CHAP. I.

LAw is defined by our Au­thors and others, to be, that which commands those things which are to be done, Grot. de ju­bel. Sir Hen. Finch 1.and forbids their contraries; To be the rule of moral acts, obliging to what is right; An art of well ordering a civil society; It is the conservation of justice, which is, A constant and perpetual will to give every man his own. Bract. l. 1. c. 4. Just. instit. Therefore Cotta well de­nies Justice to be there where there is no right. The precepts of Law are (as Bracton) to live honestly, wrong no man, De nat. Deo. 1.give every man his own, These were the [Page 24]words of Justinian Instit. l 1. tit. 1. long before. The Law (saies the Glosse) intends onely this, That humane society, and that conjuncton without which men cannot live together, may most commodiously be conserved. This is its end. These precepts, or Laws comman­ding, our Saviour comprehends in one rule. Do as you would be done to. Jus is à Jovis nomine, Presidents have onely so much of Law, as they have of Justice Ch. Just. Hub. 270.. Those, and Laws are built upon reason and Justice, Law and Justice are insepa­ble. Force then, which is said to be, when any thing is done injustly, with no right, against the free will of another When a man requires his own, prosecutes his right, but not before the Judge, is not Law Bract. l. 4. c. 4., Force, and Law are opposites In Orot. pro P. Sex­tio.. Horace notes the fiercenesse of Aebilles thus, ‘See chap 2.137. here. Iura negat sibi nata, nihil non arrogat armis.’

By these two contraries (it is said) is humane life a great way distinguished from the life of beasis Cicero ubi supra. l. 4.. Arrians speak­ing of the Macedon kings say, non vi sed lege regnum tenuerant. The illustrious Viscount S. Alba [...] meant as much in his first Aphorism where he sayes in civil soci­ety [Page 25]either Law or force prevailes. In his judgement meer force (those are his words) is the fountain of in justice Augmtnt. scient. 690.. This of the Barbarian, That is most just in prosperous fortune, which is most forcible, is not so barbarous and abominable as another of a Pope Bulla Cle­ment. 13., sentencing the Templars thus, Although of right and Law we cannot, yet according to the fulnesse of our power, we condemn the said Order. As one, although you may with force rule your country and parents, and reform things amisse, yet is it unseasonable, especially when all changes portend slaughter, flight, and what else is histile Salust. 48. In our Law, Force is said to be (as before) when one de­mandeth that which he thinketh due to him not by a Judge, sometimes armed, sometimes not Bract. l. 4. c. 4.. We may read in our old Lawes. In the times of the Danish kings, right was buried in the realm (such are the words) the Lawes and customes slept together; in their time, wicked will, force, and violence rather reigned then judge­ment in the Land Ll. Edv. con [...]ss c. 16 de invenri­ [...]e murdri.. I would not be un­derstood to speak against publike force, such as arms the lawful Magistrate to act legally in the execution of the Laws, Thou shalt not kill, and that other Text, Whosoever shall shed the blood of man, do [Page 26]not tye up the hand of Justice. By several Statutes, which it would be tedi­ous to repeat, I might shew what opi­nion our Lawmakers had of injust force which onely deserves the name of force. The Statute forbidding Armour l. 7. E. 1., has these words, and all other force against our peace; Peace the contrary to force is the onely darling of the Law: another Sta­tute speaks thus, No man shall come be­fore the Iustices, or other of the Kings Mi­nisters doing their Office with force, &c. Except &c. and upon a cry made for arms to keep the peace 2 E. 3.. Power ought to fol­low the Law, not to go before it 3 Inst. 160.. As Britton. We will that all men rather use judgement then force Britt. 116; judgement and Peace go together. Fleta upon that command of the Statute Westm. the 1. That the peace of holy Church and of the Land be well kept, goes on in the words of the Statute (and it is a good conse­quence) That so common justice or right may be done to every man Fleta. l. 1. c. 29.. Britton unites Peace and Law (in another place) as fully, Peace says be cannot well be without Law fol. 1.. And indeed where force gets the authority and reputation of a Law, it is like the unnatural blaze of comets, whatsoever the height be, the effects are [Page 27]commonly fatal, more feare then love is given it. And as force cannot, as little can the Arbitrary will of man be Law, Laws cannot be just unlesse they be cer­tain. It is the best Law (says the illustri­ous Viscount) which leaves least to the arbitrarinesse of the Judge Aphorism 8.. We are Judges our selves of our own incon­stancy, how often we disagree with our selves, what repugnancies there are daily within us, how we are carryed away af­ter any thing that is new, and which we have not at all experienced, not seldome without repentance enough, commonly our wits being but afterwits, every man is his own Phaeton, his pas­sions and affections never so disorderly, oftner command then his reason, so that sometimes he is rather a Geryon or Chy­maera then one man. The first act of our understanding, which is a pure and simple apprehension, may want reason, it being not yet raised, and the soule as it is clogged, taking the beginning of it's understanding from the senses, it takes such impressions as are offered to them, and is not it self, rushes furiously and rashly upon things ill represented, and as ill understood, without any re­flexion upon Reason (which we call [Page 28]Judgement) or deliberation. And not seldome where the will is thus impetu­ous, force and violence are seconds to it. This made Aristotle say, That those who would have Law to rule the City, seem as if they would have God, and the Laws to rule, but those who would have man to rule, give the command to a beast. Not that he condemns Magistracy, which he often much magnifies, but that he would not attribute all things to men. By Law is understood natural Reason divinely in­fused, upon which is framed a certain form of living. By man, humane Au­thority. Such is my will, my pleasure, my affection, are words might become Ket's Camp, and his company of Go­vernours, They would sound horribly in a Judges mouth. Therefore Rinalde protests in Machiavel, That he would not esteem it worth much to live in that City, where men were of more power then the Lawes. Bragging of our own subtleties and contrivances is nothing to the pur­pose to make this invalid, too often we have our ends, and designes in them, which the Law doe's not allow, and hence grows our distaste, how often has the case of perpetuities been over ruled, it being against God and Nature, that [Page 29]things here should continue without change, where the change is just; and against reason that an estate should con­tinue in one family to the worlds end, in such manner that no owner at any time could either advance his younger issues, or pay debts out of it, but that those of the descendents capable, never so diso­bedient, and unnatural should take all; yet as if every man might make Lawes for his own patrimony, how lawlesse soever, and exploded, this perversnesse will not be given over, although accor­ding to the rule of that Reverend Chief Justice upon this case, Mens Policies are to be fitted to the Lawes, not the Lawes to their Policies; Sir Hen. Hub. 134. This writhing the Lawes Pigh. con­trov. Ratis. l. 3. as the Papists deal with the Scriptures which they make a nose of wax, is an impiety which Livies remembers with the neglect of the Gods, next it. lib. 2: A most reverend Bishop tells a Roman Adversa­ry, (as ill satisfied with our Lawes, as this State which made them was with the Treasons of his Order) That he is un­worthy to be indured in a Commonwealth held with Lawes, who departeth from them. Tort. Tort. 145. We read, That is lawfull which the Law of the twelve Tables and the Iulian Law permitteth, Wel. 7. si paciscat Dr &c. li. 1. D. de Just. & jur. and in the same Civill Law [Page 30]we say, That is lawfull which by the Laws the custome of our Ancestors and instituti­ons is allowed. Every thing we may or can doe is not lawfull, Cicero Philip. 13. in which sence Ʋlpian interprets that clause of the Edict Quod eius Licebit. And againe, that is lawfull which is permitted by the Lawes, to which is opposed unlawfull, and that is unlawfully done, which is done against the Lawes, Customes, &c. de legat. l. 3. Although the Romans, as the Spartanes from whom they are borrowers had their Customes unwritten which was Law approved onely by use; Quibus saepenumero, saies a Civilian, Gliscentibae perniciosissime (Laco­nes) errabant; Lexic. Ju. Ciu. tit. Lex. Yet to the end that nei­ther favour nor hatred might approach the tribunall, nor judgement be left to the arbitrary will of man, and that the Lawes might be made certain and noto­rious, the greatest part of the Roman Lawes were written, that no one (as is said) might doe and undoe, binde and loose at his pleasure; because of humane frailty, all men being liers, it is not safe to trust the Magistrate without a written rule as ano­ther. ibid. The Jewish Lawes of the Deca­logue by Gods cōmand were written, the Lawes of the Athenians were written, by which they are said to excell those of [Page 31] Sparta. ibid. The Republique commends highly the publishing the twelue Tables, then (as that) the Magistrates were con­strained to governe the Subjects follow­ing these Lawes, so that Equity and ar­bitrarines had not any place. Bod. de la Rep. Liure fixi­eme. Charendos chosen the Lawgiver of those of old Sy­baris, or new Thurium in Lucania now Bafilicata, chosen (so Diodorus) to pre­scribe them the manner how to live, having diligently looked over the Laws of other Nations, and digested the best into one body, commands in no sort to dipart from the words of the Law, or from the writing, à legis scripto; Biblioth. Li. xii. his reason is from the absurditie that private men should meddle (for this he reserves to the supream power) though things be amisse. He speakes not more to Magi­strates in his prohibition then to any others, but generally; nor of equity, both which Bodin would seeme to prove by this place. Republ. L. sixieme And although in a Court proper a Judge of Equitie is to be allow­ed, yet if it were allowed to all other Courts to expound the Law against the Letter, & perhaps meaning of the maker according to conscience as w [...] speak. E­quitie would, as more plausible, be every where cryed up, like Caesars consulship, [Page 32]the Law suspected in every case, as unjust (in time being lost in opinion) would weare out, and fall insensibly as use­lesse; and in all Courts there would be nothing but equity left, which aequum & bonum, or equity is in plaine termes no­thing else but absolute and arbitrary power. King Francis the first of France having subdued Savoy, and driven out Charles the second, the Duke; the new Magistrates substituted by him gave judgement according to equity, and of­ten against the Customes and Law writ­ten: the Estates of the Country were quickly wearie of this equity, they could finde no justice in it, and therefore Pe­tition the King, That those Judges might no more judge according to equity, which was nothing else (as the reporter) but to tie them, to fasten them to the Lawes without any variation ny sa, ny la, neither here nor there, a thing quite contrary to the passions (saies Bodin) of favourable Judges. Ʋbi supra. The mischiefes and oppressures done by Emps [...]n and Dudley are imputed to the Statute of King Henry the seventh, au­thorising to hear &c. offences committed against poenall Statutes, &c. According to discretion (not according to Law and Cu­stome of England) which the Lord Cooke [Page 33]seemes to dislike, 4. Just c. l. p. 40. yet which is the same, discretion is (so he) thus to be de­scribed— To discerne by Law what is Iustice. ibid 41. When a Jurie doubting the Law, has found the speciall matter the entrie is, and upon the whole matter, &c. They pray the discretion of the Judges, or the advice and discretion of the Justices in the premisses, &c. The Statute 3. of King Henry the eight of Sewers, allowes to make Statutes according to their owne wisedome and discretions, &c. which words are to be to be intended and interpreted according to Law and Justice. r. w. Kigh­leys c. It was resolved by all the Judges of the Court of Common Pleas, where a new Court was erected as in the 31. of King Henry the eight, To heare and determine according to Law and Custome, &c. or otherwise ac­cording to their sound discretions. That clause was against Law. 6. Jac. B. C. 4. Jnsti. 245. Miser scra­uitus ubi jus vagum, &c. Where Lawes are written, the Magistrate knows what to command, the people to obey; where it is otherwise, the Law must necessarily be Law errant, wandering, uncertaine, & unknown, (which is a miserable, nay, the most miserable slavery) and become nothing but shadow and name. Cicero makes it Justice to obey Lawes. de leg. 1. Ʋlpian will have Antiquitie to be instead of a [Page 34]law, or as a law, instead of a constitu­tion, instead of consent. Dictum. l. 1. sec. ult de aquae pluae arcend. Plinie Se­cundus writing to Trajane, (as the man­ner was when the case exceeded the termes of equity resulting from the law, to have recourse to the Emperour for advice) upon the Honourary, usual­ly given by the Buleutae or Decurions at their admittance into the Court. The Emperour answers him, (out of his religious as I may call it observation of the law) Whether all the Decurions chosen for every City of Bithynia should give it or no, generally he could not set downe. But (saith he) what I thinke to be most safe, is to follow the law of every City. Lib. 10. Epist. 13.14 To Plinie next question, whether the Cen­sours might choose into the Senate of one City, Citizens of other Cities, yet of the same Province; The Emperour writes backe, Ibid. Epist. 116. The authority of the law, and long custome usurped against the law, might draw thee divers waies: This tem­per pleaseth me, that for what is past we innovate in nothing, but that the Citizens of what Cities soever, although against the law taken in, continue, but for the time to come the Pompeian law be observed. Bracton with us would have that which use hath approved to be law: The Statute [Page 35]of Merton saies of the lawes of England, Hitherto used, and approved. The Court in the Lord Cooke uses that of the Em­perours Honorius and Arcadius. The usage, or manner of most faithfull an­tiquity is to be kept, Rep. 4. E­pist. & 78. there is the edict in Suetonius recited. This E­dict was a­gainst the Rethorici­ans by the Censours. Gell. l. 15. c. 11. vide Sueton. de Retor. Those things which are done besides the manner and cu­stome of our forefathers neither please nor seem right. But to make it more visible that antiquity ought to beget a reve­rence toward lawes. Let all Histories be searched, you will meete with them wheresoever you finde men civilized. Nay this as it showeth the antiquity be­yond all exception, so it makes the ne­cessity of law apparent; That notwith­standing the often intercourse of angels, and the daily and continuall messages by Prophets the watchmen of the Iewes, the great wisdome did not thinke it fit to leave them without lawes writ with the divine singer, and published by God himselfe, in which, as well as in their circumcision and rites of religion, they were preferred as in another glorious prerogative before all other nations. It is observed before the law of God, there is no mention of law, nor in any before Moses, nor in Orpheus, and Ho­mer [Page 36]since; the Greekes long after bor­rowed many things from the lawes of Moses, as the Romans again from them ten of their tables, (the other them­selves added, who could scarcely live twenty yeeres without a certaine law. Li. 2. sec. ex actis de­inde legibus. de orig jur. Solon cotemporary with Craesus and Gy­rus, is said to be the borrower, and Diodorus Siculus the authority vouched, Lexi. ju. civ. lit. Lex. who names Moses, l. 2. c. 5. but not as if hee knew him much; he speakes of his lawes which, saies he, he pretended to be given by Abiao Jao as the Greek, whom they call God; he tels us Solon travelled for the lawes of his Common­wealth; nay, and the most renowned of Greece for wisdome and learning, as Orpheus, Musaeus, Daedalus, Homer, Ly­curgus, Piato, and Pythagoras; but into Egypt Li. 2. c. 6., and again Lycurgus, Plato, and Solon brought many lawes taken from the Egyptians to their Common­wealths, by the most ancient friendship and mutuall traffick betwixt the Athe­nians the most ancient of the Ionians, and the Phaenicians, (from whom Linus and Orpheus are said to have received much Vid. Grot. Annot. in lib. de verit. 23.38.;) Nay by the affinity betwixt the Ionians & Phaenicians, from whom the Ionians had their letters, as the [Page 37]others theirs from the Iewes, whose tongue and dialect was the same with the old Hebrew Voss. G [...]ammat. l. 1. c. 10. Grot. dc. ver. annot. 15.16.: (besides there might be Proselytes amongst these Phaenicians; nay, some intermixture of Iewes especially neer Sidon, and Tyre.) The Greeks might easily come to the know­ledge of many things in the Iewish laws, (as Herodotus In Terp­sichore. 135..) The Phaenicians who came with Cadmus into Baeotia, brought into Greece, much learning, as also let­ters, the Ionians having learnt those letters of the Phaenicians used them with a little change. I have seen, saies the Historian, at Thebes of Baeotia in the Tem­ple of Ismenius Apollo Cadmean letters cut in certain Tripodes very like the Ionians. The Egyptians had their learning from the Patriarchs after Noah, chiefly from Abraham, Joseph, Moses, &c. who conversed with them as their posterity did after Vid. Men­tac Eccles. c. 3.. Before Ptolomy Philadelphus, and the translation by the Septuagint, it is reported that Theopompus an Historian inserted some­thing of the sacred Scriptures into his story, for which he was distracted, and continued so till it was spunged out Vt. Euseb. de p [...]aepar. Evang. c. 5. Hesi [...]d. in Theogon. Ovid. An [...]xagor as Epicharm. Plutarch.. The Greekes and the Romans in imita­tion of them, writ plainly of the chaos, [Page 38]creation, of God, whom they called the supreme mind, or divine understand­ing, that all things were made by his word, nay, and of the Dove sent out of the Arke, V. Grot. ib. sup. in li. 1. more directly to the purpose whence the Greekes had their Laws. The most ancient Attick Lawes had their originall from the Lawes of Moses, as appears by the Law of killing the night-Theefe. Gell. l. 20 c. 1. By that of the Heires Females. Thus in Terence his Phormio Act. 1. Seac. 2. Exo. 21.24 Levit. 24.19, 20. de Talione in Tabvlis..

