which is not like to his education, and colo reasoning by Theologie and Philosophie: they I say much mislike manie thinges done necessarily in whot policie. At the least a common wealth militarie must aduenture many thinges to kéepe it in quiet, which cannot séeme so 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 bin vsed. So that at this time wee may rather seeke the experience of it out of our histories of time passed, than of any viewe or sight therof, of them which are now aliue. Neuerthelesse the Law remaineth still, and is not abolished, and if it shall chaunce the murtherer or manslear (the one we call him that lieth in waite, and as they terme it in French de guet appendant killeth the man, the [Page] other who by casuall fallinge out and sodayne debate and choler doth the same which way soeuer it be done) if hée that hath slaine the man, hath his pardon of the Prince, as occasion or the fauour of the Prince may so present that he may haue it, yet the partieThe battle or Iurie is at the election of the defendant. grieued hath these two remedies, I say to require iustice by grand assise, or battle vppon his appeale & priuate reuenge, which is not denyed him. And if the defendant either by great assise or by battle bee conuinced vpon that appeale, hee shall die, notwithstanding the Princes pardon. So much fauourable our Princes be, and the Law 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 ther is not the like in any other countrie. In the Terme time (the Term time as I haue heretofore shewed, I call the time and those daies when the Law is exercised in Westminster hall, which as I haue said, is but at certaine times and Termes) euery wéeke once at the least (which is commonly on Fridaies, and Wednesdaies, and the next day after that the Terme doth ende) the Lorde Chauncellor, and the Lordes, and other of the priuie Counsell, so many as wil, and other Lordes and Barons which be not of the priuie Counsell, and be in the towne, and the Judges of England, specially the two chiefe Judges, from ix, of the clocke til it be xj. do sit in a place which is called the starre chamber, either because it is full of windowes, or because at the first all [Page] the roofe thereof was decked with images of starres gilted. There is plaintes heard of riots. Riot is called in our English terme or speach, where any number is assembled with force to do any thing: and it had the beginning, because that our being much accustostomed either in forreine wars, in Fraunce, Scotland, or Irelande, or being euermuch excercised 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 busie heads and hands accustomed to fight and quarell, must néedes seeke quarels and contentions amongest themselues, and become so readie to oppresse right among their Neighbours, as they were wont before with praise of manhood to bee in resisting iniurie offered by their enemies. So that our Nation vsed hereunto, and vppon that more insolent at home, and not easie to be gouerned by Law and politike order, men of power beginning many frayes, and the stronger by factions and parties offering too much iniurie 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 routes 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 Justices of the peace shall assemble themselues & remooue the force, & within certaine time enquire thereof. And further, because such thinges are not commonlie done by meane men, but such as be of power and force, & be not to be dealt withall of euerie man, nor of meane Gentlemen: if the riot be found & certified to the Kings Connsell, or if otherwise it bee complained of, theSent for by Sub poena. partie is sent for, and he must appeare in this starre [Page] chamber, séeing (except, the presence of the Prince onely) as it were the maiestie of the whole Realme before him, being neuer so stout, he will be abashed: and being called to aunswere (as hee must come of what degrée soeuer he be) he shall be so charged with such grauitie, with such reason and remonstrance, and of those chiefe personages of England, one after another handeling him on that sort, that what courage soeuer hee hath, his hart will fall to the ground, and so much the more, when if he make not his answere the better, as seldome he can so in open violence, he shal be commaunded to the Fléete, where he shall be kept in prison in such sort as these Judges shall apppoint 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 bee forgotten, whiles after long suite of his friendes, hee will be glad to be ordered by reason. Sometime as his desertes be, he payeth a great fine to the Prince, besides great costes 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 stout noble men, or Gentlemen which would offer wrong by force to any manner men, and can not be content to demaund or defend the right by order of Law. This court began long before, but tooke greate augmentation and authoritie at that time that Cardinall VVolsey Archbishoppe of Yorke was Chauncelor of Englande, who of some was thought to haue first deuised yc Court, because that he after same intermission by negligence of time, augmented the authoritie of it, which was at that time maruellous necessarie to do, to represse the insolencie of the noble men and Gentlemen of the North partes of England, who being farre from the King and the [Page] seate of iustice made almost as it were an ordinarie warre among themselues, and made their force their Lawe, banding themselues with their tenantes and seruantes 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 another to his Court to answere before the persons before named, after they had had remonstrance shewed them of their euill demeanor, and bin well disciplined as well by wordes, as by fléeting a while, and thereby their purse and courage somewhat asswaged, they began to range themselues in order, and to vnderstand that they had a Prince who would rule his subiectes by his lawes and obedience. Sith that time this court hath bin in more estimation, and is continued to this day in manner as I haue said before.

The Judges of this Court are the Lord Chauncellor, the Lord Treasorer, al of the Quéenes Maiesties Counsell, the Barons of this land.

The officers therein, are a Clarke, thrée Atturneis, an Examinor.