He that will search for it (saies Gro­tius) shall find more, as the [...] from the Feast of the Tabernacles, that, that the High Priest should marrie only a Virgin—That after Sisters the next kinsmen were to inherit. Antiquity is a notion considerable, & makes thus much; that laws under which people for many ages flourished, which use and experi­ence have by a long prescription beyond all memorie of men approved, may bee thought essentiall parts, and we may say of them, as is said in Curtius of the [Page 39] Macedons, and their Alexander, Amis­so rege, nec volebant salvi esse, nec poterant. But some there are whose reason is im­plicite, though their faith be not, which here might be more tolerable, still cal­ling for reason (which I wish they knew when it stood before them) readie with­out more adoe, where they doe not un­derstand, where they find not the rea­son of things, to revile the Law, and cry out, it is without reason. It may be thought we are claiming the Libertie of the Quodlibets, where what we please may be disputed without any imputa­tion of slander or impictie, though never so absurde, foolish, or blasphe­mous, where the disputant used to be safe being armed with this title, and I con­ceive it ought now to be allowed to some. But to proceed, the wise and mo­dest cannot but know and consider it; that at this distance, and after so many ages, the reasons of constitutions ought not to be enquired after, otherwise ma­ny of those things which now are cer­taine would be subverted, as Suarez, The reason of the Legislator cannot alwayes be knowne. This I say of all Lawes, L. 2. de Legib. c. 14. all have certaine principles and founda­mentals to be granted, not now to bee [Page 40]disputed; humane Lawes are nothing else but rules by which Justice is taught; yet why this particular way of remedie should be laid for that part, or such a rule for another mischiefe (for no doubt they would desire remedies for mis­chiefes) which might have been and as properly (for there may bee severall meanes to one end) supplied another way, would be a very vaine thing now to seeke into; This is the opinion of those of the Civill Law, though they cannot as (they say) give a reason of all their fiore Fathers Institutions, Leg. non omzium. yet they will tell you, as they have cause for it, that there is reason enough in their Law, and that, obvious enough, to those that take paines to find it in their books; It has reason everywhere (saies Gentilis) l. 2. Epist. c 2. but not every where conspicuous, Alciat blames Bartolus for denying rea­son to be the essence of the Law, Alciat l. 1. de verb signif. what is said by Diodorus upon that Law of Charondas for the gardianship, protecti­on, and education of Orphans, may be said of all Lawes (when understood by long studie; for Revelation can doe no­thing here) The Law (of Orphans saies he) is full of grace and favour; but if any shall weigh, and interpret it, by the super­ficies [Page 41]and barke of the words, be will thinke but meanly of it; but whoso looks profound­ly and diligently into it, he that searches to the bonc and marrow, will judge it to bee made by the wisest counsell, worthy singular admiration. Biblioth. l. xii. The age of the Law of the Land, shewes its reasonablenesse; Curtius did not speake at randome where hee saies, nothing can be lasting which is not propped up by reason; the ground of the Law is as Saint German reason; the Petition of right has these words against reason, and the Franchises of the Land. The fifth of Rich. the 2. wills that the Barons of the Exchequer Doe right according as Law and Reason demandeth, the fourth of Edward the third hath Right and Reason. The mischiefe or dan­ger attending and going along with this prying and disquisition into the Lawes, is commonly a change of the Lawes, which is followed by a change of manners at least if that be all. Those busie Libertines, Extravagants, New-fangled Fantasticks, whose conceptions are so admirable, and who can so easily over-doe that which by the testimonies of all orders of Englishmen, of all ages (as I shall show in my next Chapters) has beene concluded to be most excel­lent, [Page 42]would serve their Countrey better, and show more care of its quiet and peace, if they would obey these Lawes alreadie setled, then by troubling them­selves & others in that which very likely neither themselves nor others shall be happie in, if it take effect; and how ever, ere this Goal be reached, too much must be ventured in the way, the multitude is not to be let lose for it, the rable ignobile vulgus, either in the Citie or Countrie have their Trades, their Husbandrie to attend to busie themselves in, those are their Artes, Laws, and Government, & policie are above them, Nan est consilium in vulgo, Mount Sinai wher the Law was given, was sanctified; God appointed bounds to be set about it, the people were not to touch the border of it, nor to come neer it. If this sweet and beautifull garden be over-grown with a few weeds, it would be no discretion to turn Herds of uncleane Swine in, to root them out. Some Chariotiers drive not easily, let the House bee fowle as Augeus Stables, we should not open the flood-gates of the deep; strike like Aeolus the den of the Windes, and pray in aide of the stormes and tempests, and the Sea it self to cleanse it, rather then the precious [Page 43] Pallas of their braines should not bee brought forth; Some new Lusinia or Ʋtopia might be found out, where with more innocencie their new Common­wealth might be set up. He that will judge, saies Aristotle, 2 Top.It is better to judge according to the Lawes, then out of a mans owne knowledge and sentence, (although a man out of knowledge may see clearly) yet I may say the Lawes have more eyes then Argus, they see with the eyes of many ages, with the eyes of all the most noble, most wise, & most learned Coun­sellers of State, and Judges of all the most judicious, pious, and peaceable Citizens of this our Countrey; The ig­norance of the Judge is the calamitie of the innocent, 2 Just. 30 So it must be here of the Law: I speak not of polishing, refining, or ad­ing to the Lawes to compleat them, where they are not full, & may be over­reached by the cunning of injust men, had not this been often done, the Lawes had not gained the perfection they have now attained; but I say, this is not to be expected, not to be pretended to in the street, where nothing but noise and clamour can be had, nor can he who re­moves the angular stones be said to re­paire. Aristotle thought that Lawes re­ceived [Page 44]were not to be changed, although there were some incommodiousnesse in in them. Pol. 2. And Cleon speaketh thus in Thucydides his sence and words, A Citie with the worst Lawes immoveable, is better then one with good Lawes not binding, (or as I may say, subject to to the capricious humors of every peevish, shallow trades­man, of every paultry Chafferer for smal Wares) and a plaine wit with modestie, is more profitable to the government then arro­gant dexterity. Thucyd. l. 3. In the glosse upon Justi­nians Institutions; to set up Lawes and pluck them downe is called a most perni­cious custome, in many places as there declared so by Plato and Demosthenes f. 28. The Lord Cooke his judgement of the Lawes of England is; That having been used, and approved from time to time, by men of most singular wisedome, un­derstanding, and experience to be good and profitable for the Commonwealth (as is there implied) they are not to be changed; P [...]af. to the 4. rep. To which purpose he recites there the resolution of all the Barons of England in the Statute of Merton, refu­sing (as the King and his Counsell doe, which the Lord Cooke 2 Just. 98. collects of them out of the 26 Epistle of Robert Bi­shop of Lincolne, to the Arch-Bishop of [Page 45] Canterbury) to legitimate the antenate or bastard eigne borne before marriage, with this reply in these termes; And all the Earles and Barons, with one voice an­swered, That they will not change the Lawes of England which hitherto are used and approved, Stat. Mert c. 9. what is lesse then change? the same Lord Cooke likes not correction of the Lawes; It is an old rule in Policie and Law, (so he) that correction of Law bee avoided, 4. rep. Pres.which some will thinke is over­done a streine too high, yet it has its reason: Lawes are the walls of Cities to be defended as walles, &no caution can be too much; like the Soveraigne of Mex­ico, they are not to be touched: But had our Laws or others been composed not only as they are by the most solid wisest heads of all the ages past, but by immediate conveiance from God himself, pronoun­ced with his own voice, or delivered by an Angell to us; One word Libertie, specious Libertie, more admired then understood, (with which of late Laws are idely imagined inconsistent) were enough to cancell and blot them all: I am unwilling to shew here how much and often, but how seldome to an honest end, (for the most part in the head of a mischief) this word, this found, or hand­some [Page 46]title (for it is no more) has been used: It is most true, all Lawes are in­consistent with this Liberty, as that's inconsistent with any Government whatsoever. The eminent Patron of it was a Jew, Judas of Galiles, author of the Sect who (as Josephus) L. 18. c. 2. agreed with the Pharises in other things, but on fire with the most constant Love of Liberty; they beleeve God is onely to be taken for their Lord and Prince, and wil more easily endure the most exquisit kinds of torments, together with the most deare to them, then to call any mortall Lord. If it might have beene permitted, they would have been free enough, no Tax, Tribute, Custumes, nor Imposition would they pay, but not out of that authority of Deutoronomy which is pre­tended, but no where to be seen, Non erit pendent vectigale, There shall not be any paying Tribute amongst the Sonnes of Israel. There are no such words, nor any to that sense, in any of the received languages [...]? are the Greeke words, as our English amongst the Daughters, and [...] in the place signifies, not one who payes Tribute, but one in­itiated in the mysteries of the Paganes, [Page 47]by them called sacred; Orig. Eccl. Tom. 1.1317. yet had this Heretick, as all others ever brag of it, Scripture authority from this Booke; Deut. 6. and with the words, Thou shalt feare the Lord thy God, and him onely shalt thou serve, he was fortified, which conclude nothing, Tribute being paid under the Law, as the price of redemption of the first borne, and in many other respects dispersed over the Law. To men too, and in relation to government, manifest by that in Samuel, 1 Sam. 17The man who killeth (Goliath) the King will make his fathers house free in Israel. This the Georim, and Epimicti, the Posterity of the Cananites, and of those which came up with them from Egypt did not onely pay, but the Israelites also, as is cleare by that text, and this, That Solomon made Jeroboam ruler over all the tribute, or burthen of the house of Joseph. 1 Reg. 11 As others were over the rest of the Tribes, Adomiram being said generally to be over the Tribute. c. 4.6. Though Judas inturning the people after him and his Libertie, as it is called, with his Sonnes perished, yet the dregges of his sedition were gathred together in the Castle of Massada, by Eliazar the Ne­phew of this Galilaean, with the same ob­stinacy not to call any man Lord; they [Page 48]had their beastly kennel fired about their cares, and after some exhortations to one another, not to esteem their lives a­bove their deare Liberty, they fall upon their owne swords. Joseph l. 7. c. 28. The Jewes of late have made some change with their bor­derers, with their next marchers, this as before is become Anabaptisme now, of which some of those of Rome, who will be any thing rather then stand out, where they may doe mischiefe fall not much shorter. Christ, as Cardinall Bel­larmine, freed his Apostles from all earth­ly subjection; So that therefore they were subject of fact, not of right. To passe by all these, there is not that fulnes in the word Liberty which is expected. Cicero makes it a power to live as we list, In Para­dox. which cannot be in any government or society, nor in any the most retired exile of our selves from mankind, if at any time we have the shortest com­merce or conversation with others. The institutions define liberty to be the natural faculty of any man to do what he pleases Justin. J [...]stit. 31., unlesse by force, or Law, he be for­bidden, which (as the glosse renders it) is a power given by nature, to do what we will, unlesse one more potent hinder us. As Scipio hindred Hannibal, yet was Han­nibal [Page 49]free still, Or that the civil Law of our country forbid us Et liber­tas.. Which last is explained thus: Cicero sees his destru­ction contrived by Clodius, and hanging over his head, he desires to preserve himselfe by prevention, and to kill Clodius, that he may free himself from the danger, but dares not (as I may say either reverencing the Lawes as a good and a just man, for he is injust who do's justly because of the penalty annexed to the Law) or fearing that penalty (as the words) yet is Cicero free; It goes on, We call that liberty which is just and consentaneous to the Laws, and therefore is subjoyned in the definition, Ʋnlesse any thing be forbidden by the Law In lib. 1. tit. 111.. So that plainly there he is a free man, who may do those things which the Laws permit him, which we cannot say of servants, meaning servants by the Civil Law, or Law of Nations, (after their conversion injoyned by St. Paul strictly to obey Ephes. 6. Coloss. 3.) Liberi free men are called so from Liberty, as servants from servitude, being opposites; Liberty in the proper, and strict sense, being spoke of the one, as servitude of the other; though now improperly other kinds of things may, and do come under those appellations. [Page 50]Such liberty then, as may be suffered by Laws, and amongst men incorporated in a government, is sufficient, (and whosoever will be displeased at it,) all that can be had Living under such a law (as ours shall be shown to be) where mens persons are free, and their estates (in which they have a propriety) unless in such cases whereby their publique of­fences, that freedom according to the plain words of known Law, is justly forfeited (as where the Jury in attaint are sentenced to lose their Frank Law 46. E. 3.22.) or in such cases where all the parts are to contribute to the good of the whole, as either to the maintenance of a warre undertaken by the publike and supreme power, or to the splendour of their home peace, which as it must certainly be of value, out of gratitude for the be­nefits injoyed under it, all are bound to, is Liberty, as the Magna Charta c 29.. No Free-man (so here is this liberty) shall be taken, or imprisoned, or disseised of his freehold, liberties or free Customes, nor be outlawed, banished, nor in any manner destroyed, &c. but by lawful judgement of his Peers, or by Law of the Land. Which is not waging of Law as a most learned Author would have it Tit. of Honour 1. edit. 344. This chapter [Page 51]of the Magna Charta is partly repeated in a later Statute 25. E. 3, 4 v. 5 E. 3.9 21. E. 3.3. v. V [...]. Abb. S. Alb. 143. and there Law of the Land is expounded, Indictment, Pro­cesse by Writ Original, and course of the Law; another Statute recites it, and in­stead of the words Law of the Land, puts in Processe of the Law, as equivalent, and Synonyma, signifying the same thing 37. E. 3.18., and again a Statute of that King says, No man shall answer without presentment, before the Justices, or matter of Record, or by due Processe and Writ Original according to the old Law of the Land 42. E. 3.3.. So we see the free man hemmed in with all his liberties and free customes, if he abuse them, if he be found guilty of a pub­like crime, or of any injustice, or wrong done to his neighbour, for which, ac­cording to the Law of the Land, and the judgement of his Peers, or equals, such liberty ought no longer to be his Sanctuary, then as having forfeited his birthright of the Law, he becomes a ser­vant, & (as the Statute) may be taken, im­prisoned, disseised of his free hold or liberties, Outlawd, or in any wised stroyed. The same Magna Charta wils c. 14., That no Freeman be amerced for a small offence, but ac­cording to the manner of that offence, &c. The Statute of Merton provides c. 10. That [Page 52]every Free man (which is legally free) who oweth suit to the County, Tithing, Hundred, or Wapentake, or to the Court of his Lord, &c. Here is the Free man again, yet indebted, he oweth suit, and is charge­able with those duties the Law has obliged him to, Legal liberty there may be, there ought to be, if these preten­ders ever turmoiling, and troubling others more peaceable, and modest then themselves, could overturn and alter government, as often as the unquiet Flo­rentines did theirs, could make it their perpetual motion, who changed ten time in a very few yeers Mach. Hist. 57.67 69.99 90.115.166.171.237., the proscri­ptions and slaughter of the best Citizens and the pangs and throwes of every change considered, This liberty would not be worth the blood she must swim through to her throne, and perhaps then there would be little liberty for any but those who conduct her thither: liberty (so this Historian upon the motions of his City) is oppressed by the name of liberty, Salust in his description of the Aborigines gives the best character of these lawless libertines in these words, They were a kind of savage wilde men, with­out Laws, without command, or government; free and loose, Such I take ours to be, and [Page 53]such their liberty, which may and will ever be pretended, but without extirpa­tion of all Religion, humanity, order, and civil policy can never be had. And if onely Cato's wise and just, or honest man be at liberty, and all wicked men slaves, and villains Plut. in Catone Ʋtic., I believe few of this Sect, let them move every stone they can, are likely to be free; man is a laby­rinth full of windings, let the outside be never so specious, and taking, it may be a great distance from the heart, there is no safety but in distrust; we should suspect every thing which our own ex­perience hath not assured us of, most of all when Lawes which are the heart, and vital parts in a Government are practi­sed upon, we idlely and fondly charge destiny, and the period and ruine of things upon fatal families, or boundary yeers, when the truest cause of the cala­mity is our own unworthy lightnesse. The reason why the Commonwealth of Sicyon survived the policie and Estates of all Greece besides, is made this; in seven hundred and forty yeers they never set forth new Edicts, nor went beyond any of their Laws, never exceeded them; all things below are in continual motion, have their infancy, their manhoood and [Page 54]old age, which is change, and death, their rise, and fall; yet as regular diet and temperance preserve the weakest most declining bodies, so although con­sidering the multitude of wicked men, and what may hurt without, no Go­vernment in judgement can subsist at all without the peculiar never failing assi­stance of the divine power, yet may good Laws well obeyed prop up, and keep off the fate of that, which else would tumble presently. And all things else would be more constant, if man were so.

CHAP. II.

AS wisdome goes, and must go, it has ever been easier to gain the reputation of wisdom, then of goodnesse. The good man was he who loved his Country more then him­self, who obeyed and reverenced the Laws for Justice sake, and if possibly, would not have outlived them, rather just then shiftingly politick. The an­swer to the question, Who was the good man, used to be, Qui leges juraque servat, he that kept the Laws. The Ancients of the greatest experience, and learning peaceably ever observed the Laws of [Page 56]their several Countries, neither were those of old Greece or Rome, more re­nowned for Philosophy or valour, then for this piety; it is notorious, how false that charge, of breach of the Laws a­gainst Socrates was, They who senten­ced him, erected a Socrates in brasse, in the most famous place of the City, a piece of Lysippus his workmanship Diog. lac.. Here though Caesar had won the field, Caeto was the Conquerour, and might well say, He had ever been more puissant then Caesar in right and justice Plut in catone utic. Plut in A. ristid. 623., and that his life was invincible. For this reason had Aristides that most illustrious title the just, a title given to that late victori­ous King Lewis the 13 of France, if ti­tles are specious from subdued Nations, as from Crete, Numidis, Africa, Asia, Dacia, &c.

How more illustrious is that by which is signifyed, not the Conquest of men, but of injustice, of that which is the enemy of men every where. Bastards, as Cardan would have it, are not there­fore wicked, but such says the illustri­ous Scaliger, which goe false, counter, and beyond what the Laws command Exerc. 265.. Those of Crotone (in the upper Cala­bre) protest they would sooner die, then mi­xing [Page 57]with the Bruty (those of the low­er) change into strange rights, manners, and Laws Liv. l. 24.. It is memorable what a Per­sian Collonel speaks to Themistoeles of Lawes, Stranger my friend, says he, The Laws, and Customes of men are different, some men esteem one thing honest, some ano­ther, but it is very bonest that every man [...]ep and observe those of his own Country Plut. in Themist., We are the most ingrateful of all men for those benefits we receive from our Laws, if we be not zealous for them, if we do not strive with all the world in that lawful glory of obeying Laws; we may call the Law of the land most sacred as reasonably, no doubt, as Justinian calls his so. I will shew how this, and all additions of dignity else are due to it. And now that we may not be asha­med of obedience, that we may not so much unman our selves to bespeak and worship an unknown Goddesse (though as short of what should be, as much im­perfect as the Fuller earth, and sea are crowded into a Globe, I will say short­er, so far am I from promising, and I be­lieve he that makes the next sally may be short; for it must be a great hazard, a great adventure to praise those things which no men could ever dispraise: if he [Page 58]that writ Trajanes Panegyrick could not do him full right, as I cannot think he did, what can be said of these Lawes, which had more then twenty Trajans for their founders, with their Senates of their worth, that if after the old trick you should call the Gods in, nothing could be got by the voucher; I say that we may not be ashamed of our obedi­ence to such Laws, I will show what they are, and which is the best demonstration, I will shew what this tree is by the fruit. The Law of England is that which is called Common Law of England, The Com­mon Law. ex­plained, and declared by judicial re­cords, and supplyed where the plainness of it cannot reach the injustice and de­ceits of men practised, in the later, more crafty and wicked ages, by that Law which is called Statute Law 1. Inst. 11 (besides which there are reasonable customs, &c.) The Common Law excelleth the Statute Laws, and may controle Statutes Hub. l. 5. E. 4 40.4. Inst. 42.3. Inst. 13.77 2. Inst. 526.588.518.11.6, 7, 8.. If (as the Lord Cooke) they be against com­mon right, or reason, repugnant, or impossi­ble Sir l. Dav. Pref. r. 8.118.: Dr. Cowel a Civilian yet very knowing in the Common Law, sayes, It is derived from the Law of nature, and of Nations, as well as any other Law, what­soever, consentaneous to Justice and reason Inst. Jur. Anglic. 25. Dav. rep. 30. Postrat.. [Page 59]As Moyle, We rule the Law according to the ancient course 33. H. 6.8.. And as Ashton there f. 9.. Where it hath been the use of all times to wage Law, and no other way, this proveth in a manner a positive Law, for all our Law is guided by Ʋse or Statute. And Prisot, where Ashton says this as a positive Law, says, it cannot be, for there cannot be a posi­tive Law but such as is judged or made by Statute. In the same Book Fortescue says, The Law is as I have said, and ever was since the Law began, though the reason be not ready in memory; yet by study and la­bour a man may finde it E. 5., and Markham a chiefe Justice f, 24 4.41. It is good for us to do according to the use before this time, and not to keep one day one way for one party, and and another day the contrary for the other party, and so the former presidents be suffici­ent for us, &c. And Ascue. Such a Char­ter hath been allowable in the time of our predecessors who were as sage, and learned as we be 37. H 6.22. 4 Inst. 165 Dact. 17., all Commissions of Justice use to run, according to Law and Custome of England, as of Oyer and Terminer, of Goal delivery, of the peace, &c. The Writs run, To take that Assize, or do that, &c. according to Law and custome Nat. Brev 186.118, &c., (there is Custome of the manner Na. B. 3., Custome of the City ibid. 22.) as Sir Iohn Davies in his [Page 60]Preface to his Reports, long experience, and many tryals of what was best for the Commonwealth begot the Common Law. This Law, as the Spartane Law and part of the Roman Law in imitation of them, is said to be unwritten, and preserved in the memory of the people, yet is there little of it (if there be any little) but may be found in the book Cases, the Romanes called their unwritten Law Custome, Custome (so they) approved by the manners of those who use it, obtaineth the force of a Law written Just. Inst. L. [...] 2.; and again, without writing that becometh a Law which use hath approved. For continual manners approved by the consent of those who use them, imitate Law Ʋbi sup.; this is matter of fact, and consisteth in use and practise onely, nor can it be created by Charter or Parliament. for as the same Sir Iohn Davies Ʋbi sup., when a reasonable act done is found agreeable to the nature of a people, who use it, and practise it again by iteration, it becometh Law, and as he goes on, this custumary law is the most perfect, and most excellent (every man in reason will grant this) to make, and preserve a Commonwealth; For lawes made (still he speaks) either by Edicts of Princes, or Councels of estates, are imposed upon the [Page 61]subject before any tryall made, whether the same be fit, and agreeable to the nature and disposition of the people, or whether they will breed any inconvenience or no; but a custome never bindeth till it hath been tryed and ap­proved time out of minde, during which no inconuenience did arise, for if it had been found inconvenient, it had been used no longer, but had been interrupted, and so had lost the vertue of a Law: This is declared to be so by the Lords and Commons in Parliament, in the 25 yeare of King Henry the eight, which I shall cite be­low; and if the Judgements and Decla­rations of Parliaments be not regarded, I know not what can give satisfaction. Vid. 3. c. Ancient liberties and customes which have been usitatae & approbatae, used and approved, c. 9. Stat. Mert. make the Common law. The statute called dictum de Kenelworth, speakes thus, the party convict shall have judgement according to the custome of the land. 57 Hen. 3. c. 25. The 27 of King Edw. the first of Fines.—Contrary to the lawes of our Realme of ancient time used. The (34 of the same King confirmes to all Clerks and Laymen their lawes (liberties and free customes as largely and wholely as they have used to have the same, at any time when they had them best; c. 4.law and custome of the [Page 62]Realme are made the same. 1. E. 2.34. E. 3. Abjuration is called custome of the Realme. 9. E. 2. c. 10. The 25 of King Edward the third saies, Accor­ding to be lawes of the land of old time used. C. 2. The title of the 27 of this King speaks in maintenance of the lawes and usages; the Statute 36 of the same King, —Lawes, Customes, and Statutes. C. 15. Sta­tute 42. according to the old law. C. 3. In the time of Richard the second, Law and usage are the same. 1 R. 2. c. 2. It would be tedious to heap up more of this kinde; I will only adde the declaration of the Houses of Parliament in the time of Henry the eight, which is thus; Their words be­ing directed to that King. This your Graces realme, &c. hath been, and is free, from subjection to any mans lawes, but only to such as have been devised, made, and ordeined within this realme for the wealth of the same, or to such other as by the sufferance of your Grace, and your Progenitors the people of this your realme have taken at their free liberty by their owne consent to be used amongst them, and have bound themselves by long use to the observance of the same, &c. as to the customed and ancient lawes of this realme, originally established as laws of the same, by the said sufferance, consents, and custome, and none otherwise. 25. Hen. 8. c. 21. Now if [Page 63]what the people of England have taken up out of long use, custome and consent be not good, agreeable, and convenient after so much and so long triall, they would appear the most foolish of all people; They would not deserve that free liberty which themselves by their repraesentors tell us at the submitting to and taking these lawes they had; and if they be good, agreeable, and convenient, they would appeare the most foolish of all people by their change. No lawes ever were, or can be made with more equity then these, to which besides use, and custom, and experience, free liberty, and consent of those who were to ob­serve them gave life. There is cu­stome of Courts which is law too, part of the Common law; Plowd. Com. 320. as the Statute of Kenelworth. — If any man shall take revenge because of the late stirres, be shall be punished according to the custome of the Court, &c. C. 26. Six times is the Common law called by Littleton common right; It is sometimes called right, sometimes justice. Mirc. c. 2 Sec. 16. Fleta 6. c. 1. Mag. Ch. c. 29. Magna charta calls it, justi­ciam vel rectum, justice or right.— Westm. 1. Common right, and the King wills, (these are the words) That the peace of holy Church, and of the land bee [Page 64]well kept in all points, and that common right be done to all, as well to poore as rich, &c. later statutes have— Justice, and right, 1. R. 2. c. 2.full justice, and right, 2. H. 4.1.good justice, and even right. 7. H. 4. c. 1.Common droi­ture in a statute West. 1. c. 1. is rendred, Justice according to the law and custome of England, 2 Just. 161. called common right, (as the Lord Cooke Because the common law is the best, and most common birth-right the Subject hath, for the safegard and defence, not only of goods, lands, and revenues, but of his wife and children, body, life, and fame also. 1 Just. 142 2 Just. 56. That which is called common right in the se­cond of King Edward the third. C. 8. In the first of that King C. 14. is called common law; Not onely as Fortescue, doe the lawes of England favour liberty. C. 42. But they are notioned by the word. The word liberties in Magna Charta, signifie the lawes; C. 1.29. and in that respect is the great charter called the charter of the liberties. 2 Just. 47 The Statute de Tallagio non concedendo, has these words, — That all the Clerkes and Laymen of our realme, have all their lawes, liberties, and free customes, &c. C. 4. In the 38 of Edward the third, the Laws are called Franchises, in the old Bookes the great Charter (the fountain [Page 65]of all our Just. 81. Foundamentall Lawes) is called the Charter of Franchises, the com­mon Liberty, the Liberties of England, Bract. 291 414. Pleta. l. 2. c. 48 Brit. 178 because (so the Lord Cooke) they make frecmen. 1 Jnst. 1 The customes of England bring a freedome with them; therefore in Magna Charta are they called Free Cu­stomes, 2 Just. 47. Mag. Char. c. 29. the Courts of Justice are also cal­led Liberties, because in them, as the same book, the Law which maketh free-men is administred; Mich. 17. Epist. 1. in com. berot. 221. 2. 2 Jnst. 4. the Law then is Liberty it selfe, Liberty and Law are convertible, nor is this Liberty titular onely, and a Liberty of words. In the expressions of the Petition of right out of Magna Charta (cited in the first Chapter) and out of the 28 of Edward the third, No free man shall be taken, imprisoned, or dis­seased &c. but by lawfull judgement, or by Law of the land; and no man of what e­state or condition soever shall be put out of his lands, or tenements, nor taken, impriso­ned, nor dis-herited, nor brought to death, without being brought to answer by due pro­cess of Law, which is as after in that Pe­tition of right either Customes of Eng­land, or Acts of Parliament. 3 Car. Reg The Lord Chancellours oath is thus, That he shall doe right to all manner of people, poore and rich, according to the lawes and usages of [Page 66]the Realme: 10. R. 2. rot. Parl. 8. The Barons of the Exche­quer sweare, no mans right to disturbe, let or respite, contrary to the lawes of the land, 4. Jnsti: 109. which must be meant of the knowne, and certain Law of the Land called in Magna Charta, Legemterrae, upon which all Commissions are grounded wherein is the clause, to do what belongeth to Justice according to law and custome of England. 2. Jnsti. 51. The illustrious Viscount of St Albane, amongst his Aphorismes of universall Justice, has this, Let no Court deale in ca­ses capitall (our Lawes say Civill too) but out of a knowne and certaine law; God denounced death, then he inflicted it; nor is any mans life to be taken away, who knew not first he had sinned against it. Augm. scient. 402. By this Law of the Land, although there is not nor cannot be any liberty which should protect the transgressors of it, yet have all Offenders a legal tryall, nor are pos­sessours of the worst faith, thrown out without the hand of the Law, onely a­gainst those who attempt to subvert or weaken the Lawes, there is a Writ to the Sheriffe in nature of a Commission, to take the impugners and to bring them (as the Register) to the Gaole of Newgate. Regist. 64 2. Justi. 53. This, as the Lord Cooke, is lex terrae; The Law of England, to take a man without [Page 67]answer, or summons in this case, and the reason given is — He that would sub­vert all Lawes, deserves not the benefit of any. Amongst the articles exhibited to King Henry the eight, against Cardi­nall Wolsey, he is charged with oppres­sion in imprisoning Sir John Stanly, and forcing him to release a farme taken by Covent Seale, of the Abbot of Chester, &c. (as the words) by his power and might; Artic. 38. And that he threatned the Judges to make them deferre judgement: Artic. 39 that he granted many Injunctions, the parties not called, nor any bill put in, by which diverse were cast out of their possessions of their Lands and Tenements. Artic. 21. The close was, That by his cruelty, iniquity, and partiality, he hath subverted the due course and order of the lawes. His Inditement went higher, and accused him, That he intended the most ancient lawes of England wholly to subvert & weaken, and this whole Realme of England, and the people of the same, to the Lawes Imperiall, commonly called the Civill Lawes, and to their Ca­nons, for ever to subiugate, &c. Mich. 21. H. 8. Coram Rege. Now al­though the Civill Law deserves as much honour as can be given it, and com­mands, and is obeyed much abroad, yet this Law of the Land held the possession [Page 68]here by a long unquestionable prescrip­tion, and after the tryall of many ages, got the affection of the people, (whose fathers grew up happily under it) which was not easily to be removed, the rather because seldome doth any Nation, wil­lingly submit to, or welcome the Cu­stomes and Laws of another, which they have not been acquainted with, and our Judges who wil not (in our Books) part with one of its Maximes; 2. Jnst it. 210. would not have fallen downe before the shrive of any unknown Themis, and have offered up the whole tables. It were no hard matter to heape up testimonies, Ʋid. chap. 3, if some would thinke it lawfull to trust men in their owne arts or professions, and can it not but be more reasonable, that such should be heard in the defensive, then that those who professe full Hostilitie, bringing with them onely mistakes of their owne prejudice, should sit Judges of the tryal which is in their own cause, and if thus far the reines be given to tur­bulent desperate spirits, every thing how sacred soever may be arraigned at these tribunalls, the articles of our faith will quickly totter, nor will any principle be safe: This discent will be fatall, there being no stay in the precipice, the bot­tome [Page 69]onely must receive men, where he that falls is crushed to pieces, & what is worse, those unhappy ones who follow, cannot see their danger. Thus we have seen what the common Law, the Liberty and Franchise of the free people of Eng­land, the law of the land is; The law of antient time, d. 27. E. 1.of old time used, 25. E. [...].the old law, 42. E. 3. for ages according to the judge­ment of these Parliaments makes the law more venerable, it is an addition of honour to it. Now it followes in order to speake something of the Antiquity of this law. The Anti­quity of the Law. But as the beginnings of things sometimes are rather guessed at then knowne; it is no wonder that there should be no generall agreement here of opinions: some will make the Law a Colossus of the Sun, knocking the Starres with its head, more ancient then the Dipthera or Evanders mother, others a late small spark struck from the clashing of the Norman Swords, the child rather of Bellona then Jove, terri­ble in the Cradle, the truth being mistaken by both. To relye upon the authority of a Chancelour or rather chiefe Justice in the time of King Henry the sixth, upon which the r. 2. Epi. r. 6. Epist. antiquity should be raised, was lesse then that of [Page 70] Aventine, who professed History, where after a prodigious linke of German Kings, before the Arcadian Moone, he will needs bring his Dutch to the Wars of Troy, which he proves out of the laws of Charles the 4. (who lived lesse then two hundred yeare before Aventine, and some three hundred yeares before us) from which he is peremptory there must be no appeal, Boicar. Hist. 49. for a great Lawyer (con­tinually imployed in the publick af­faires, or in his study where his many volumes upon the law show the whole man might well be taken up,) to faile in a piece of History, if he may justly be said to faile this way, who onely trusted another who was carelesse. It is no ble­mish, such as can deserve the censorian rod of our Criticks, besides all men love to consecrate their originalls—This is allowed to antiquity (saies Livie) mixing things humane with divine, to make the beginnings of Cities more majestick, and we may say as he doth of his Rome, of our Lawes, if it be lawfull to canonize any, to carry them up to Heaven, or fetch them downe from thence, that glory alone is due (though it needs not) to the most sacred lawes of the land. Sir John Fortescue his words [Page 71]are to this effect, That if the lawes of Eng­land had not bin most excellent, the Ro­mans (who cry up their Civill Law) Saxons, Danes, or Normans, had altered them; de lg. Ang l. c. 17. by which our Lawes must be Brittish at least, and our Saxon Fathers who beat the Brittaines or Welsh, out of their owne inheritance into the parts they now