The Clarke kéepeth the recordes, rules, entries, orders, and decrées, made in this Court.

The thrée Atturneis are for the plaintife, and for the defendant to frame their complaintes, and answers, and make their mattter apt to be heard for the Lords.

The Examinor taketh the depositions of the witnesses of both sides to the proofe or disproofe of the cause.

The order of procéeding to iudgement is by assent of voices, and open yéelding their minde in court, the maior part being preferred for sentence.

The punishment most vsuall, is imprisonment, pillorye, a fine, and many times both fine and imprisonment.

[Page]The processe is a subpena, an attachment, a proclamation of rebellion, and a commission of rebellion.

The subpena is in manner pf a libell or precept.

The Proclamation and cōmission of rebellion serueth when the partie is stubborne, hauing made concontempt, and commeth not in by the former proces.

The Messengers of this court are the warden of the Fléete: or the Sergeants at armes.

The Matters belonging most commonly, are by statutes, as is taking away of Maides within age against their parentes or gardians will. Sée Anno 4 & 5. Phil. & Mariae cap. 18. All notable forgeries, counterfeiting letters or priuie tokens. Sée Hen. 8. Anno 33. cap. 1. Anno 5. Eliz. cap. 11. slandering of nobles, and sedicious newes. Sée R. 2. anno 2. Cap. 5. anno 1. & 2. Phil. & Mariae Cap. 3. anno. 2. 3. Eliz. Cap. 7. All notable Riots and vnlawfull assemblies. Sée Anno 1. Eliz. cap. 17. And al the titles of Riottes in Rastals abridgement, all notable deceiptes, and all kinde of cousenage &c.

Of the Courtes of Wardes and Liueryes. CHAP. 5.

HE whom we call a ward in England, 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 xiiij. yeare old, the other was accoū ted from thence to xxv. And as pupillus had tutorem, so minor had curatorem till he came to the age of xxv. These [Page] tutors or curators were accountable for the reuenues of the pupils minors lands, & great prouision and many lawes and orders be made for them in the bookes of the ciuil law, for rendering iust and 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 encumbrance and small profite, so that diuers meanes were sought for, to excuse men from it. With vs this is clean contrarie, for it is reckoned a profite to haue a ward. For the Lord of whom the Ward doth hold the land, so soone as by the death of the father the Childe falleth Warde vnto him, hee seyseth vppon the bodie of the Ward, and his landes, of which (so that hee doth nourish the Ward) he taketh the profite without accounts, and beside that, offering to his Warde couenable mariage without dispergment before the age of xxj. yeares if it bee a man, of fourtéene if it bée a woman. If the Warde refuse to take that mariage, hee or shée 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, that is of such as holde landes of other by knight seruice,Guardian in Chiualrie, and gardian in Socage. for that is an other kind of seruice which we call in French 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 lande of the Warde, as the vncle by the mothers side, if the lande 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 pupil so soone as he is of full age.

The man is not out of wardshippe by our Law till xxj. yeare olde, from thence he is reckoned of ful age, aswell [Page] as in the Romane Lawes at xxv. The woman at xiiij. is out of warde, for she may haue an husbande able to doe Knightes seruice, say our Bookes. And because our wiues be in the power (as I shall tell you hereafter) of their husbandes, it is no reason, she should be in two diuers gards.

Many men do estéeme this wardship by Knightes seruice verie vnreasonabie and vniust, and contrarie to nature, that a Fréeman and Gentleman should bée bought and sold like an horse or an oxe, and so change gardians as maisters and Lordes: at whose gouernment not onely his bodie but his lands and his houses should bee, to be wasted and spent without accounts, & thē to marie at the wil of him, who is his natural lord, or his will who hath bought him to such as hee like not peraduenture, or else to pay so great a ransome. This is the occasion they say, why many gentlemen bee so euill brought vp touching vertue and learning, and but onely in deintinesse and in pleasure: and why they bee maried verie yong, and before they bee wise, and many times do not greatlie loue their wiues. For when the father is dead, who hath the naturall care of his Childe, not the mother, nor the vncle, 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 Lord of whom he holdeth his lande in knightes seruice, be if the King or Quéene, Duke, Marques, or any other, hath the gouernment of his bodie, and mariage, or else who that bought him at the first, seconde, or thirde hand. The Prince as hauing so many, must needes giue or sell his wardes away to other, and so he doth. Other do but séeke which way they may make most aduantage of him, as of an Oxe, or other Beaste. These all (say they) haue no naturall care of the Infant, but of their owne gaine, and especially [Page] the buyar will not suffer his warde to take any great paines, either in studie, or any other hardnes, 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 hee paide for him should be lost. So hee who had a Father, which kept a goodBut the Lord shall be punished for the wast, by losse of the warde: or treble dammages, if that suffice not. house, and had all thinges in order to maintaine it, shal come to his owne, after he is out of wardshippe, woods decaied, houses fallen downe, stocke wasted and gone, Lande let foorth and plowed to the baren, and to make amendes, shall pay yet one yeares rent for reliefe, and sue ouster le main, beside other charges, so that not of many yeares, and peraduenture neuer hee shall bee 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 vpon the warre which he had with the Barons, and afterward increased, and multiplied to more and more persons and grieuances, and will bee the decay of the nobilitie and libertie of England. Other againe say, the warde hath no wrong, for either his father purchased the land, or it did discend vnto him from his ancestors with this charge. And because hee holdeth by knightes seruice, which is in armes and defence, séeing that by age hee cannot do that whereto he is bounde by his lande, it is reason hee answere that profite to the Lord, whereby hee may haue as able a man to do the seruice. The first knightes in Rome, those that were chosen equitts Romani had equum publicum on which they serued, and that was at the charge of Widowes and Wardes, as appeareth by Titus Liuius, because that those persons could not do bodily seruice to the Common wealth. Wherefore this is no new thing, but thought reasonable in that most wise common wealth, and to the prudent King Seruius Tullius, [Page] As for the education of our common wealth, it was at the first militaire, and almost in all thinges the scope and deseigne thereof is militaire. Yet was it thought most like, that noble men, good knightes, and greate captaines would bring vp their wardes in their owne feates and vertues, and then marie them into like rase & stocke wher they may find and make friends who can better looke to the education or better skill of the bringing vp of a Gentleman, than hée 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 yeares will make him able to doe it. That which is said that this manner of Wardshippe began in the time of King Henrie the third, cannot séeme true. For in Normandie and other places of Fraunce the same order is.