inhabit, must be supposed far­ther (which is strange) to rob them of their Lawes, as men who had not wit nor reason to keep peaceably what they had gotten, without the helpe of their policie and order, whom they had over­come. Caesar if he did but first show Brit­tannie to the world, did that as Eutropi­us. L. 6. He made the Brittaines tributary to the Romans, whose name was unknown to them before, as Strabo, twice he was victorious, and returned with Hostages, a great number of Slaves and much prey. L. 4. Brittanny was not known to be an Island till the comming of Julius A­gricola Proprator hither 39.66. as Suetonious of Caesar, aggressus Britannos ignototantea, none of these commend their Civilitie, none of them mention their Laws. Herodianus in severe. They went naked according to the cuts in M. Speed, their skins painted (whence they had their name) in the shape of all sorts [Page 72]of creatures, and gashed, ignorant of gardens, and of tillage; Strabo ubi sup. Inoulti omnes, saies Mela, whom no long peace saies Tacitus since Claudius who was here in person, & disarmed them (about 150 yeares after Caesar) had softned, like the Gaules, but more simple and barbarous; Woods were their Cities, their Cattle and themselves lodged under one roofe. Strabo u­bi supra. Heredian who writes thus of the Brit­taines, lived and wrote probably 240 yeares at least after the Incarnation, and about 50 yeares after King Lucius or more; So that it would be very strange that such lawes as ours which yeeld not to the best in Christendome for good­nesse, should have such a Cradle; It would be inquired what lawes the wild Rovers of Laboradora or Cafariae have set forth, as little civilized, and living much after the rate. It is scarce possible too out of Tacitus, that there could be any Common Law amongst them; here­tofore saies he, they were governed by Kings, now they are drawne by petty Princes, into partialities and factions, &c. they have no common counsel together, seldome it chanceth that two or three States meet, and concurre to repulse the common danger. Invi ta Jul. Agri. The first Lawes we find here in use, were the Ci­vill [Page 73]Lawes of Rome imposed upon the people, as the Romans imposed their power: And had that Epistle of Eleu­therius the Bishop of Rome (unheard of till 1000. yeeres after Eleutherius) to Lucius, or Liever Maur, been no forged piece, which not onely in the unhappi­nesse of the Synchronisme, or mistake in the yeares of our Saviour, not agreeing with the Pontificate of Eleu­therius, but by Manutenere a Norman-Latine word used in it, and since crept into our Law, it is convinced to bee: D. Hen. Spelm Con­cil. 35.36. yet what needs King Lucius to send for the Imperiall Roman Lawes, which were setled here before, and no question onely in use here then. Liever Maur being no free King, nor of the whole, but of the Joeni alone, called after the Kingdome of the Eastangles, now Nor­folk and Suffolke, meerly a Substitute of the Lords of Rome, like a Tetrarch if so much, ever fettered in those chains they had put upon him. From the time of Claudius the Emperor, who sub­dued neere all Britaine, the Roman Lawes prevailed even amongst the Bri­gantes, those of Yorkeshire North at Yorke, another way amongst the Silures, or those of Caer Ʋske in Munmouthshire, [Page 74]and amongst the Cornavii at Deva, Caer Leon Vaur, now Chester, in all the Co­lonies were set up the Roman Courts and Tribunals. About an hundred years before Liever-Maur, Tacitus, relating what happened in the Colony of Ca­molodunum amongst the Trinobantes, now Maldon in Essex, under Suetonius Paulinus, sayes, Strange noyses were heard in the Courts, Ann. l. 4. as Dio. In the Court was heard a barbarous murmure with much laughter, Die l. 62. and Eutropius sayes, a strange Colony is brought to Camolodunum with aband of veterane souldiers, to be an aid against the rebellious, and imbue the confe­derates, to the offices or duties of the Lawes. Severus before his more Northern expe­dition, Camd. B [...]it. 338. has the same words. as Herodian relates, left his younger son Geta in the part of the Isle subject to the Romans Juridicundo re­bus (que) civilibus ut prae [...]sset, as it is transla­ted, H [...]od. l. 3. that he might look after the busi­nesse of the Lawes, of Justice, and the civill affairs. After the death of Liever Maur, so famous was that Tribunall of the Romans at Yorke that Papinian the most renowned Civilian of his owne, or many ages, sate Judge there: There did the Emperor Severus and Antonine set forth the Imperiall Constitution, [Page 75]called De rerum venditione, Cod. l. 3. tit. 32 as the most knowing Knight has observed. D Spelm. ubi sup. Agri­cola as Tacitus in his life tooke the noble mens sons, and instructed them in the liberall Sciences, preferring the wits of the Britains before the Students of the Gaules, as being now curious to attain the eloquence of the Romane language, whereas they lately rejected the speech; a likenesse of our Lawes with those of the Britaines is indeavoured to be pro­ved by that onely place in Caesars Com­mentaries, L. 6. where it is said, (but of the other Gauls, not of the Druydes, whose imployment was about things divine, Ibid. sacrifices publike and private, and who were interpreters of Religion, whose Discipline as there was found in Britanny) That if the wife be found guil­ty of the death of her husband she was burnt, as in our petty Treason. Caesars words are, The husbands (amongst the Gaules, which is no part of the Druyds Discipline, from whomsoever derived) have the power of life and death over their wives, (which is not Common Law) and when the Father of an illustrious Fa­mily (not any Gaule) dies, his kinsmen meet, and if there be any suspition of the death, inqurie into it, &c. and if it bee [Page 76]found, kill the wife, excruciated with fire, and all torments. Caesar where he speaks of the Britains, shewes strange marria­ges, Lib. 5. Ten or twelve of them (sayes hee) have commune wives amongst them, especi­ally brothers with brothers, and parents with their children. But many hundreds of years since all this, the Britains were very barbarous, and rude, so that hee who shall read the Lawes of Hoel Dha, or the good, In Sr. H. Spel. Coun­cells. neare one thousand years since Caesar, will have little reason to think our Common Law ran from any such fountaine; and it seems the old Lawes and Customes of this people were far worse, and more rude yet, all which lawes and uses (as the Proaeme) at Guyn upon Taff yn deeued, or at Twy guyn artaff, he abolished, Gloss. D. Spelm. tit. lex. Hoel. &c. è Pro­aem legum. and gave new laws to his Britains from the givers name called the Lawes of Hael Dha. Further, King Edward the first, who totally sub­dued Wales, in the Statute called Statu­tum Walliae, where he changes many of their old Lawes, by his words there makes it cleare, that the Lawes of Eng­land and of Wales could not be the same; for so there had been no change. The words are, The Lawes and Customes of those parts hitherto used, we have caused [Page 77]to be recited before us, and the Barons of our Realme, which having diligently heard, and fully understood (as it is fit were laws worse then those, there should be full understanding ere a change) certaine of them by the counsell of our Barons foresaid we have blotted out, certain we have suffered, and certaine corrected. Stat. Walliae, or of Rutl. 22 E. 1. Perhaps it was not thought fit after a new Conquest to make a thorough alteration of things too suddenly; yet was this a long Statute, and much of the Law of Eng­land imposed upon them by it. The 27. of King Henry the 8. swept all clean. That commands, that the Lawes, Ordinan­ces, and Statutes of this Realme of Eng­land for ever, and none othr Lawes, O rdi­nances, nor Statutes, shall be had, used, practised, and executed in the said Country and Dominion of Wales, &c. 27 H. 8. c. 26. The Saxons as M. Daniel, made such a sub­version of State as is seldome seen, the new retained nothing of the former, which held no other memory but that of its dissolution, scarce a City, Dwel­ling, River, Hill, or Mountain, which changed not names. The distance made by the rage of war, was so wide between the conquering and the conquered peo­ple, that nothing either of Laws, Rites, [Page 78]or Customes came to passe over unto us from the Britains, nor had our Ance­stors any thing from them but their Countrey. Hist. 9. But the Author of the patches to the Lawes of S^t Edward, though in Geoffrey of Monmouths strain goes full up to King Brute himself (of Geofferies begetting) speaking of the weekly Husting of London, sayes he—which was builded a long while agoe, like and after the manner, and in memory of old great Troy, and to this day it containeth in it selfe the Lawes, Rights, Dignities, Li­berties, and Royall Customes of old great Troy, Ll. S. Ed. c. 35. &c. which like the Phoenix lives in its ashes, and here (such is the kind­nesse of some of our quaint Authors) has overcome Greece in the grave, being more fruitfull in noble Colonies then her Enemy, so that it must be a very faire discent, where the pedigree is brought downe from old great Troy. As of old the Greek Lawes, so since the German Nations have overflowne Eu­rope, now are the German Institutions every where received and in force, sayes Grotius. De jure belli. &c. 133. As the Lombards, Burgundi­ans, Franks, Swevians, and Vandalls, and other the brothers and kinsmen of the Saxons seated themselves in I­taly, [Page 79]France, and Spain, and spread their Lawes where they over-ran, upon no other Title but that of the Sword; so did the Jutes, Angles, and Saxons plant themselves, and the customes of their first homes here, first as friends and al­lies invited in by the British King Vorti­gen, having lands, dwelling places given them to fight for the Countrey, they make a league with the Picts, the pub­like enemies, destroying those whom they were called in to protect, in which manner they setled themselves, leaving none of those amongst them, but such as were content with slavery: Their owne Countrey-man venerable Bede, borne 227. yeares after their landing, tells us, (comparing them to the Chal­deans, whom I choose to refer him to, who would know more) Bede hist. l. 1. c. 15. p. 59. their Lawes and Language, though themselves have suffered by their owne blood, by their fellow Tribes, the Danes and Nor­mans, some of those calamities which they made others feel, where time and age, and corruption gnawing, to which all things are subject, have not made a little change, continue in the maine to this day. These Nations so powred out of Germany retaining the rites and [Page 80]terms of their own Countries, all of the same manners and tongue. It com­meth to passe (as the most knowing Gloss. 435. Col. 1. knight) that there is so much conso­nancy betwixt us, and the Germans, French, Italians, Spaniards, and Sicili­ans; both in the Canon of the ancient lawes, and in the names of Magistrates, Officers, and Ministers of State; there­fore as he goes on. Let them brag that will of the antiquity of their municipal lawes, their beginnings can be had no where else. (Germany it is meant is the com­mon mother) The terms of art of some of these Nations got as far as Constan­tinople, amongst the Greeks, where we may finde [...] a Captain, from [...] a throng, [...] he that holds by knight service, from buccella a morsel, buccellarius is amongst the wise Goths of Spain thus used, [...] homage [...] is gelt, rent, tribute, &c. from the Saxon geld, [...] a bill, scedule, &c. and many more which Meursius in his Graeco, barbara, has collected; the most ancient laws of al these people, are the salic laws, nay & of all laws now compiled obtain­ing. These and the Franks who made them, were of Germany, so named from the River Sala in Frankenland, not from [Page 83] Franiker as Ortelius would have it, They were made in the third yeer of Phara­mond king of the Germane Franks 105 yeers before Justinian the Emperour, who published the Imperial Laws. The Author where he has no Latin puts in his Franko-Germanic of the Latin fashion. As William of Oangis, in the yeer 420 the Franks began to use Laws and did di­ctate their Laws by four Princes of their Nation, sala signifies in the Dutch an Hall, as with us, or Palace, whence are called law salic, manners-salic, vassals salic, which belong to the sale Hall or Palace, and as yet is to be seen the salic book, Salbuch in the German libraries like our Doomesday or Liber Agrarius here, says another, who tells us there of the Salian Franks (the Authors of this law) named so from the former river sea­ted on both sides of the Main, upon w^ch stands Francford the head of the Nation Boioar. hist l. 4.313. of whom and this Law is said before; what the best Authors write. In the same Salic Law are many words used in ours, as Campio, Forresta, Forrestarius, Sparuarius, Marcha, Veragelt; which is our were gild, &c. These Customes went with Pharamond eight yeers after into France, then after those of the [Page 84]western Gothes in Spain, the Burgundian Laws, the lawes called Alemaaic, Boian, and Frank, other then the Salic, were instituted by Thierry the first (son of [...]lo­dove who first became Christian) corre­cted by Clothaire and Childebert, and perfected by Dagobert. After follow the Lombards, who as they were a Colonie of the German Saxons, so are their lawes full of their and our Customes, agreeing together in many things yet Dn. Spel. gloss. 440.. When Austin the Monk was sent hither by Gregory the great to convert the Sax­ons in the yeer 597. (Not one hundred and fifty yeers after the entrance of the Saxons) he was commanded by him, to take interpreters with him out of France in his way Bede l. 1.25., and it was unlikely while the Saxons yet kept the language of their Countrimen, they should have forgot their Customes, contrary to the manner of all the other Tribes of that Nation. The first Saxon lawes writ by them after their Conquest are those of Ethelbert of Kent, the first Christian and Monarch then, which says Venera­ble Bede amongst the other good deeds he did his people set constitutions of right judgements according to the ex­ample of the Romans, with the Coun­sel [Page 85]or advice of his wise men, Mid srotera geþeat.

Which he commanded to be writ in English, and which are held (says he of his time long after Aetbelbert) to this day l. 2. c. 5.. These were short and rude like the age. Next are those of Ine the West-Saxon, those of Offa the Mercian Kings, of Alfred King of England foun­der (so Ingulphus) of the English po­licie, and order ever since observed, called by the book of Ramsie The renowned King Alfred founder of the English Laws. Who is first said by Master Lombard and others of the greatest name to have divided this land into Shires, Hundreds, and Tithings, &c. to establish jurisdiction in every of them Archaolog 15.; again it is said, he gave not onely lawes, but Magistrates, Shires, Hundreds; &c. which (so one place speaks) we have often observed Gloss. tit. Ll. Angl. Iugulph.. Though no man can ho­nour the sacred memory of this most glorious Prince more then my self, and I know viros magnos sequi est pena sapere, yet I cannot believe this. Malmesbury speaks onely of the Hundreds and Ty­things, the invention of which he at­tributes to this King de Gest. reg. c. 4.. He might (which the Glossary is once contented with) re­view [Page 86]the Lawes of Aethelbert, Ina, and Offa; transcribe and insert whatsoever was worthy into his lawes, and impose them upon the Angles, the English (generally as the Danes submitted to him) in which name the Jutes and Saxons were included; he might adde much, and polish what he found, being never idle, ever imployed for the good of his peo­ple, either in his Courts, and Councels of State, or in the head of his Army. But he that looks upon the lawes of King Ine will find enough to assure him that King Alfred laid not the first stones of the Government, which by whomso­ever laid, were laid before King Alfreds great Grandfather was born, there being neer 200 yeers betwixt these two kings Fasti Sa­vil. Not to recite the lawes upon offences, we read in the lawes of King Ine, of the Shire, the Alderman, and the Kings Al­derman. One law speaks thus: If any man shall let a thief escape, or hide the theft, &c. If he be an Alderman þolige hisscire he shall forfeit his Shire, &c Ll. Ina c. 36.. Another — If any man shall demand Justice or right before the Shireman (the Earle) or other Judge c. 8. v.c. 6.51. &c. The Proaeme. & mid eallum minum ealder mannum and with all my Aldermen the [Page 87]chapter of breach of the peace — In the Kings Town, Aldermans Town, Kings Thames Town, &c. c. 46. Thorold a Benefactor to Crowland Abby long be­fore King Alfred in two old Charters is called by King Kenulph Vice Comes Lin­coln, and by King Withlaf quondam Vic. Com. Lincoln, sometimes Sheriffe of Lincoln Concil. Sax 3 [...]8. Ingulph. 854.857.. Venerable Bede who flourished in the time of King Ina tells us, in the days of King Edwin King of the Nor­than hymbres, Paulinus the first Archbishop of Yorke converted to the Faith Blecca with his family Line cole ere szre ge­ƿefan Bede l. [...]. c. 16. l. 5. c. 4. p. 375.. The Gerefe of Lincoln and else­where says he, Hanwald the gesiþ (a word rendred comes) with his geref w^th his Sheriffe Aethelwine betrayed King Os­wine l 3. c. 14. l. 4.22. l. 5. c. 4 5.. Hundreds and Tythings are not named in the Lawes of the Kings, Ina or Aelfred. In King Ina's Laws pledges borgas are named, by which probably we may think Tythings to have been then: One Law— wills, if the geneat the husbandman (as now we speak) steal and run away, that the Lord pay the angild the price, &c. if he have no pledges Ll. Ina. c. 21. Ll Edg c. 6. Cnati. 19.27.35.. After the laws of King Ael­fred, those of Edward the Elder, of Ae­thelstone, Edmund, Edgar, Aetheldred, and [Page 88]of Cnut the Dane succeeded, all which were distinguished, and ranked under three heads. The first of the Weft-Saxons, under whom as united, and sub­mitted, were comprised the Saxons, ge­nerally caled ƿestseaxna laga the West Saxon Law. The second of the Mer­cians or Angles called Myrcna laga the Mercian law; the best and most select of which King Aelfred as before took in­to his laws, not rashly as he says in his Preface: He durst not (as his words are) because he knew not what the next age would like, set forth much of his own. What he did (still as he) pleased his wife men Praefat. in Ll. Alf., those of his Counsel. The Ðe [...]elaga was the last of these called the Danes law, of all which we may say as is observed out of Ovid.

Yet King Cnut as much resemblance as there was, lik't it not, out of all these laws he composed one Common Law which King Edward the Confessor observed Malmesb de gest. reg. l. 2. c. 11 [...] See here ch. 3.. His title says, The laws of [Page 89]St. Edward begin, quas in Anglia tenuit, which he held; Edward the third before the Conquest (as one) set forth one Com­mon Law, called the lawes of Edward to this day Ranulph, cester. l. 1. c. 550. Hov. 600. Ll. Ed c. 35. in Hoved., which because they were just, and honest (as the Paraphraste up­on the Laws of St. Edward) he recalled from the deep abysse, and delivered to be kept as his own. As another, he was the lawful restorer of the English laws Gemetic. l. 6. c 9. all this may be, he resto [...]ed them, and recalled them from the deep Abysse, they might be forgotten (dedicated as the Paraphrast speaks to oblivion wholly, but not as he addes from the time of King Edgar) in the reigns of Harold the first, and Hardicnut. Besides restoring and addition, he commanded this law should be kept as his own, and being a king of the Saxon blood, and falling last upon the work, it is no wonder that he should carry the name: I shall speak more of this in my third chapter. Hence from this time are our Laws called the Common laws, the same in substance with those in use since. The reason why our Saxon Books are so thin, and have so few lines in them, may be this. Our ancestors had their unwritten customes, such as they brought with them out of [Page 90] Germany, which (as since) lived, and were preserved in the memory of the people, V. c. 1. sup. Gless. D. Spelm. tit. Lex Lomb. as well as their laws written. After all this, as we finde in the lawes of Willi­am the I. there was a difference in the estimation, of men offending according to the customes of Provinces. Ll. Guil. 1 s. 3, 4. The punishment or mulct of breach of peace was forty shillings in the Mercian law, fifty in the West Saxon, &c. He that will looke into the Saxon lawes, will finde as clearly as can be, considering the distance made by so much time, which is but a distance of words, the fundamentall stones of the building, he shall finde freedome enough, and peace every where provided for, (in the words of those Lawes) the peace of God, of the Church, of Religion, &c. Lawes concerning Tythes and Church-rights, &c concerning Sacriledge, false Witnesse, Adultery, Incest, Fornicati­on, marrying a woman by force, Per­jury, Slander, Usury, Murder, Homi­cide where it is Chancemedly, Robbery, Theft, of the Fly-man or Theefe who runs for it, the receiver, him that is taken in the manner (Hondabend, and Backberend) Burglary, Clande­stine Sales, vouching to warrant what [Page 91]is sold, false rumours, counterfeiting money, change of goods, just weights, repaire of Castles, Townes, Bridges, High-wayes, waging Law, Outlawry, judging according to the dom bec. Vid. Ll. Ed. sen, c. 1. or Judgement book, (one of which as as Asserius Menevensis Bishop of Shir­burne, a familiar of King Aelfred, that King made, but it is lost,) concerning Appeales when Justice was denied in the Hundred, or too rigorously admini­stred, trespasses, wrongs, battery, af­fraies, incendiaries, the wife of a thief, pledges of good behaviour, amerce­ment of Townes for the escape of a Murderer, the injust Judge; those who will not serve, those who injustly trou­ble the Owner of Lands who has good title, those who change their place of abode, Merchants, rescue; in most offen­ces the punishment of a Freeman was pecuniary, or losse of Liberty, of a Slave by whipping. The reason of which M. Lambard makes, because of the rarenesse of offences then; See Ch. 3 fighting in the Kings Palace, breaking open hou­ses, and firing, robbery, open theft, and aebermorþ manifest killing, (murder, the same, and from whence our word murder cometh) and Treason against [Page 92]the Lord were capitall, could not be expiated with money. The Jury of twelve men is denied to be more antient then the Norman Conquest by M. Da­niel, In Will. 1. and Polydore Virgil, but with a great deal of bitter vehemence by the last, who sayes, there is no Religion in it, but in the number, with as much truth, as that the same King William brought in the Justices of Peace, or that Wardship be­gan with Henry the third, which King Johns Charter alone confutes, or that the Hotspur Lord Percy was taken alive at the battell of Shrewesbury, and lost his head by the axe, which are his rela­tions. That this Triall is of English Saxon discent, is manifest by the Laws of King Etheldred, ordained at VVana­ting, C. 4. which speak thus: In all Hun­deeds let Assemblies be, and twelve Free­men of the most antient together, cùm prae­posito, Ll. Ed. Sen. c. 5.11. in Saxon gerefa, with the Reeve of the Handred, shall sweare not to condemne the innocent, nor absolve the guilty. Lamb. in verbo Cen­tur. D. 5 [...]el. in Jura [...]a. Vid. C [...]a­sultum de M [...]ntic. Walliae, c. 3. The reason of the great silence of this in the Saxon times is, because the vulgar purgations, the Ordiles were every where then in use. The Norman who wrote the grand Customary, in the beginning of it sayes, [Page 93]the Confessor gave Lawes to the Nor­mans when he was amongst them, and in the first Chapter de Appella, he men­tions the Custome of England, to prove things by the credence of twelve men of the Neighbours or Visne. After all the ill Customes (so much decried in the Barons warres) taken away, and Sr. Edwards Lawes restored, and con­firmed in Magna Charta, the inquest of twelve continued, untouched, and ne­ver complained of, it was in use with the French in the age of Charlemaigne. D. Spelm. gless. verb. in Quaest. Vid. Gesta de villa no­villiaco post appen­dic. ad Fled­vardum. This Law of S. Edward I thinke is above all exception, and full to the thing—by which after a prohibition that no man buy a live beast, &c. without pledges, and good witnesses—is said, and if any man buy otherwise, &c. after the Justice shall inquire by Lagemen—(legall men) and by the best men of the Borough, Town, or Hundred, &c. C. 38. This trifler Po­lydore reviles our inquests by twelve as devised (so he) to oppresse men under the show of equity; and the Canoni­zers of Gunpowder Garnet, calumniate it as upstart and unjust. (Of these here­after.) For Polydore, sayes the excellent Sir Henry Savil, he was an Italian, a stranger, not conversant in our Com­monwealth, [Page 94]neither of much judgment nor wit, Epist. ad Eliz. Reg. snatching at things, and of­ten times setting downe what is false for the true. M. Selden bids all Readers in these things, or such like, to take heed of Polydore, and his fellowes; for (sayes he, and no man can say it better) out of carelesnesse being deceived, hee attributes many things to William as the Author, which it is most certain we owe to the most antient times of the Saxon Empire, &c. Notae in Ead. 194 Courts of Justice were erected before the Normans were heard of, as the Halmot or Court Baron. Ll. Ed. c. 23 Hen. 1. c. 10 The friborge or tithing called Ten­mentale in the North, by the Normans Frankepledge, a most excellent policy of State, and one great reason why when it was practised insurrections and theft are so seldome heard of; in the tything every nine men were pledges for the good bearing of the tenth; If the sub­stance thereof was performed as it ought (sayes M. Lambard) and as it may by Law, then should the peace of the Land be better maintained then it is. Office of Constab. 9. this Mr. Daniel affirmes. H [...]st. 38. By the due execution of this Law, as the Lord Cook, such peace was universally holden within this Realme, as no injuries, ho­micides, [Page 95]robberies, thefts, riots, tumults or other offences were committed, so as a man with a white wand might safely have ridden (before the Conquest) with much money about him, &c. 2 Inst. 35 few Suits, or causes of Suits must needs then be. The Hundred which was ten tyth­ings, a Germanie Institution, Gapit. Car. Calui apud siluacum. where every man was bound to attend, in the North called Wapentake, then the Try­thing, Thryhing, or Leet, the Jurisdicti­on of which extended over the third part of a Province, containing three or four Hundreds. Ll. Ed. c. 34. The County Court cal­led gerefas gemot the Sheriffs gemot (or Court) to be held by the Institution of King Edward the elder, every fourth weeke, where the Sheriff was to decide civill and prediall causes, and every sfraec (as there) plea, was to have an end at the day: Ll. Ed. sen. c. 11. The supreme Provin­ciall Court was the Sciregemot, or Shire Court, the same which now we call the Sheriffs turne, kept twice the yeare, where the Thanes or Noblesse were bound with the Freeholders to be pre­sent, the Bishop was Judge for Church-matters, and the Alderman (of whom below) for things secular; here was the Assembly of all the Hundreds, Ll. Eadg. c. 5. ll. Ae­thelst. m. s. c. 20. Il. Cnuti. c. 7 [...]. p. 2. here [Page 96]Causes Civill and Criminall were de­termined. This Court and its Jurisdi­ction was very ancient, being famous, and used in the same manner amongst the Franks and Lombards, as may be seen by their lawes. Ll. Car. & Lud. Im. l 4. c. 26. Car. m. Lom. l. 2. tit. 52. Ll. Aleman. tit. 36. VVilliam the first divided the Jurisdiction, and confined the Bishop with his Causes Ecclesiasti­call to a Court by himself, which were discussed in the Hundred and Court of the Shire before, which appears by that sanction of this King, directed to the Earls, Sheriffs, and all the French and English (so it speakes) who have lands in the Bishopricke of Remigius, Bishop of Lincolne, (though there onely the Hundred bee named) Not in eadm. 167. yet there is added—The Episcopall lawes which were not well kept nor accor­ding to precepts of holy Canons, &c. and (as this is recited elsewhere) They shall bring nothing to the Hundreds, or Judge­ment of secular men, M. S tab. Rob. Winch. Arch. Cant. in eadm. 168. and every secular Court is alike forbidden to Church­men by the Canons. In one or other of these Courts, in the lesse or greater, all causes were to be determined at mens homes, and at their owne doors, if the parties would rest there, no man ought to sue out of the County, to draw his [Page 97]Plea from thence without good cause, (which might be pretended then) and in every remove ought really to be now, as appears by the Tolt, Pone, Accedas ad Guriam, and Recordare. This good cause was, if the Suitor could not have Justice at home, or what he had was rigour, and summum jus, then might appeales be to the Palace, to the King there, (whose Court is called the High Court of Justice for law and equity) Ll. Aelfr. c. 38. Ll. Edg. c. 2.11. Cnuti. c. 16. after the manner of the ancient Jew­ish Commonwealth, a course observed sayes the most knowing Knight, all Eu­rope ore. Gloss. tit. Cancellaria. Our antient Kings (as he) swore before the Realm and the Priest­hood, right Judgement to doe in the Realme, and Justice to keep by counsell of the Peers of the Realme. Ll. Edu. Con. c. 16. viz. (In this Court) every City and Borough had their Courts, the Burgmote kept thrice the yeere, the Wardmote, the Husting, the most antient and supreme Court of the City of London, is of Saxon extract, which every Munday used to be held, now on Tuesday, yet does the stile still say held on Munday, Lin­colne, Winchester, Yorke and Shepey have their Hustings, it held Pleas as it does of things reall and mixt; Judges there [Page 98]were too in the manner we finde after the Normans, who changed only their name from Aldermen to Justices. There was the Alderman of all England (Chief Justice) as Ailwin Founder of the Church of Ramsey, was called upon his Tomb—The Kings Alderman (as the most knowing Knight thinks) Gloss. tit. Alderman­nus. like the Missi, In Ca­pit. Gar. m. & Franc. ll. as our Justices in Eire, or of Assize. The Alderman of the County Iesse then the Earle, but equall with the Bishop, which three sate together in the County, the Earle was to take care of the Commonwealth, the Bishop of the Church, the Alderman of the County, to declare and expound the law. Gloss. ibid. (Be­sides as to execution of publike Justice upon the contumacious, he might (which our Posse of the County resem­bles) use force, raise the people.) This difference is plaine in that law of King Aethelstane Be ƿerum—of the esti­mation of heads, P. 55. part 2 ll. v. ll. Jnae. c. 8 Faedus Re­gum Ae [...]fr. & Gath. m. s. in gless. citant. where the were gild or price of an Archbishop, and an Earls life (who are joyned as equall) is fif­teen thousand th [...]imsa—of a Bishops and Aldermans, who next follow, and are joyned, but eight thousand, &c. Sometimes the same things are said of both the Earle and Alderman, so that [Page 99]they may easily be thought in those pla­ces the same. This was a Salic Insti­tution to substitute thus, two or three under the Earle whom they called Sa­gibarons, as Ingulphus, who is altoge­ther for King Aelfred; King divided the Governours of Provinces, who before were called Vicedomini into two offices, into Judges, whom now we cal Justices, and into Sheriffs; yet he has in our Charter Bingulph a Vicedominus, (which Title the Justices yet in Ingulphus retai­ned) and Alferi a Sheriff. In An. 948. The Saxons had their Hold, or Heretoch, their Military Commander in every County. Places had their Bilaga by-lawes, (be­sides the Common Law) Law made by consent of Neighbours, now by the Ho­mage in a Court Baron, Suiters in the Leet, or view of Frankpledge, in towns by the Inhabitants and Neighbours, as M. Lamhard. The Saxons our Ancestors retained the manner of the old Ger­mans their owne Elders, who in Tacitus Jura per pagos vie [...]sque reddehant, made distribution of Justice not onely in one Towne, or in the Princes Palace, but also at sundry other speciall places within the Countrey, and (as he) tru­ly the Normans who invaded the Poste­rity [Page 100]of the same Saxons here, did not so much alter the substance, as the name of the Saxons order. Arch [...]ion. 89. But to satisfie those to whom the Normans may be as odious as their Conquest, (although perhaps they may be Normans them­selves, most likely descended by some Mother from them, and may seem as fond as if now at Millaine or Pavie, after so many hundred yeares they would indeavour to distinguish the Lombard, and Insubrian, the Insubrian Gaule from the Italian, in France the Gaule, and German-Franke in Spaine, the Carpetane and Wisigoth,) I say to satisfie them, I will prove by the testi­mony of those who lived then when this Norman change is imagined to be, that there was no such overturning of things as is believed. The Title of the Lawes, called the Lawes of King Wil­liam the first, published by M. Selden, with his learned Notes upon Eadmer, (and since with the Saxon Lawes) is this: These are the Lawes and Customes which William the King granted to the whole people of England after the Con­quest of the Land, these were those which the King Edward his Cousen beld before him. In these Lawes recited by Hoveden [Page 101]in the life of King Henry the second' King Edwards Lawes are confirmed in these words; This we command, That all men have and hold the Law of Edward the King in all things, together with those Lawes which we have added for the profit of the English. Pars Po­ster. 661. This Confirmation was not freely given, but in this man­ner—King William having heard the Lawes of the Danes and Normans, and approved them, — (as the Chronicle of Lichfield having approved the Lawes of those of Norfolke, Suffolke, Grantbridge, and Deira, &c.) he commanded they should be observed through the King­dome, as more just then any others, because himselfe and his Barons were Norwegians by extraction, (not a word is there of any resolution to introduce his Norman Laws,) this the English thought a more killing blow, then that of his Victory, they beseech him (and by the soule of King Edward, &c.) to per­mit them to injoy their owne ancient Laws and Customes, under which their Fathers lived, themselves were borne and bred up, to wit, the Lawes of holy King Edward, and they tell him, it could not but be ve­ry hard to receive Lawes unknowne, and to judge of those things they understood not. [Page 102] The Pa­raphrast of these Laws Chron. Lich. The King long resolute at last yeelds, and as these, with much authority were venerate, and through the whole Realme corroborate, and before other Lawes of the Realm, the Lawes of King Edward, not because he found them, but because be resto­red them, sayes Gemeticensis of the same age with King William. l c. 9. The Chroni­cle of Lichfield and Hoveden are more large, with which agrees the first Chap­ter of the Lawes of good King Edward, (thus it speaks) Which King William confirmed, all of them use neer the same expressions, By Precept of King Willi­am (say they) are elected out of every of the Counties of all England, twelve of the most wise men, who were injoyned before King William, that in what they might neither declining to the right hand, nor the left, in a direct way, they should lay open the Constitutions of their Laws and Customes, nothing omitting, nothing adding, no­thing out of prevarication changing: Hoved. 601 Chron. L [...]ch. ll. Ed. c. [...]. Further, yet in that Chronicle Aldred the Archbishop of Yorke (not Thomas Archbishop of Canterbury, as the Para­phrast would have it, there being no Thomas of that See, till lawlesse Beckets dayes, who as this, and Malmesbury) crowned him, Malms [...]. l. 3. [...] vita Pontific. and Hugh Bishop of [Page 103] London, by command of the king, writ with their own hands what the foresaid ju­rates said, from the laws of holy mother the Church beginning, &c. Ingulphus Secre­tary to William in Normandy, and after made Abbot of Crowland by him, is witnesse enough alone, and as he, I brought this time with me from London (where he had been about the businesse of his house) to my Monastery, the laws of the most just king Edward, which my Lord William the renowned king of Eng­land had proclaimed authentick, and per­petual, all England over to be kept, under most grievous penalties, & commended to his Iustices in the same tongue they were set forth Ingulph. p. ult. This proclamation was not all (to allay the stormes which perhaps the vi­olation of these laws had raised) for the good of peace, says an ancient Monk, He swears upon all the reliques of the Church of S. Albane, touching the hol, Gospel. Abot Fre­therick ministring the Oath, the good and approved ancient laws of the realm, which the holy and pious Kings of England his ancestors, and especially King Edward set forth inviolably to keep Vita Ab. S. A [...]b. 8. s. [...]0.. that the English laws were in use then, I can prove out of that famous plea of Pinnende [...]e be­twixt Lanfranck Archbishop of Canter­bury [Page 104]and Odo Bishop of Baieux, and Earl of Kent; there it is said, the King com­anded al the County without delay to sit & all the French of the County, & especially the English, in the antient laws & customes skilled to assemble Not. ad E [...]d. 198.William the 2. promises onely easie laws, justice, equity, and mer­cy, and laws desirable Hunting. l. 7.372. ead. 13. Ma Par. 14 Heved. in h. 1., which his suc­cessour Henry the first construes, (and there could be no other meaning) to be meant of these laws, he swears, To take away all the injustices, and oppressions of his brother, promises the good and holy laws to keep, and to strengthen the liberties and an­cient customes which flourished in the realm in the time of S. Edward the King Ead. 55. Malmsb. in Hen. 1.156 Ma. Pa. 55., and in his laws he says, The law of King Edw. I grant you, with those amendments, made by my father with the counsel of his Barons Ll. Hen 1. c. 2. Ma. Pa. 56., and in the same place, those things which hence forward shall be done, shall be amended secundum lagam, according to the law of King Edward; yet after he imposes a new law a medley, out of the salick, ripuarian, and other for­reign laws, with some pieces out of King Cnuts Danish laws, which were but a small time observed and could not take any thing from the lawes of King Edward, king Stephen confirms the laws in [Page 105]these words, all the liberties and good laws which Henry King of England my Ʋnkle granted them, and I grant them all the good laws, and good customes which they enjoyed in the reign of King Edward Ex lib. autiqu. Ll.. The Londoners request of Maetildis the Empresse, daughter of Hen. the 1. That they may be suffered to use the laws of Ed­ward, because (as they) they were the best, and not the laws of her father Henry, because they were grievous, which she re­fused, whence great commotions were made Florent. wig. in an. 11 42. cont., (which grievous laws certainly were that salic rapuarian Danish medly) and likely enough a commotion in those boisterous times, would follow the refusal; many of the disquiets, and tumults of those first reigns, being raised upon the pretence of the breach of these laws, a pretence so taking that the No [...] ­mans themselves either coloured their insurrections with it, or else preferred these before their own laws, and ran the hazard of their lives & fortune in earnest for them. Henry the 2. commanded the laws of his Grandfather to be observed Hov p. pricr in H. 2., of which below; Hovedens words (this I will note here) that Henry the second made Ranulphe of Glanville chief Justice of England, by whose wisdome the laws [Page 106]underwritten were made, which we call of England; make no new law, nor that chief Justice a law-maker, they explain what is intended by the laws of Henry the first his Grandfather — for the laws there underwritten Hoved. pars pest. 6 [...]0., are meerly King Edwards laws confirmed by Willi­am the first: king Richard the first swears to