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 bée more conuenient to dispute. This may suffice to declare the maner of it.

The Judge in this Court is the maister of the Wardes.

Officers are the Atturney of the Wardes for the Quéene.

The Surueyor, the Auditor, the Treasorer, the Clarke, two common Attourneies, inferiour officers, also messengers, and Pursuyuantes.

The Atturney for the Wardes is alwaies for the Quéenes right, and assistant with the maister of the Wardes.

The Surueior is he that hath the allowing of euery [Page] Liuery that is sued out.

The Auditor taketh the accompt and causeth processe to be made.

The Treasorer receaueth the money due to her Maiestie.

The Clarke is writer of the recordes, and writer of the decrées, processes and orders of the Court.

The matters of this court are all benefites that may come vnto her Maiestie, by guard, by mariage, preuueer seison and reliefe.

The generall processe in this court is a commission, a processe in maner of a proclamation, warning the partie or parties to appeare before the maister of ye wards. More speciall processe belonging to this Court, are a Diem clausit exttemum, a Deuenerunt, a melius inquirendum, a Datum est nobis intelligi, a Quae plura. Of the nature of these, sée Stanfordes boke of the kings prerogatiue.

Out of this Court are the Liueries sued, and committed to the Clarkes of the pettie bagge, officers in the Chauncerie.

When the heire hath proued his age, and sued his liuery, then he must do homage to that is the Deputie of the Prince for that purpose, and then must pay a fine or fée to the Lord priuie Seale.

The Duchie Court. CHAP. 6.

THe Duchie Court of Lancaster is also the Quéens court of Recorde. In it are holden all pleas real & personall which concerne any of the Duchy Landes, now in her Maiesties handes and parcel of her crowne: [Page] but seuered in Court and iurisdiction.

The Judge in this Court is the Chauncelor assisted by the Atturney of the Duchie for the Quéene, ye Clarke of the Court, diuers Surueyors, two common Atturneies, diuers auditors, two assistantes, the Sergeant of her Maiestie.

The Chauncelor is a Judge of the Court to sée iustice administred betwéene her maiestie and hir subiectes, and betwéene partie and partie.

The Atturney is to maintaine the Quéenes right, and is assistant to the Chauncelor, and sheweth him what the law is,

The Clarke kéepeth the Rolles and recordes, & maketh the processe.

The Surueiors are diuers, one more principal: they suruey the Quéenes landes within the Duchie.

The Auditors are diuers: one more principall, they are to accompt and make the order of ye receiptes within the Duchie.

The common Atturneis are for the suitors that haue cause in action within the court.

The Assistantes are two Judges at the Common law that are to ayd them in difficult pointes of the law.

The Sergeant for the Quéene, is a learned Counsellor apointed to be of her Maiesties Counsell for her right.

There is also belonging to this court a Uice-chauncelor, that serueth for the Countie Palatine of Lancaster, he maketh all originall processes within his libertie, as doth the Lord Chauncelor of England for the Chauncerie.

The processe of the County Pallatine, is a Sub paena, as in the Chauncery.

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The Court of requestes. CHAP. 7.

THis Court is the Court wherein all suites made to her Maiestie by way of supplication or petition are heard and ended, neither should it hold plea of any other matters then such. And this is called the poore mans court, because there he should haue right without paying any money: and it is called also the Court of Conscience.

The Judges in this court are the maister of Requestes, one for the common lawes, the other for the ciuill lawes.