keep the good laws, &c. Paris in Rich 1. without saying of St. Edward, which yet can be no other, those (as is shown) had got the name, those must be meant by the ex­pression good lawes, the kings before and after swore to keep them. K. Iohn ab­solved from the Popes thunder (though at his Coronation by that oath to de­stroy bad laws, & substitute the good, to exercise right Justice, he had sworn the same Ma. Par. 197.) is forced to swear, that he will (as there) revoke, or restore the good laws of his ancestors (here the expression good lawes is interpreted) and especially the lawes of king Edward Id. 239., In the same place where king John commands that the lawes of his Grandfather Henry be kept, this must be intended, of the first laws of his great Grandfather (Henry the seconds Grandfather so often mentioned in the controversie betwixt Henry the second, and that Martyr of the Roman make [Page 107]without a cause, disobedient, unruly Becket Hov. 492. in H. 2 called by that king as before his Grandfathers lawes,) I say his great Grandfather Henry the first before here recited, where Henry the first grants lagam Edwardi regis the Law of king Edward. A Charter of which Stephen the Arch­bishop of Canterbury produces in the ve­ry next page (of Mat. Paris) after the absolution (which well might be pro­duced several transcripts of that Charter being sent by Henry the first to be pre­served in the Abbies of all the Counties) and there tells the Barons of the kings promise, which he forced him as he says at his absolution to make, that was, to take away all injust laws, and the good and just laws, to wit (as he still) the laws of king Edward to revoke (for re­store) and cause to be observed by all in the realm. And now (as he goes on) there is found a certain Charter of king Henry the first, by which if ye will your lost liberties you may to the Antient state revoke, the transcript agreed word for word with the Charter Ma. Pa. hist 55.210, the great sticklers for the lost liberties, for the good and just laws, for St. Edwards laws, are all of them Normans, or Norman-French, such as came in since Edward, and being setled here for some [Page 108]generations, now made a great part of the whole, amongst which are Fitz-wal­ter Marshal of the Hoste of God, and of holy Church (this was his stile in the succeeding wars) Ʋescy, Percy, Ros, de Bruis, Stuteville (as there) Saerie of Quincy Earle of Winchester, the Earle of Clare descended from the Norman Gislebert Bigod, Vere Fitz-Warin, Marshal, Beau­champ, Manduit, Fitz Allen, MandevilleEstotevilleMunhrey, Mowbrey. Montfichet.Munifichet, Montacute, de Gant, Laval, &c id. 254.. These when king John asked them what laws they would have, answered not, Sir, We are the Norman Conquerours, give us this peo­ple for a spoile, a prey, make them our villains, but quite another thing, they offer him a Scedule for the greatest part, as this Monk, containing the antient laws and customes of the realm, the chap­ters of the laws and liberties (says he) which the great men (the Barnage or Baronage as in other places he cals them) sought to be confirmed, were partly written above in the Charter of king Hen. partly taken out of the ancient laws of king Edward id. ibid.. Alll which lawes, with much adoe were confirmed by king John, this Scedule is the same, and eve­rywhere agrees with our Magna Charta, [Page 109]or grand Charter (and that of the For­rest) granted and confirmed by king Henry the third, called then by this Au­thor the long required liberties id. 323., or rather by the whole Clergy and Nobility, who tel the king they would give him the fif­teenth, which he desired, if he would grant them the long required liberties, which says this Historian the king gran­ted, and presently Charters were writ, one of the common liberties, &c. And strengthened with his seal, and one sent into every County — But (says he) the tenors of the Charters is had above more expresly (for here he recites not a word of them) So that (as he still) the Charters of both the kings are not not found in any thing unlike 5. H. 3 l. 1. Mort. dancest. In. 323. in an. 1224 the 8 of the King as he, yet th char­ters has an. 9.. In the year fore­going, this King was sought to by the Archbishop of Canterbury Stephen, and the other great men, the Barons at Ox­ford, where he held his Court to confirm the liberties and free customes &c id. 316.. Which he did not then do, but sent his letters or writs to all the [...] Sheriffs of the realm to cause twelve knights, or legal men of every County to enquire upon oath what were the libertics in England in the time of king Heary his Grandfather, (so he is yet called id. 317 Ma. W [...]st.) the breakers of the [Page 110]Charters are Excommunicated, with candles burning cast away extinguished, and cast away stinking Id. 861. Thus we see the stream of the laws of king Edward, the ancient liberties, and free customes, some times running freely, sometimes weakly, sometimes stopped in their course, at last have brake through all the Dams, have mixed, and incorporated with the great Charter, whose basis and foundation they are Nobilis D. Rog. Twis [...] den praefat. in Ll. w. 1. & H. 1, there still in being, and still the fountain of the Common Law. The great Charter raised upon this basis in one of the Statutes of confirmation, is com­manded by king Edward the first, to be allowed by the Justices in judgement, as the Common Law 25. E. 1 c. 1. So that well might the Lord Cook say, The great Charter is but a confirmation, or restitution of the Common Law Iast. 81. It hath been confirmed above 30 times, and by a Statute, if any Statute be made against one of these Charters it is to be void 42, E. 3 c. 1 [...], which if it were intended not of the time past, but of the time to come, I see no such absur­dity in it, as some mens over wise poli­cies would fancie; some parts of it being as moral and immutable, as the Decalogue it selfe. As those, That no man shall distraine for more [Page 111]service then is due, no man shall be a­merced for a small fault, but after the manner of his fault; no man shall bee destroyed without triall, justice shall not be sold, nor deferred, &c. The ob­servation of these Lawes was a condi­tion of Peace, which ever appeased the antient distempers, and cemented what was loose and dis-joynted in the great body. The Lawes toe of St. Edward are inserted into the oath of the Kings of England, usually taken at their Corona­tions, which were not onely superfluous and abundant, but an impious vanity, if there were no such lawes any where, after the solemnity of this religious and sacred bond to be observed. The manner of taking the Oath, as we find, is this; The Archbishop asks the King, VVhether he be willing to take the Oath u­sually taken by his Predecessors, and whe­ther the Lawes and Gustomes by the anti­ent, just and devout Kings granted to the people of England, with the confirmation of his Oath, he will grant and keep to the same people, and especially the Lawes, Cu­stomes, and Liberties, by the glorious King Edward to the Clergie and people granted. Ex libro regali. After he is led to the high Altar where he swears to observe them, &c. Further, [Page 112]so farre are some from allowing our Lawes to be Norman, that they are of opinion the Normans received theirs from us, (as they) most of their Cu­stomes being so derived; as William of Rovel, in his Preface to his Commenta­ry upon the grand Customary, Edward the Confessor being a long while in Normandy, gave Lawes to the Normans, and made the Customes of England, and Normandy, D. Spel. gloss. v. ju­rata. which if it were not so, nothing is lost by it, nor does it make any of these truths suspitious, Sup. 55. that so few of these Lawes are come to our hands (of which something is said be­fore) and of their Book-Cases or Judg­ments none at all: There never could be any such Volumes of them heard of, as are fancied, besides the honest simpli­city of the first ages, and the strictnesse of rules spoke of, writings and deeds ei­ther to pass Lands or Priviledges, were not in use till King VVithred, neer 700. years after our Saviour, that King being so illiterate, that he could not write his name, as himself confesses, Concil. Sax. 198, King Ael­fred little lesse then two hundred years after this complaines of the ignorance then, that there were scarcely any on this side Humber, who could under­stand [Page 113]the ordinary common prayers, or translate a piece of Latine into En­glish, but in the beginning of his reign on the South of the Thames, he re­membred not a man who could have done it; Ibid. 379 Epist. Ael­fredi, ad Walsagepis­cep. and although this King of sacred memory, if perhaps (as I cannot thinke he was) not the Solon and Ar­thitect of our Saxon English order, yet a great restorer of it, built gloriously upon the frame he found, yet these were lesse then beginnings would likely have been, where such a Prince had been the Workman, he could not intend them; the Danes like a fatall whirlewinde tearing up root and branch, every where ruining, had long before broke into the Land, which two hundred yeers to­gether they miserably harassed, with whom he fought fifty six battells, and as may be imagined, had not leisure to performe the duties of peace, but in his armes sometime hid in the poore shed of an Herdsman, as the most knowing Knight, a King without a Kingdome, a Prince without people, so that hee could not thinke of his Lawes, Concil. 378. and although there was some breathing, and the storm had some intermission, some calmes were in the two hundred yeeres, [Page 114]some in his reign, yet such ravage and spoil had these barbarous theeves made, and so universall might the Confusions and Disorders be, we may conceive it would be the labour of no short peace, to restore things fallen or shaken, to their first condition, without making any the least progression, this being not to be done till the corruptions which warre, licentiousnesse, and carelesse negligence have bred in the parts most sound, are plucked up, and the weeds throwne out, which must be the worke of time: The proceedings too of the Saxons our Ancestors (as M. Lambard) in judgement was de plane, and without solennity, enough to cleare this, though the Saxon Lawes then were enough for the Commonwealth, yet they had no great extent whatsoever unto S. Edward, gathered out of the Lawes of those who followed this King, and saw more quiet dayes, or out of the whole bo­dy of the Saxon Lawes could not reach farre, but not out of any defect in the Law it selfe, then the cause why the law runs in a larger channell, and spreads into more veines now, is not any arti­fice, or injust dealing of those who practice it, but the improvement of [Page 115]estates by good husbandry, much traf­fique, whence contracts are more fre­quent; As Sir John Davies, there is more Luxury and excesse in the world, more force, deceit, and oppression, more co­vetousnesse, and malice, breach of peace and trust, which as they gather strength and multiply, so must the laws, there is a necessity that as these mischiefs increase there should be supplements of laws to meet with them, Mr. Daniel observes of the Assize of Clarendon long after the Saxons, that it consisted (as it does) of very few points, and that the multitude of actions which followed in succeeding times, grew out of new transgressions, &c. When the Romans were little bet­ter then shepheards, and herdsmen, it is said a few Ivory tables contained their laws, after they came to be Lords of the world, thousands of Books were writ of the Romans Civil Law. Albericus Gentilis justly reprehends Ludovicus Vi­ves, who maintained (as he) that all things might be finished by a few laws, as the same Mr. Lambard (speaking of the Law of England) positive or writ­ten Law neither is nor can be made such a perfect rule, as that a man may thereby truly squ [...]e out justice in al cases which [Page 116]may happen; for written lawes must needs be made in generality, and grounded upon that which happeneth for the most part; because no wisdome of man can foresee every thing in parti­cularity, which experience and time doth beget Archeior. 76, 77.. There is a curse of peace, the highest prosperity has its dangers, there can be no safety in it, the rich man is more infirm, more unsound then the poore, pride and malicious contention are diseases he is seldom free from: it is well said of wicked men and their in­justice, there is need of many laws to bridle them, of many Officers to execute, of many lawyers to interpret those laws. We know all laws come not in by heaps but as time corrupts things, and new wrongs, and offences are discovered, by the same degrees. Thus the Sumptuary laws amongst the Romans came in, the Fabian of Plagiaries, the Julian of pub­like or private force, de ambitu, and the rest, all our Statute laws which are re­medying. So must it be, and so it has been, in all Commonwealths, of all laws whatsoever, unlesse there could be a stay of mens manners, unlesse they could move in an orderly course, either continually running upon things for­bidden, [Page 117]or avoiding them, either con­stant to their own goodnesse, or their lawlesse sins, there must be new Laws to amend what is amisse, unlesse Prophesie may be presupposed in the first Lawgiver who w^th cast of his eye w^th one look can see every thing. Thus we have seen whatour laws are, & from what fountain they flow; so then their discontent who onely hate the sword, and by whom the laws are loathed in no other notion but that of Norman conquest must be re­moved: they being not onely demon­strated to be justly made, and according to the law of Nations, weighed, and allowed, not by the wisdome of a nar­row age, but imbelished, and polished by the experience, and wisdom of a thou­sand yeers, (the fundamentals being yet of an higher rise) and what is most of all Saxon-English, must needs be vene­rable; they will be so, with those who are won by reason, and with those who are not capable of that, yet will be taken with the name, if their obstinacy be not above their senses. But if the law be not Norman, Tenures. if it suffer that which is (some will say it is the same) whether the Wen be native born with the face, or ad nate growing upon it after, the defor­mity [Page 118]is alike. And the next guilt char­ged upon the Iaw, is the vassallage of feudes, or Tenures, being a servitude thought unworthy of free men, it may easily be shown, that those were not first shown us by the Normans, that they had made their entrance long before, and if this be culpable, scarce any laws, but none of those of the Germane fountain (from which the most of these as is pro­ved in the western world are derived) are innocent. I will not look so far back, as upon Surena among the Parthians, whose hereditary right it was, and might be like our grand serieauty, to put the royal bond, or Cydaris, as it is cal­led by the Persians Curt. l. 111, upon the Kings head Plut. in Crasso.. Not upon the souldiery amongst the Gauls, heads devoted to him and his fortune, whom they followed, the Ges­sel amongst the Gauls and Germans Caes. com. l. 3.. Not upon Nero his kissing the Armenian Tyridates kneeling, which might be thought homage Sueton. iu in Ner.. Nor upon Alexanders kisse taken by Mr Fulbeck Paral. 4. Dial., for the same, Calisthenes is refused this kisse given by the king to every of his friends at sup­per with him, after they had drank, of whose fee we read nothing in History, and his Philosophy would make it seem [Page 119]small one. Budaeus would have seuds first begin in the antient Clienteles of the Romanes, and in the relation between the Patricii the Nobility, and the Plebei­ans, or Commons, the tye betwixt whom was reciprocal; the Patron was bound to protect the Clyent, and he with all faithfulnesse to observe the Pa­tron, to attend him in publike assem­blies, to contribute to the marriage of his daughters, to the payment of his publike mulcts, &c. Yet was there ano­ther relation, and that was servile, be­twixt the Patron and freed man, appear­ing by the operae libertorum, the duties and day works of the freed man to be done to the Patron, whom he was obliged if he were an official freed man to serve, and help in all things, the artist paid a certain sum of mony, either might be reduced to his servitude if he were in­grateful, part of his goods at his death were due to his Patron. There were the fundi Limitrophi, the border grounds of the Romans, belonging to the souldie [...]s marchers upon the guard for defence of the borders. And Alexander S. verus is reported to have given the Lands of his enemies won by him to his Praefects of the marches, and to their souldiers, and [Page 120]to their heirs Lamprid. in Alex. Sen Constantine the great ap­propriated the Lands assigned, for the pay of the souldiers, to them, and their heirs, with this charge, to maintain con­tinually a certain number of souldiers: which came to a neer resemblance. Gre­gory Haloander In praes. Noves., saies, the customes of the feuds were called by the ancients ju­ra militiarum, by Justinian in the novel­les [...] Those who hold feuds by Aescuage, are called by him [...], shield bearers. The [...] in the novelles, is more then our livery. The chief Lord, the first yeer the heir or suc­cessour of the Vassal came to the Land, was to have the whole revenue of it, or a certain sum of mony, in token of the return to the Lord, and redemption. There was the glebal goldein in the Code, so called, because the Senators paid it to the Prince for their possessions. There was too, (as Z [...]zamene) The glebal ad­scriptitius [...], the villain who continued, was aliened with, and followed the field Germanie (as the most knowing knight Gless. D. Spelm. scu­dum.) brought forth the rights, and customes feudal, and propa­gated them by tradition, not writing, their beginning is rather to be referred to the Salian Franks, says the most lear­ned [Page 121]Mr. Selden, then to the Lomberds. Feud is a reward or stipend: It is a right in anothers land to the use and profits which the Lord gives for a benefice, on condition, That the receiver do fealty, military duties, and other service. By which as in our Copy holds the Frank­tenement was in the Lord still. Neces­sity of war begot the invention, Em­perours, Kings, and Princes to reward those who had fought valiantly for their new Conquests, and to plant a perpetual souldiery, prepared, ever ready upon the Ban, to get to horse, or march, bred up to armes, as to a profession, to the intent the Country might be pre­served against invasions, and tumults, without the Princes or the publike charge, (mischiefs sometimes breaking in so suddainly, that the slownesse of any other preparation, where levies of men, and monies require time, cannot be staid for) Countries were given to the Capt. who after made subdivisions to their souldiers, the Captains part being proportioned according to the number of those under him, all being still in­corporate, a civil unseen militia, not ever shriking the eyes of others, quietly mixing, and keeping course in the [Page 120]common streame, like Traianes Cohorts, differing nothing in habit, P. in. Paneg. tranquillity and modesty from others, but at the first summons of the foot, ready like the seed of Cadmus to start up fields of armed men. The Justice of the institution was as much as the policy; all these tenures have been created according to this rule, (as the Lord Gooke,) 4. Jnsti. 192. Cuius est dare, eius est disponere, every proprietary may an­nex his condition to his grant, and dis­pose as he pleases of his owne, nor has the Vassall any reason to complaine, volenti non sit injuria, he might have refu­sed the thing, his acceptance binds him to the charge coincident. Hotoman de­scribes a fief, to be a benefice for which some duties are done, to testifie the gratefulnes of the taker. Disp. c. 1. I should think here would be the injustice— That the whole benefice should be enjoyed by the Tenant, and the Granter from whom it moved be allowed none of his owne reservations to himselfe; I beleeve there are few men now without harths or housholds Gods who would resufe a good manner, because these tyes hang upon the Labell. Sir Themas Ridleyn a Civilian fetches the Feudes chiefly from the Lombards, View &c. 71. much augmented and [Page 121]adorned by them they might be, Gloss. D. sp. 256. (which Lombards were Cousin-Germanes of the English Saxons, whose Companions in the Conquest of Italy, part of the Saxons were) and their charges are almost the same with ours; yet in the volume of the antient Lombard Lawes the word feud is not to be found, seldome the word benefice, but their are many things directly tending to this purpose; as also in the Laws of the Franks, called the Ca­pitulars, our English Saxon & those of o­thers. The word feud is of Saxon ori­ginall, feb fech, from whence it comes being the same with fee in use now: The greatest part of the words taste not one­ly of the Germane, but of it's more an­cient dialect the old Saxon. D. spelm. ibid. The feuds came but of late to be a volume of the Civill Law, composed by Obert de Horto, and Gerard Niger under the Emperour Fredericke the first surnamed Barbarossa, antiently the fee was held meerly at the will of the Lord, Ger. nig. l. 1. T. c. 1. after for a yeare, for life, made perpetuall and heredi­tary by Conrad the salic, the yeare 1025. amongst the Germans, where the discent was, as we call it by Gavelkinde. amongst the French in the reign of Hugh Capet, which he began in the yeare 988. [Page 124]in the yeare 913. as Munster will have it Conrad the first changed this custome, he gave the Dukedome of Saxonie, to Henry the Faulconer as a fief hereditary to the end (these are his words) that he might be the more vigilant to combate the O­botrites (now those of the Dukedome of Mecklenburge) and the enemies of the Faith. After (as he) Otho the first (who began his reign 938.) and his Successors did the like, Cosmegr. 346. after his defeat of the Hongres. ibid. 359.Lothaire the Emperour forbad Lords to take away the Vassals fee with­out his crime, which some interpret signall ingratitude, Feud l. c. tit. 20.23. to which Conrade addes, unlesse he be convinced of the crime by the judgement of his Peers or equals of the Court, ibid. which is called Landamentum. It is said of the Germans, the Emperour, because he cannot judge causes in all places, conferres upon il­lustrious men: viz. Princes, Earledomes, and feudal banners, Specul. Sax. Artic. 52. as another they have their fanleben, or principall fees the collation and investiture of which belongeth onely to the Emperour. Stat. Ger­man p. 2.52 These were the fees of the great Cap­taines or Barons, called by them freybe­ren—under which are the Medii Liberi who followed the Warre, and ought [Page 125]homage to another as Servitors noble, Munst. 145. the Land they called Terra salica, was the same with our Knight service, Bodin. l. sixieme c. 5. this was simply called a fee military, held of the Barons and Vavasours, of all which the Iaws speak, where are mentioned, the great Captaines who received the regall fiefs, called vassi dominici, who held in chiefe, the middle of a lower sort who received siefs from them, and the lowest to whom those gave. Feud. l. 1. tit. 1. sec. 4. Et tit. 15. Frederick the first, is made to speake thus, We in the presence, & witnes of all the Teutonic's & Lombards, and of the Bishops, and lay Princes, and Ba­rons, and Vanasours, &c. Raedenic. l. 2. c. 31. There is a Gavelkind as well in their honours of the greatest Houses, as of the Lands, which held in the Crowne it selfe till Charlemaigne, and is abolished in the House of Hessen but fince the last peace. The words of the Lord Arundel of War­dours creation (made Earle by Rodolph the 11. for his good service and valour against the Turkes at Strigoniun and the parts about) were — we have created him, and all and every of his Children, Heires, and Posteritie, and Descendents lawfully of both Sexes for ever to bee born, Counts and Countesses, &c. The ancient Saxons were divided into three [Page 140]sorts; the Edhilinges, or Nobles, the Frilinges, or Freemen, the Lazzi, or Vil­leins, which agreed exactly with our distinctions, though now their remaines nothing of the latter but the memory of it with us, not yet worne out a mongst the Germans; and as to some duties, as tilling the Lords ground, carrying in his corne, &c. the complaint of the muti­nous Clownes of the schwabische kraisse, or circle of Suevia was true, that their condition was little better then servile, Sleid. com l. 5. fiefs are every where in France upon the reasons before brought in, as all their old Laws & Institutions, by Pharamond, and his German Frankes, the Conquer­ours of the Gaules. The Nobles from the time of Hugh Capet, tooke their sur­names from their fiefs, the French have their fief, dominant en royale, or tenure in capite, held immediately in chiefe of the King, and whereof many others hold, their fief of Dignities either held immediately, or of some fief so held (then called fief mesne) a Barony or Chastelleny, the feudum vexillare or fief Rdnneret. The fief ample, or Knights fee held of the Lords Mesne, Barons, or Chastellaines, and their fief roturior ig­noble as our Socage Wardship, Fealty, [Page 100]Homage, Courts, Customes, Iurisdiction over Vassals, are incidents of the noble fiess; a name (as Berault) which com­prehends all the species but the last; they have their Cotier, paying the Cens a quit rent, or tilling the Lords ground, &c. The Cens was a Custome of the Ro­mans, and imposed in imitation of them, their Villain, or basest servile Tenant is yet in being, they have their Court feu­dale, or fonciere, which is as our Court Leet, or Baron, a Court of base Juris­diction, to which the Lords Vassals owe their suites and services; so of Escheates, there is little difference betwixt them & us, in them and in the right d'Aubaine, where a Stranger possessed of Lands, or Goods dies not naturalized. The right of bannery is the same with us, which is the priviledge of having a common Mill, O­ven, &c. whereto the tenants of the Man­er must resort, so of the dehris for wrecs, or shipwrackes, of right of warren, fish­ing and fowling, of Hereot a Custome of of the Germans yet, of Reliefe, of escu­age, Herefare, with the English-Saxons, Ofaide de chevels, de chtvalry to Knight the eldest Son, marry his Daughter, their Pure aumosue is our Frankalmoigne; Those of Spaine (as the author of the [Page 128]estates of the world) are Gothes, and reteine their Customes though not their name since Roderic D. T. Ʋ. Y. as Doctor Cowell a most learned Civilian; if you look up­on the Italians divided enough in their dominions, upon the French, Spaniards, and Dutch, our owne Countrey or the Scots, you shall finde the Laws of feudes to be admitted. Jnst. Ju. Angl. pref. 14. Tenures are amongst the Persians, Jov. Hist. l. 14. the Turkes, the Russe and the Spaniards of Peru, by the Ordinance of Charles the fifth, the Emperour and King of Spaine; Bodin l. 6. c. 2. by all which it is clear that they were no invention of the Nor­mans, being, if we father it upon the Lombard or Frank, both which are the fathers of it in their Conquests, (and not the rather which we might upon the Teutons and Germans, the common fa­thers of these) knowne and in use long before the Normans are heard of: whose appearance which showed them to the world was in inrodes and piracie, wher­in many yeares together from their first sally from Norwey and those parts, (pla­ces which is every where the fate of the most Northerne Provinces barbarous e­nough at this day) to the dayes of Rollo more then two hundred yeares, there was neither civility nor honesty in their [Page 129]actions; so it is likely, (though some­what they might bring with them) they took up what they wanted in Manners and Government, from the French, with whom they have kept so great an agreement since, for which, and a Pro­vince unjustly wrung from that Nation, they gave nothing in returne, but de­populations and blood; and had they introduced here the rites of Tenures, they had introduced but what them­selves tooke up, (either took up, or brought with them is the same) and what was common, as has been obser­ved, amongst all the victorious Ger­mane Nations. The onely way to make it plaine, in what manner, by what right the Saxons possessed their Lands, will be to search into those times, into the Records of them. The most know­ing in these things deny not fees, ser­vitude of fees somewhere is denyed▪ Gloss. verb. frud. I will begin with the Alodium (as like­ly to be freest) which is said to be Fole­land, made the same with our Socage, (which yet originally was servile, and more servile then any militarie Tenure will be found to be.) V.C. Dom. Wat. Gloss. in Par. D. Cowel. v [...]r. Socage. Lit. S. 119. D. Lpel Domi­nici Colani. The Aloaries are said to be the better sort of those who held by socage, they are compared to the Frank­leudes [Page 131]amongst the French, of the No­blesse, Nobiles militiam exarbitrio tractan­tes, for service when the fit took them, D [...]n. Sptl. verbo Alod. called out at no mans command, in no foedall servitude; yet who acknow­ledged a Lord, sayes this place.—Out of that of the Doomsday—Tit. Sudsex. Comes de ow. Laneswice. Godwin bolds of him, and of him seven Aloaries, who swore fealty, and paid some Cens or small Rent. This must seem a strange kinde of military Gentry, owing little more then to God and the Sun, amongst a people descended of those from whom Feudes are descended, whose fortunes were built in the field, and must ever have one hand upon the Sword. The Franklends were not so free, as it appears by this Glossary; free they were from Tribute, but not from the Wars. id. verb. Leudes. The word leudes has severall meanings: Ge­nerally by it, the leudes, the Subjects of all sorts are intended, according to that. It was agreed betwixt Childebert and Gruntchranne, that none of them inveagle away anothers leudes, Greg. Tur. l. 6. special­ly it is taken for the Vassalls praediall, servile, feudall, and noble; more re­strainedly for the vassalls royall, after called Barons, which must be the Frankleudes. [Page 131]I will relate, and onely relate what I have found elsewhere amongst us of our Alodiary, Doomesday is cited in these words, And in Sussex Ceting­ley,Tit. of Honour Che­ding.(for Chittingley a Towne in Peven­sie Rape) Almar held of Ring Edward, as Alode sicut Alodium. Upon which the Aloarie is said to possesse his Land by Clientelar right, D. Seld. in Ead. 202. v. ibid. 217. the Titles of Honour—citing this and the place in Sussex before, say, Alodium was not Land whereof no Tenure was; it might be such a Tenure as was free from any chargeable service; and again, (as free as Kent is thought to bee) the same Doomesday speaks thus, These forfeitures has the King over all the Alodiaries, of the County of Kent, and their men, (vassalls) And when thé Alodiary dies, the King shall have reliefe therefore of his land, ex­cept the land of holy Trinity, &c. and of their lands be has reliefe, who have soc and sac.

Not to fall upon a discourse of the feudall Souldier, who fights ever for his owne, and the Mercenary, though nature binds us to defend our Country, I know not why any tye (in a reasona­ble equality to our strength and means) to knit this knot faster can bee called [Page 132]servitude, and some more willingly o­bey a condition of their owne accep­ing, then a command: I will show be­low there were speciall obligations of this kind upon those who were certainly beneath the Alodiary. The Saxons had their Mannors, which they called Beries, sometimes with lesser Mannors, or Berewics, as Hamlets of the greater holding of them, which had many plough-lands, many kinds of services, many Free-men, So [...]mannes, many of those who did the Lords worke about the house (from D. Spel. gloss. bord the house in Saxon called bordarii, or from bord, which in Saxon is a Table, a word u [...] sed for it still) many villains belonging to them, v. Ps. 68 I know not why these Bor­ders should be thought Norman in their name against the Etymologie. If that place in the Doomsday be conside­red, Tit. Norf. Nereburgh, (a Towne, now Nerborough) held Aelwie in the time of King Edward the Gonfessor, now R. &c. Then foure and twenty villeines, &c. Then and after ten bordarii borders, &c. Tit. Hereford. And other twelve borders working one day in the weeke. The De­meanes were called the Inland; the Te­nancy, and what was allowed the Co­lony, [Page 133]or Husbandmen the Ʋtland, ac­cording to the testament of Bithric, D. Lamb. Itin. Gant.I bequeath, sayes he, to Walfege that Inland, (as M. Lambard the demeanes) and to Elfey the outland, as he, the Tenancy. The Ecclesiasticall Lawes of King Ed­gar, command Tythes to be paid both out of the Thenes Inland, and the Neat­land, the Tenants land. Ll. E [...]g. Eccles. Con­cil. 444. Thus must Ingulphus be intended in the deeds of Withlaf and Beored, Mercian Kings, twice are these words, Also I confirme to the fore-said Monastery of the gift of Geolph, sonne of Malt in Halington, four Oxganges of land of Jnland, which the Margent once corrects by Luland, for Juland, both which make it non­sense; there is added, and ten Oxganges in service: The words—Mannor, Man­sions, Teuements, Marshes, common of Pasture of all Beasts, are frequently met with in the antient Grants made by the Mercian and West Saxon Kings to the Monastery of Crowland, Inulphus Savil 859, 864, 881. with the termes, acres, hides, Carues Oxe­ganges, Yardlands, Firmes, Rents, &c. many of those Mannours had their Royalties, or huge Priviledges, (as Ingulphus calls them) annexed, both of Jurisdiction in some parts lessened [Page 134]since, and profit. King Edgars Chatter this Monastery, describes and grants them, I grant and confirme, sayes he, &c. free from all secular charge, and that they have all the free Customes with all that which is called Soc, Sac, Tol and Team, Infangthef, Weife, and Streye, Id. 881. amongst which Sac in the Halmot, since Court Baron, was com­mon to all Mannors. In the great Plea of Pennedene, (of which before) the Archbishop is said to darrein all the Liberties and Customes of his Church, Soca, Saca, Tol, Team, Flymena, Fyrmthe, (for Flymen firm) Grithbrice, Forsteal, Haunfare, (for Heinfare) and Infan­gennetheof, Not. in Ead. 196. most of which are now worne out, unknowne in these base Courts; yet I will say something of them, not that I pretend to give full satisfaction, being in some of them unsatisfied my selfe, as they are upon whom I relye, for Soca D. Cowell cites S. Edwards Lawes: c. 23. He sayes—some will have it an Inquest, as if it were seek, some. Suit of Court; others an exemption of the Tenents from any publike duties without the Mannor or Liberty, called still soke; soon—socne is in Saxon liberty, Ll. Cnuti. c. 69 4. free Jurisdiction; [Page 135]frithsocne is a sanctuary, a liberty of peace. Ll. Eccles. r. Cnuti. c. 2 In the lives of the Abbots of S. Alhanes, we read, with all the lands which William Chamberlaine, or the Chamberlain held in the Soke of Lui­ton; 69. it is the Liberty, or Jurisdiction of the Lordship, within which the Lord may hold his Court, to which the Tenants ought to resort, to doe their Suit, and out of which they are not to be drawne—Sac is conusance of Pleas; Tol is said to be a liberty to buy and sell within the Mannour, Ll. Edu. c. 24. more likely, some duty paid to the Lord upon such sales. Team in other Saxon out of the Lawes is progenie; by some made a power to have, and and dispose of villains, and their race; it is, (so I gather from the Saxon laws) cognizance in a Court-Baron of things claimed, stollen, where he in whose hands the goods were found might vouch his Vendor, and he over till the Thiefe was discovered, if hee were teames ƿyrþe, as King Cnuts Lawes speak, if he deserved the right, as ha­ving bought before legall witnesses (o­therwise not, and he was to pay the penalty imposed.) at the third Voucher, the Owner is to have his goods, the [Page 136] team was to be in the place where the goods were found, no man was bound fylgean team to follow it, I know not whether: timþ is used in the Laws of Ine for vouch, getiman in those of Aelfred for the Voucher, as geteaman in those of King Edward the elder, and King Aetheldred; timan and teaman to vouch, team for vouching, tymoe he hath vouched, in Aethelstanes Lawes, tyman, team in those of Aetheldred, team, teames tyme in Cnuts, in the same sense Ll Ina l. 74. Alfr. 4. Edv. sen. 2. Aethelft 24 Aetheld. 9, 10. Cnuti. 21, 22. Edv 3.25. the other terms may be ren­dred by Mulct of sustaining Fugitives or Out-lawes, of breach of the peace, forestalling, departing of a Servant, Tryall of a Thiefe taken within the Jurisdiction. There were Parks in the Saxon times, which though it be a di­gression, I thought fit to observe; this appears by the word Deorfald, Deerfold, and by the Doomesday, where they are are called Parcisylvatici bestiarum, Wood Parks of Beasts. Forrests too here are as antient, called Bucholt, and Buchurst, is the same, holt and hurst both signify­ing a Wood. King Cnut in his Lawes c. 77. v. manne Fe­rest. D Sp. gloss. verb. Forresta. gives any man leave to hunt in his owne Woods or Fields, forbidding onely to meddle with the Kings Veni­son [Page 137]in the places of freedom, other For­rest lawes were after set forth by the same Cnut, one of which in the thirty chap. gives leave to hunt, but not so ge­neraly, it names not woods. If the Saxon original were as narrow, (w^ch no man now knowes) yet I see not why these laws should be suspected for it, as they are 4. Inst., where this chapter is thought to be a prohibition to hunt (which it is not.) It agrees with the law before, men were to avoid the kings game, not wheresoever according to the word, but wheresoever he will have it (accor­ding to the other law) gefƿiþod privi­ledged, free. What the Thane was, and how he held his Lands, and Lord­ships, I will next enquire.

The word Thane, Thegen, thein, thegne, (we finde theowan too) and all these ways it is written, is used sometimes in­differently, in some places meerly for the kings servants, meerly for a servant, as in Doomesday Cola the bunter, Ʋluiet the hunter, Godwin the Falconer, &c. and in a Saxon Sermon In Beda [...] 382. The Queen of Seba tells Soloman blessed are thy servants, theguas and theowan, the Apostles are called thenes Bede 483., yet in other places it may be observed directly and properly [Page 138]restrained to, intended of a Thane, hold­ing Taine Land, though he might in some honourable way or other serve the king too. Such might he be in Bede, (whom as the fable speaks, no bonds could hold, when his brother was at Masse praying for his soule, as supposing him slain in the battel with Elwin king Egfreds brother) who feared to confesse that he was the kings Thegne, but said he was a folelic man, and again, those that were with him saw by his face, and car­riage, that he was not one of the poor folk, but that he was of noble race Bede. l. 4. c. 22., and being questioned, answered he was the Kings Thegne. There is the Kings Thane & the ðeoden mean or under Thane. The first, the Kings Baron, the other the Lord of a Mannor v. ll. reg. Cnuti. c. 69., as a most learned Anti­quary Neither were there with them (the Saxons) any other created titles after the Prince, or Etheling honorary it seems, but this of Earle, and their Thanes, according to the Charter of the Confessor for the Lands of St. Pauls Church there, which runs thus: Edward king Gret mine Bisce­ops, and mine Forles, and alle mine Thegnes ou Thau shiren, wher mine Prestes in Pau­lus Minister habband Land D. Seld. tit. Hon.. He acknow­ledges there were the feudal honorary, [Page 139] ninrges Ðegne Kings Thane who held of the K. in chief, that his land only was honorary Taineland, that he held by ser­vice of personal attendance, by service of an Office, or military attendance he maks the ðeoden Medmera Ðegne or under Thane to be feudal too, Which se­in Concil. Sax. 406. Now in print. and the same with a Ʋavassour out of the M, S. of Athelstanes laws sometimes at the Li­brary of St. James he cites, Si Ceorlman prove batur ut habeat 5. hidos terrae ad ut Waram (which should be utfaram expedi­tionem) regis, &c. That is, says he, held of the King by knight service Tit. Hon. 2. edit. 622 624.. In Doomes­day tit. Bockingham scire, is, Burchard Teigue. 1. Baro Regis Edwardi — That is Baron of King Edward. Amongst the witnesses to the priviledge of King Aeiheldred, granted to the Monastery of Christ Church in Ganterbury, is Aethel­mere the kings Discthene translated dapifer Leafric his braegel thene, Master of the Wardrobe. Siward the kings thene a t raed of his Councel Concil. 500, 501., which certainly were Thanes or Barons by the service of these places. We read of those in the Saxon Cronologie, who served not (n ordinary, lived not continually at Court, v Sax. Cron. 534, 543. or neer the kings person (like those in the Confessors Chatters here) [Page 140]yet are called the Kings Thenes. The words are these, And in those three yeers, many of the kings most choice Thenes dyed, amongst which were Suithulfe Bishop of Rochester, and Ceolmund Alderman or Earle in Kent, and Beorhtulf Alderman amongst the West-Saxons, and Wulfred Alderman in Hamptonshire, and Ealheard Bishop at Dorchester, and Eadulf the kings Thane amongst the South Saxons, and Be­ornwulf the Gerefe in Winchester, and Ec­gulf the kings Master of the Horse, his horse Thene, and many other of the most no­ble Cronolog. Sax. 545. Which I shall make yet more cleer, when I come to speak of Hereot out of the Laws of King Cnut. This Law is meant of the lesse or under Thane, If any Thegne which in his bockland (op­posite to so cland, which passed with­out writing) hath a Church and a burial place &c Ll Edg. 2, to make it more full (as be­fore is said) that the policie of these Germane Nations tended much to war, the very ceorl [...] or plowman could not under such a penalty keepe at home, when an Army was to march L [...]. Ina. c. 52., and whosoever withdrew himself from the march, forfeited all he had Concil. [...] Ae [...]ham. c. 24., if the king were in the expedition, The Doomesday says — In the City of Hereford — [Page 141] The Burger serving with his horse when he dies. The King shall have his horse, and armes. As there. Wallingford in the time of King Edward the confessor conteined 276 hages or houses, rendring ten pounds of rent or gable, and who remained there performed the kings service with their horses, or by water. We finde in the Saxons times in a gift of lands reservations of services, and creation of Tenures: king Aelfred at peace with Guthrun the Dane, whom he wins over to the Faith, gives him the Provinces of the cast Angles and Northumberland to be possessed by Foedal and hereditary right Concil. Sax. 379. Asser. me­n vens.. John Pik who writ in the reign of king Henry the first says, king Aelfred gave these Provinces, &c. Ʋnder fealty of the King, that he might preserve that by here­ditary right, which he had invaded by robbery. Malmesbury relates this in the same words de gest. reg. l. 2. c. 4., in the Chronology we finde. Here Edmund the King wasted all Cumberland, and gave it to King Mal­colne, king of the Scots, on condition that by Sea, and Land, he should assist him in his wars, ꝧ he ƿære his mid ƿyrhta that he were his fellow in action Cronal. S [...]x. in an. 945., of the first of which Harding has.