The Officers in this court, are the Register, the Examinor, thrée Atturneis, one messenger or Pursuiuant.

The Examinor is he that apposeth the witnesses by oth and recordeth their depositions.

The Atturneis serue for the plaintife and defendant to frame their complaintes and answers.

The Pursuiuant is an officer in this Court, to bring any man before the Judges whom they shall name.

The matters in this Court at this day, are almost all suites that by colour of equitie or supplication made to the Prince, may be brought before them: properly al poore mens suites which are made to her Maiestie by supplication.

The Processes in this court, are a priuie seale, proclamation of rebellion. The nature of these processes is as was said before in the Court of Starre chamber.

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Of wiues and mariages. CHAP. 8.

THe wiues in England bee as I saide in potestate maritorum, not that the husbande hath vitae ac necis potestatem, as the Romans had in the old time of their Children, for that is onely in the power of the Prince, and his lawes, as I haue said before, but that whatsoeuer they haue before mariage, as soone as mariage is solemnised, is their husbandes, I meane of money, plate, iuelles, cattaile, and generally all moueables. For as for land and heritage followeth the succession, and is ordered by the Law as I shall say hereafter: and whatsoeuer they get after mariage, they get to their husbandes. They neither can giue nor sell any thing either of their husbandes, or their owne. Theirs no moueable thing is by the law of Englande constanti matrimonio, but as peculium serui aut filq familias: and yet in moueables at the death of her husbande she can claime nothing, but according as he 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 imploied vppon the burial and the bequestes which the testator maketh in his Testament. An other third part the wife hath as her right, & the third 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 third of his goods: if he die intestate, the funerals deducted the goods be equally diuided betwéene the wife and the children.

[Page]By the common Law of Englande if a man die intestate, the Ordinarie (which is the Bishop by common intendment) sometime the Archdeacon, Deane, or Prebendarie by priuilege and prescription, doth 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 common 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. Tur forefathers newly conuerted to the Christian faith had, such confidence in their pastors and instructors, 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 profite 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 Testaments, committing of administration & mortuaries. But to turne to the matter which we now haue in hande, the wife is so much in the powar 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 stocke which the sonne doth take of the father alwaies, as the old Romans did, our daughters so soone as they be maried loose the surname of their father, and of the family and stocke whereof they do come, and take the surname of their husbandes, as transplanted from their [Page] familie into another. So that if my wife was called before Philippe Wilford by her owne name and her fathers surname, so soone as she is maried to me she is no more called Philippe Wilford, but Philip Smith, and so must she write and signe: and as she chaungeth husbandes, so she chaungeth surnames, called alwaies by the surname of her last husbande. Yet if a woman once marie a Lorde or a Knight, by which occasion she is called my Ladie, with the surname of her husbande, if hée dye, and shée take a husbande of a meaner estateYet she is no Ladie by the common law, although so called of courtesie. by whom she shall not be called Ladie (such is the honour we do giue to women) she shall still be called Ladie with the surname of her first husband and not of the second.

I thinke among the old Romans' those mariages which were made per coemptionem in manum, and per e [...] and libram made the wife in manu & potestate viri, wherof also we had in our old 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 of the next of her kinne into the handes of the husbande, and he laid downe gold & siluer for her vppon 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 solemnised in the Church or Chappell, in the presence of the Priest and other witnesses. And this only maketh both the husband and the wife capable of all the benefites which our lawe doth giue vnto them and their lawfull Children. In so much that if I marie the Widowe of one lately deade, which at the time of her husbandes death was with childe, if the childe be borne after mariage solemnised with me, this Childe shalbe my heire, and is accounted my lawfull Sonne, not his whose childe it is indéede, so precisely wee doe [Page] take the letter where ▪it is said, pater est quem nuptiae It is auoidable after the demonstrant. Those waies and meanes which Iustinian doth declare to make bastards to be lawful children, muliers or rather melieurs (for such a Terme our lawe vseth for them which be lawfull Children) be of no effect in England: neither the Pope nor Emperour nor the Prince himselfe neuer could there legitimate a bastard to enioy any benefite of our Law, the Parliament hath onely that power.

Although the wife be (as I haue written before in manu & potestate mariti, by our Law, yet they be not kept so streit as in mew, and with a garde as they be in Italie 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 houshold (as it may appeare by Aristotle and Plato, the wiues of the Gréekes had in their time) which is indéede the naturall occupation, exercise, office and part of a wife. The husband to meddle with the defence either by law 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 toward the wiues, yet for the most part they can handle their husbandes so well and so dulcly, and specially when their husbandes be sicke, that where the Law 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 executrices of his last wil and testament, and haue for the most part the gouernment of the Children and their portions: except it be in London, where a peculiar order is taken by the Citie much after the fashion of the ciuill Law.

All this while I haue spoken onely of moueable goods. If the wife be an enheritrix and bring land with [Page] her to the mariage: that lande descendeth to her eldestIt is auoidable after the husbandes death, except it be for xxj. yeares or three liues according to the statute, or except they leuie a fine. 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 her consent, nor shée herselfe during the mariage, except that she be sole examined by a Judge at the common lawe: and if he haue no childe by her and she die, the land goeth to her next heires at the common law: but if in the mariage he haue a child by her, which is hearde once to crie, whether the childe liue or die, the husband shal haue the vsufruite of her landes, (that is the profite of them during his life) and that is called the courtisie of England.

Likewise if the husband haue any land either by inheritance descended or purchased and bought, if hée die before the wife, she shall haue the vsufruite of one thirde part of his landes. That is, she shall holde the one thirde part of his landes during her life as her dowrie, whether he hath childe 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 third part.

This which I haue written touching mariage and the right in moueables and vnmoueables which commeth thereby, is to be vnderstood by the common lawe when no priuate contract is more particularly made. If there be any priuate pactes, couenants, and contracts made before the mariage betwixt the husbande and the wife, by themselues, by their parents, or their friends, those haue force and be kept according to the sirmitie and strength in which they are made, And this is ynough of wiues and mariage.

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Of Children. CHAP. 9.

OUr Childrē 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 sel, and purchase to themselues either landes and other moueables the father hauing nothing to do therewith. And therefore emancipatio is cleane superfluous, we knowe not what it is. Likwise sui haeredes complaints, de inofficioso testamento or praeteritorum liberorum non emancipatorum haue no effect nor vse in our law, nor we haue no manner to make lawfull Children but by mariage, and therefore we know not what is adoptio, nor arrogatio. The testator disposeth in his last will his moueable goods fréely as hee thinketh méete and conuenient without controlement of wife or children. And our Testamentes for goods moueable bée not subiect to the ceremonies of the ciuill lawe, but made with all libertie and fréedome, and iure militari. Of lands, 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 and 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 else by deuise, which word amongst 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] auailable. But by the common Law, if he that dieth had no sonnes but daughters, the land is equally diuided among them, which portion is made by agréement or by lotte. Although (as I haue said) ordinarily and by the common law, the eldest sonne inheriteth all the landes, yet in some countries all the sonnes haue equall portion, and that is called gauelkind, and is in many places in Kent. In some places the yongest 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 lawe, do litle appertaine 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 done through the whole Realme.

Of Bondage and Bondmen. CHAP. 10.

AFter that wee haue spoken of all the sortes of fréemen according to the diuersitie of their estates and persons, it resteth to say somewhat of bondmen, which were called serui, which kind of people and the disposition of them and about them doth occupie the most part of Iustinians Digestes, and Code. The Romanes 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 lawfull acquisition, or else borne of their bonde women and called vernae: all those kinde of bondmen be called in our lawe villayns in grosse, as ye would say immediately bonde to the person and his heirs. An other they had (as appeareth in Iustinians time) which they called adscriptitij glebae or agri censiti. [Page] These were not bond to the person, but to the mannor or place, and did follow him who had the mannors, and in our law are called villaines regardantes, for because they bée as members, or belonging to the mannor or place. Neither of the one sort nor of the other haue wée any number in England. And of the first I neuer knew 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 doeth acknowledge them in both those sorts.

Manumission of all kinde of villaines or bondemen in England, is vsed and done after diuers sortes, and by other, and more light and easie meanes than is prescribed in the Ciuill lawe, and being once manumitted, he is not libertus manumittentis, but simplie liber, howbeit, since our Realme hath receiued the christian religion, which maketh vs all the Christ brethren, and in respect of God and Christ, conseruos, men began to haue conscience to holde in captiuitie, and such extreme bondage, him whom they must acknowledge to be his brother, and as wee 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.

Upon this scruple, in continuance of time, and by long succession, the holy fathers, Munkes and Fryers, in their confession, and sperially in their extreame and deadly sicknesses, burdened the consciences of them whom they had vnder their hands: so that temporall men by little and little, by reason of that terror in their conscience, were glad to manumitte all their villaines: but the said holy Fathers, with the Abbots and Priors, did not in like sort by theirs, for they had also conscience to empouerish 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 [Page] kept theirs still. The same did the Bishops also, till at the last, and now of late, some Bishops (to make a péece of money) manumitted theirs, partly for argent, partlie for slaunders, that they séemed more cruell than the tē poraltie: after the Monasteries comming into temporall mens hands, haue béene occasion that now they bée almost all manumitted. The most part of bondemen when they were, yet were not vsed with vs so cruellie 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 enioye copihold land, to gaine and get as other serues, that now and then their Lords might fléese them, and take a péece of money of them, as in Fraunce the Lords doe taile them whom they call their subiects, 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 change of religion, to a more gentle, humane, and more equall sort, (as the Christian religion is in respect 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 lands and tenures, and by little and litle finding out more ciuil and gentle meanes, and more equall to haue that done which in time of heathenesse, seruitude or bondage did, they almost extinguished the whole. For although all persons Christiās be brethren by baptisme in Jesu Christ and therefore may appeare equally frée, yet some were, and still might be christened being bond and serue, and whom as the baptisme did finde, so it did leaue them, for it changeth not ciuill lawes nor compacts amongst men which be not cōtrarie to Gods lawes, but rather maintaineth them by obedience.

Which seeing men of good conscience hauing that [Page] scruple whereof I wrote before, haue by little and little found meanes to haue and obtaine the profite of seruitude and bondage which gentilitie did vse, and is vsed to this day amongst Christians on the one part, & Turkes and Gentiles on the other part, when warre is betwixt them vpon those whom 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 whome they make images. For the lawe of Jewes is well inough knowen, and at this day so farre as I cā learne, amongst all people Jewes be holden as it were in a common seruitude, and haue no rule nor dominion as their owne prophesies doe tel, that they should not haue, after that Christ promised to them, was of them refused: for when they would not acknowledge him, obstinately forsaking their helpe in soule for the life to come, and honor in this world for the time present, not taking the good tidings, newes, and Euangell brought to them by the great grace of God, and by the promise of the Prophets fructified in vs which be Gentiles, and brought forth this humanitie, gentlenesse, honor, & godlie knowledge which is séene at this present. But to returne to the purpose.

This perswasion I say of Christians, not to make nor kéepe his brother in Christ, seruile, bonde and vnderling for euer vnto him, as a beast rather than as a man, and the humanitie which the Christian Religion doeth teach, hath engendred 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 adscripticii glebae, and villaines regardant to the ground, [Page] to the intent their seruice might be furnished, and that the countrey being euill, vnholsome, and otherwise barren, should not be desolate. Others afterwards founde 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 Lords dung vnto the fields, to plowe his ground at certaine dayes, sowe, reape, come to his Court, sweare faith vnto him, and in the end to hold the land but by copie of the Lords Court rolle, and at the will of the Lord.

This tenure is called also in our lawe, villayne, bonde, or seruile tenure, yet to consider more déeply all land, euen that which is called most frée land, hath a bondage annexed vnto it, not as naturally the lower ground must suffer and receiue the water & filth which falleth from the higher ground, nor such as Iustinian speaketh of, de seruitudinibus praediorum rusticorum & vrbanorum, but the land doeth bring a certaine kind of seruitude to the possessor. For no man holdeth lande simply frée in England, but he or shee that holdeth the crowne of Englād: all others hold their land in fée, that is, vpon a faith or trust, and some seruice to be done to another Lord of a mannor, as his superior, and he againe of an higher Lord, till it come to the prince, and him that holdeth the crowne.

So that if a man die, and it be founde that hee hath land which he holdeth, but of whom no man can tell, this is vnderstoode to be holden of the crowne, and in capite, which is much like to knights seruice, and draweth vnto it thrée seruices, homage, warde, and mariage: that is, he shall sweare to be his man, and to be true vnto him of whom he holdeth the land, His sonne who holdeth the land after the death of his father, shalbe maried where it pleaseth the Lord. [Page] He y•holdeth the land must fréely of a temporal man (for franke almose and franke mariage hath another cause and nature) holdeth by fealtie onely, which is, he shall sweare to be true to the Lord, and doe such seruice as appertayneth for the lande which hee holdeth of the Lord.

So that all frée land in England is holden in fée, or feodo, which is as much to say, as in fide, or fiducia. That is, in trust and confidence, that he shall be true to the Lord of whom he holdeth it, pay such rents, do such seruice, and obserue such conditions as were annexed to the first donation. Thus all sauing the Prince bée not veri domini, but rather fiduciarii domini, and possessores,

This is a more likely interpretation then yt which Litleton doeth put in his booke, who saith that feodum, idem est quod haereditas, which it doeth betoken in no language. This hapneth many times to them who bée of great witte and learning, yet not séene in many tongues, or marke not the deduction of wordesLittleton did not interpret the word feodū simplex, but rather define or describe the nature therof. which time doeth alter. Fides in latine the Gothes comming into Italie, and corrupting the language, was turned first into fede, and at this day in Italie they wil say in fide, en fede, or ala fe. And some vncūning Lawyers that would make a new barbarous latine worde, to betoken land geuen in fidem, or as the Italian saith, in fede, or fe made it in feudum, or feodum. The nature of the word appeareth more euident in those which we cal to fef, feoff, or feoffees, the one be fiduciarii possessores, or fidei cōmissarii, ye other is, dare in fiduciam, or fidei commissum, or more latinely, fidei committere.

The same Litleton was as much deceiued in withernam, & diuers other old words. This withernam is [Page] he interpreteth vetitum namium, in what language I know not: whereas in trueth it is in plaine Dutche, & in our olde Saxon language, wyther nempt, alterum accipere, or vicissim 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 carrying it away out of the iurisdiction wherein I dwell, I take by order of him that hath iurisdiction, another of him again or of some other of that iurisdiction, and doe bring it into the iurisdiction wherein I dwell, that by equall wrong I may come to haue equall right. The maner of represalia, and that we call withernam, is not altogether one: but the nature of them both is as I haue described, and the proper signification of the wordes doe not much differ.

But to returne thether where wée did digresse: ye sée that where the persons be frée, and the bodies at full libertie, and maxime ingenui, yet by annexing a condition to the land, there is meanes to bring the owners and possessors thereof into a certaine seruitude, or rather libertinitie: That the Tenants beside paying the rent accustomed, shall 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 doth not make them bonde, but in the land & occupation therof, it is more properly expressed in calling ye one tenāt, the other Lord of ye fée, then either libertus or cliens can doe the one, or patronus the other: for these wordes touch rather ye persons, & the office & duety betwéene thē than the possessiōs. But in our case leauing the possession & land, all the obligation of seruitude and seruice is gone.

An other kinde of seruitude or bondage is vsed in England for the necessitie thereof, which is called apprenticehood. [Page] But this is onely by couenant, and for a time, and during the time it is vera seruitus. For whatsoeuer the apprentice getteth of his owne laboure, or of his maisters occupation or stocke, he getteth to him whose apprentice hee is, he must not lie foorth of his masters dores, he must not occupie any stocke of his owne, nor mary without his maisters licence, and he must doe all seruile offices about the house, and bée obedient to all his masters commaundementes, and shall suffer such correction as his maister shall thinke méet, and is at his maisters cloathing and nourishing, his maister being bounde onely to this which I haue said, and to teach him his occupation, and for that hee serueth, some for seuen or eight yeares, some nine or tenne yeares, as the masters and the friendes 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 Apprentise, neither yet doeth the worde betoken that which Polidore supposeth, but it is a French word, and betokeneth a learner or scholer.

Apprendre in French is to learne, and Apprentise is as much to say in French (of which tongue wée borrowed this worde, and many more other,) as discipulus in Latine: Likewise he to whom hée is bounde, is not called his Lord, 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 yeares agréed vpon, by order of the Citie amongst them, no man béeing neuer so much borne in London, and of parents Londoners, is admitted to bée a Citizen or frée man of London: the like is vsed in other great Cities of England. [Page] Besides apprentises, others be hyred for wages, and be called seruants, or seruing men and womenThe sonnes of freemen of London are also free by byrth, according to the custome. throughout the whole Realme, which be not in such bondage as apprentises, but serue for the time for dayly ministerie, as serui and ancillae did in the time of gentilitie, and be for other matters in libertie as ful frée men and women.

But all seruants, labourers, and others not maried, must serue by the yeare: and if he be in couenāt, he may not depart out of his seruice without his masters licēce, and he must geue his master warning that hee will depart, one quarter of a yeare before the terme of ye yeare expireth, or els he shall be compelled to serue out another yeare. And if any young man vnmaried be without seruice, he shalbe compelled to get him a master, whom he must serue for that yeare, or els he shall be punished with stockes and whipping, as an idle vagabond. And if any man, maried or vnmaried, not hauing rent or liuing sufficient to maintaine himselfe, doe liue so idlie, he is enquired of, and sometime sent to the gaole, sometime otherwise punished as a sturdie vagabond: so much our policie doeth abhorre idlenes. This is one of the chiefe charges of the Justices of peace in euery shire. It is taken for vngentlenes and dishonor, and a shew of enmitie, if any gentleman doe take another gentlemans seruant (although his master hath put him away) without some certificate from his master, either by word or writing, that he hath discharged him of his seruice. That which is spoken of men seruants, the same is also spokē of women seruants. So that all youth that hath not sufficient reuenues to maintaine it selfe, must néedes with vs serue, and y• after an order as I haue written. Thus necessity & want of bondmen hath made men to vse frée men as bondmen to al seruile seruices: but yet more liberally and fréely, and with a more equalitie and moderation, [Page] than in time of gentilitie slaues and bondmen were wont to bee vsed, as I haue said before. This first and latter fashion of temporall seruitude, and vpon paction is vsed in such countries, as haue left off the old accustomed manner of seruauntes, slaues, bondmen, and bondwomen, which was in vse before they had receiued the Christian faith. Some after one sort, and some either more or lesse rigorouslie, according as the nature of the people is enclined, or hath deuised amongst themselues for the necessitie of seruice.

Of the court which is Spirituall or Ecclesiasticall, and in the booke of Law, Court Christian, Curia Christianitatis. CHAP. 11.

THe Archbishops and Bishops haue a certaine peculiar iurisdiction vnto them especially in four manner of causes: Testamentes and legations, Tithes and mortuaries, mariage and adulterie or fornication, and also of such thinges as appertaine to orders amongest themselues and matters concerning religion. For as it doth appeare, our ancestors hauing the commonwealth before ordeined and set in frame, when they did agrée to receaue 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 thinges in kéeping whereof they made conscience, they committed to them to bee ordered and gouerned as such thinges 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 these matters [Page] be ordered in their Courtes, and after the fashion and maner of the law ciuill or rather common by citation. libell, contestationem litis, examination of witnesses priuily, 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 dèfinitiua, and so they haue other names, as Proctor, Aduocates, Assessors, Ordinaries, and Commissaries, &c. farre from the maner of our order in the common law of Englande, and from that fashion which I haue shewed you before. Wherefore if I say the Testament is false and forged, I must sue in the spirituall Law, 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 haeres, or bonorum 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 Spiritual, be so diuided, that whosoeuer sueth for any thing to Rome or in any spirituall court for that cause or action which may bee pleaded in the temporall Court of the Realme, by an olde lawe of Englande hee falleth into a premunire, that is, he forfetteth all his goods to the Prince, and his bodie to remaine in Prison during the Princes pleasure: and not that onely, but the Judge, the Scribe, the Procurer and Assessor which receiueth and doth maintaine that vsurped pleading, doth incur the same daunger. Whether the word premuniri doth betoken that the authoritie & iurisdiction of the Realme is prouided for before, and defended by that Law, and therefore it hath that name praemunire or praemuniri, or because that by that Lawe such an attemptor hath had warning giuen before to him of the daunger into which he falleth by such attempt, and then praemunire is barbarouslie written for praemonere, praemoneri (as some [Page] men haue helde opinion) I wil not define, the effect is as I haue declared: and the Lawe was first made in king Richard the secondes time, and is the remedie which is vsed when the spirituall iurisdiction will goe about to encroach 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 forraine court, and differeth from the policie and manner of gouernment of the Realme, and is an other court (as appeareth by the acte and writ of praemunire,) than curia regis aut reginae: Yet at this present this court as well as others, hath her force, power, authoritie, rule and iurisdiction, from the royall maiestie, and the crowne of England, & from no other forrain potentate or power vnder God, which being graunted (as in déede it is true) it may now appeare thy some reason that the first statute of praemunire whereof I haue spoken, hath now no place in England, séeing there is no pleading alibi quam in curia regis ac reginae.

I haue declared summarilie as it were in a chart or mappe, or as Aristotle termeth it [...] the forme and manner of gouernement of Englande and the policie thereof, and sette before your eies the principall pointes wherein it doth differ from the policie or gouernement at this time vsed in Fraunce, Italie, Spaine, Germanie and all other Countries, which do follow the ciuill Law of the Romanes compyled by Iustinian into his pandectes and code: not in that sort as Plato made his common wealth, or Xenophon his kingdome of Persia, nor as Sir Thomas More his vtopia being fayned commonwealths, such as neuer was nor neuer shall be, vaine imaginations, phantasies of Philosophers to occupie the time, and to exercise their wits: but so as England standeth, and is gouerned at this day the xxviij. of March Anno 1565. in the vij. [Page] 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 yeare 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 hold, hauing then raigned foure yeares. So that whether I writ true or not, it is easie to bee séene with eies (as a man would say) and felt with handes. Wherefore this being as a proiect or table of a common wealth truly laid before you, not fained by putting a case: let vs compare it with common wealthes, which be at this day in esse, or do remaine described in true histories, especially in such pointes wherein the one differeth from the other, to sée who hath taken 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 and hath good wil to serue the Prince and the common wealth in giuing counsell for the better administration therof.

Thomas Smith.

[Page]

Information about this book

Title statement

The common-vvelth of England and the maner of gouernment thereof. Compiled by the honorable Sir Thomas Smith, Knight, Doctor of both lawes, and one of the principall secretaries vnto two most worthie princes, King Edward, and Queen Elizabeth: with new additions of the cheefe courts in England, the offices thereof, and their seuerall functions, by the sayd author: neuer before published. Seene and allowed.

Smith, Thomas, Sir, 1513-1577.

Edition statement

1589

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Text Creation Partnership,

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Ann Arbor, MI ; Oxford (UK) :

Date

2005-12 (EEBO-TCP Phase 1).

ID [DLPS]

A12535

ID [STC]

STC 22859

ID [STC]

ESTC S117744

ID [EEBO-CITATION]

99852954

ID [PROQUEST]

99852954

ID [VID]

18309

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Early English books online.

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(EEBO-TCP ; phase 1, no. A12535)

Transcribed from: (Early English Books Online ; image set 18309)

Images scanned from microfilm: (Early English books, 1475-1640 ; 354:8)

Source

— The common-vvelth of England and the maner of gouernment thereof. Compiled by the honorable Sir Thomas Smith, Knight, Doctor of both lawes, and one of the principall secretaries vnto two most worthie princes, King Edward, and Queen Elizabeth: with new additions of the cheefe courts in England, the offices thereof, and their seuerall functions, by the sayd author: neuer before published. Seene and allowed., Smith, Thomas, Sir, 1513-1577..

Extent

[4], 148 p.

Imprinted by Iohn Windet for Gregorie Seton, and are to be solde at his shoppe vnder Aldersgate,. At London :: 1589.. (Reproduction of the original in the Henry E. Huntington Library and Art Gallery.)

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