Malmesbury reports in the life of King Edgar. That there came to his Court Kunadie King of Scots, Maleolne king of Cumberland, the arch Pirate (Admiral) Maccuf, all the kings of the Welsh, Dusual, Gifreth, Huual (Hoel Dha) Jacob, and Judethil, whom Edgar bound to himself in a perpetual oath l. 2. 4. c. 8. v. tit. Hon., which may be called Fealty. Where the same Harding recites the beneficiary Clyents or Princes (who had sworne Fealty (sayes Mr. Mare claus. 280. Selden to king Cnut) he addes,

There is an example of the creation of knight service here before the Nor­mans, in the lives of the Abbots of St. [Page 143] Albans. Then sayes the Monk in the time of Abbot Leofstane and Edward the Confessor. The Chilterne a small country neer the Monastery was full of Woods, in which lodged divers beasts, wolves, (not then it seems extinct) bores, wild bulls, and deere, and which were more mischievous, thieves, out lawes, banished men, and fugi­tives. Abbot Leofstane to the profit of this Monastery granted to a certain stout knight Thurnoth, and to his two come­rades Waldef, and Thurman, the Manner of Flamsted, on condition that the said knight Thurnoth, with his comerades forenamed, and their heirs, should preserve the west parts, abounding most with thievs, as well from noysome beasts, as theeves, and answer such losse as by their neglect should happen, and if common war should happen, with all their diligence, and power defend the Church of St. Albans, which they, saith he and their heirs faithfully performed, till king William conquered England; then that Manor was taken from them because they would not endure the Norman yoke, but a certain Noble man, Roger of Thony to whom that Manor fell, stoutly performed that service Vit. Ab. 46. In Doomesday is said, That the Church of holy Mary of Worcester, has the hundred called Oswalds hawe in [Page 145]which lye 300 hides, of which the Bishop of that Church from the constitution of anti­ent times has redditiones socharum, & regis servitium & suum; Which is made So­cage rents, and knight service, 3. Rep. Praef. In an old Charter of the age of Doomesday book are these words, To Edwin, and all the Teigues and Drenges, and to all the men of St. Cuthbert of Gol­dinghamshire greeting, the same as Sir Hen. Spelman with Barons, knights, and Freeholders. In Domesd. tit. Cestresc. —Of this Manour another Land fifteen men, whom they called Drenches for fifteen Manors held, and tit. eod. in Villa Wal­lingtone. To that Manor belonged thirty four Drenches, and so many Maenors they had. It is cleere (so the Glossary) that these Drenches were a kinde of vassals, but not ignoble, who held by knight service, one of which Drenches he con­ceives Edwin in Norfolk (whose posteri­ty was after called Shireburn) to have been; who proving before William the first, that he sided not against him, and that being found true, he and all those in his condition Weentun Monum, hi [...] example [...]n C [...]ington of Sir Rob. Cotten., like to lose all, were confirmed in their Lands and Lordships, to have and hold (those are the words of the confirmation) as wholly and [Page 144]peaceably as ever they did before the conquest. By the Records of Term. Trin. 21 E. 3. Comit. Ebor & Com. Nor­thumb. Rot. 191. This Drench is descri­bed thus: That the foresaid Ʋghtred, held the said lands, viz. In Northumberland, of our Lord the king, and of his progeni­tors kings of England, by the service of a Drench: which service in the parts fore­said is such, that of whomsoever he holds any thing there, by such service it is held, and if the Tenant dye; his heire being within age, the Wardship of the heir, and land belong­eth to the Lord of which, &cD. Spelm. gloss verb [...] Dronches., with the marriage. Whether wardship and mar­riage (as the Lord Cook 4. Inst. 193.no badges of servitude) be of the same antiquity with king Aelfred, I will not take upon me to determine, the Lord Cook, as also the Mirrour in the place cited by him are for the affirmative Inst. 1. p. 76.4. Inst. 292. mire. sect. 3. graft 911. &c.. By a law if any man dye intestate, the Lord is to have nothing but what is due by the name of Hereo [...] Ll. Cnu [...] c. 68., by Mr. Lambard this is acknow­ledged Engish-Saxon, and thought to be the same with relief: one place sayes —Relief, or rather Herent Not. in radwes. 152, and Here­ot or relief 154. 161 id., & compares the Hereota to the [...] Hereor is a service and ac­knowledgement of the seigniory of a­nother, [Page 146]a tribute (so D^r. Cowel) given to the Lord amongst the Saxons, for his better preparation toward the war. In the Monastical institutions of king Edgar, Hereot is called geƿunlic gae&ul a customary Cens, or duty said to be gi­ven to the kings by the great men of this Country after geþtenege their death. It is forbidden by this king to be given for all Abbots, and Abbesses In not. ad eadm. (before as it seemeth not so free) as here the words: By the great men after their death; make it quite another thing (though it is called so) from relief, which is for the heir, and never paid but where there is one Gloss. verbo Here­ot.. The Hereot was to be reason­able (and here again we shall see the ranks of the Saxon noblesse.) The Earls eight horses, four sadled, four not, four Helmets, four coats of maile, and eight spears, as many shields, four swords, and two hundred Saxon [...], Marks of Gold. The greater Thanes, the kings Thanes, four horses, two sadled, two not, two swords, four spears, as many shields, an helmet, a coat of maile, and fifty marks of Gold. The Medmere or under Thane, one horse ready, his weapon, or as amongst the West Saxons, his neck ransome, amongst the Mercians two [Page 147]pounds, amongst the Eas [...]-Angels two pounds. The Kings Thanes Hereot a­mongst the Danes who has free juris­diction ðe his socne haeb [...]e foure pound, and if he be further knowne to the King, two Horses, one sadled the other not, one Sword, two Speares, two Shields, and fifty markes of gold: The conclusion has not Infimae conditionis Thani as the Latin is—But he that has lesse and lesse, may be he two pound, Ll Conti. c 69. other Lords had their Hereot too. The Lawes of Kings William, which as the title, were the same which King Ed­ward obserued—calles this which in these Lawes is Hereot, reliefe, and the Earle, Kings, Thegne, and Underthane who are here charged as is said, there are called and named Cnute, Barun, and Vavasour, and charged much in the same manner [...]. 22, 23, 24, v. c. 20. with little difference. King Edwards Latin Lawes where any man falls in warre before his Lord by Land or else where forgives his reliefe, c. 3 [...]. and gives his Heires, his Lands, and Money without diminution. ibid. I will observe a little out of those old grants and Charters which preceed the Nor­mans, by which the religious heretofore made their titles, onely carefull to get, [Page 148]and to be free, where we shall finde o­ther men were not so. The confirmation of Pope Agatho, of the new raised Mo­nastery of Medeshamstede after Peterbo­rough, before the age of Charters, An. 680. Concil. Sax. 164. re­cites the immunities. It was to be in no ðeudom in no kinde of servitude, neither to King, Bishop, nor Earle; No man was to have any rent or tribute there; in the Councel of Becanceld King Withered freed the Church, from all difficulties of saecular servitude, from feeding the King, Princes, Aldermen, Earles from all works, the greater and lesser grievances, &c. Concil Becanceld. Au. 694. Concil. Sax. 190.Wit­lafe King of the Mercians, in the yeare 833. confirmes to the Monastery of Crowland their Lands and Tenements thus; I grant, deliver, and confirme, those Lands and Tenements, &c. for a peaceable and perpetuall possession, to have from me and my Heires, whosoever Kings of the Mercians after me to succeed in puram Elee­mosynam, in perpetuall and pure frankal­moigne, Libere, quiete et solute, or (as we now use it) quit, and discharged from all saecular charges, exactions, and tributes whatsoever, by what name soever; Ingulp. hist. Concil. Sax. 328. as ano­ther place amongst many things done & said, Ceolnoth the Archbishop before the whole Councell (of Kingston) shewed, [Page 149]That the aforesaid Kings Egbert, and Ae­thelwulfe his Son, gave to Christ-Church (at Canterbury) the Mannor called Mal­lings in South-saxon, free from all secular seruice and tribute royal, except these three, expedition military, fird, or firdfare (upon the Herebanne, the proclamation or edict military) and to repair Bridges & Castles, Brugbote, and Burgbote, Concil. 340. by some not to be released Charta E [...]dbaldi. M [...]lmsb. de gest. reg. l. 1. I [...]ae reg. Glelienb. Concit. 228. which was not true. The most learned Mr. Selden—saies—in England before the Normans were mi­litary fiefes, the Earles and Thanes were bound to a kind of Knight service, all the Lands of the Kingdom (except some priviledged, &c.) held of the Crown me­diatly or immediately; but saies he, the expedition mulitary, &c. those three were not so much by reason of tenure, as general subjection to occasions of the state; Tit. Hon. 1 Edit. 321. likely so, yet to recite the opi­nions of others, there are that thinke this firdfare to be the same with our escuage, the Charter of Kenulph, An. 821. the Mercian King to Abingdon, discharges all services but the expedition of twelue men with their shields, cum scutis, burgbote, &c. as the most knowing Knight. In the antient Charters and Leases often profectio militaris and expeditio are the [Page 150]same which amongst the Saxons is called here fare, amongst the Germans Hereban, with us and the French escuage at least that which is certaine. Glos. ver­bo Heriban­nm. The Charter of Bertulph King of the Merci­ans, Anno 851. to the Monastery of Crowland grants, All those abovesaid Churches, Chappells, Lands, Tenements, Pastures, Fishings, Mannors, Mansions, Milles, Marshes, free and discharged from all secular service and earthly charge, &c. and I free from all duty of the King, and of every other Lord and man, of what dignity, excellency, and honour soever. Concil. 346. Jngulph. Hist. 861. King Athel­wulf the West Saxon and Monarch, in his grant of the tenth Mansion, and of the tenth of all goods to the Church, differs little from these. Hee will have that tenth part to be free (as the severall Copies have it, and as we find it hitherto to have been) from all socular servitudes, and from all royal tributes, the greater and the lesser, or from the taxes (as in Ingulphus) which we call winterden, as Malmesbury Witerden, as Math: of Westminster Wit­eredden, who agrees with the others in this part, onely he has secular services for servitude; all of them make the Charter conclude (contrary to the Charter of Eadbald before) and let it be free, &c. to [Page 151]serve God onely, without expedition, repaire of Bridges and Castles, which by the old law (or old policy rather) of the English Saxons, it is said the Kings could not discharge. This is therefore called the writing of the Liberty of the Churches of England. This Charter worthy of everlasting memory, was granted in a Generall Councell at Winchester, such one as is called Pan Anglicum, where were present three Kings, Athelwulf the Monarch, the West Saxon, Beared the Mercian, after driven out by the Danes, and Edmund the Eastangle, the Martyr, slaine by those Danes. Hence the most worthy Knight thinkes the rectory and the glebe to have had their beginning, though faire additions from the munifi­cence of pious patrons have been made to it since. concil. 349. 352. In optona grena (Ʋpton grene) as Ingulphus — S^t Gutlac (the tutelar speciall Saint of Crowland,) had and bath Woods and Marshes, &c. in the time of King Edward, free and quit from all ser­vices,Hist. 909& from the time of King Etheldred was the Seat of our Abby (sayes he) quit and discharged from all secular services, and our Abby was quit and free from all secular ser­vices in the time of that King, who was the lawfull Successour of the royall blood of the [Page 152]English, and father of the most pious King Edward. p. 911. s. 30 40.50. And againe, a great part of the Marshes and Meadowes of the Seat of our Monastery (saies he) I demised for a certain yearely rent, and other services to be done. 912. The Folcland (of the basest tenure) a­mongst the Saxons as M. Lombard, which passed without writing, was that which now we call Copy-hold at the will of the Lord, Glos. terra exscripta. whose condition, as also that of those who held by socage, was far more servile before the Norman en­trance then in some times since, before the services of all these consisted in fca­sance, in doing, after in render by pay­ment, &c. as the most reverend Judge Littleton of those who hold by socage. Afterward these services were changed into money by consent of the Tenants, and desire of the Lord, viz. into an annuall rent, &c. yet the name, &c. remaineth, and in di­vers places the Tenants yet doe such services with their Ploughes to their Lords.L. 2 s. 119.Bracton calles the Copy-holder villein sockman (or sockman of base tenure) L. 2. c. 8. others tenant in villeinage, servitude indeed, or villeinage since Richard the seconds time is by degrees rather worne out, then abolished by any law, nothing now is left but the name, the last man which [Page 153]I have knowne claimed for a villein be­ing Crouch of Sommerset-shire in Queene Elizabeths time. Dy. 266. 283. This too is Saxon Eng­lish, and preceded the Normans, but was never favoured by the Law. Dy. 267. lit. s. 193. Forost. c. 42. The Sax­on lawes call the villain ðeoƿ mon or man ðeoƿ and ðeoƿe indifferently, a servant man, or servant, not that free­men were not servants too as since they are, both which are visible in that Law of King Ina: If a Servant man worke on Sunday by his Lords command, be he free, and the Lord shall pay thirty shil­lings for a penalty, if he worke without his Lords knowledge, he shall lose his hide, (be whipped) or his hide gild, the price of it, but if a Freeman worke that day with­out his Lords command, he shall lose his freedome, or sixty shillings. Ll. Ina c. 3.23.46.73.50. Ll. Aelfr. c. 5. In that ex­tract of the Lands of the Monastery of Crowland, taken out of the Dooms­day Book by Ingulphus the Abbot, we finde in Langtoft, S. Guthlac bas, &c. viz. five Carues, eight Villains, Barders. sup. 81. four Bord. and twenty having soc socham habentes, 5 Carucatas, it should be, twenty socm. habentes, 5 Carucatas — and in B­ston, &c. There in Dominio one Carue, five villains, two Bord. and seven soem. with two Carues in Soudnave slound— [Page 154]two servants, six villaines, three Bord. with one Sochman, having three Carues, &c. with much more of the same. Ingulthus Savil. 908. In the yeare 1051. Thorold of Buckenbale Sheriffe of Lincolnshire, likely of the the blood, a descendent of the former Thorold, who had Lands in Buckenhale, grants the Mannor of Spalding to Wul­gate Abbot of Crowland in these words, I have given, &c. to God and St. Guthlac of Crowland, &c. all my Manor scituate neer the Parochial Church of the same Town, with all the lands, and tenements, rents, and services, &c. which I had in the same Ma­nor, &c. with all the appendants. viz. Col­grin my Reeve, and his whole scquele, with all the goods and chattels which he hath in the same town, fields, and marches, &c. al­so Harding the Smith, and his whole sequell with all the goods and chattels which he hath in the same town, &c. also Leftan the car­penter, and his whole sequell with all the goods and chattels, &c. also Ringulph the Ringul­phum pri­mum.first and his whole sequell, with the goods, and chattels, &c also Elstan the Fisher, and his whole sequell with the goods and chattels, &c. Also Gunter Liniet, &c. Outy Grim­kelson &c. Turstan Dubbe, &c. Algar the black &c. Edric the son of Siward, &c. Os­mund the miller, &c. Besy Tuke, &c. Elmer [Page 155] of Pincebeck, &c. also Gouse Gamelson, &c. With the same clauses to them, as be­fore. The conclusion is; these my servants (servos) and their goods, and chattels, with all my Cottages, &c. together with my Piscaries as well in the marches adj [...]cent as in the sea coming up to the same Town, &c Ingulph. 913, 914.. Plain denotations of the Villein regardant, this was done in the tenth yeer of Edward the Confessor, fifteen yeers before the Conquest; and unlike­ly those rents, services and the villeinage of these men should begin the day before the grant. This Ingulphus himselfe makes plain. It is (sayes he) to be de­clared, that in the seat of Crowland vil­leins, borders, nor Sochmans are not received, unlesse out of fear of war over our heads p. 911.. I should think this Sochman very base, neither of much esteeme nor freedome where he is so ranked, and keeps such company as in these places. Nor here was our law more inhumane then those of all other Christian Nations. The Civil law suffered this slavery, till Ju­stinian by a general Edict restored al men to their freedome, it was frequent in Germany till the reign of Lodowick the second. The villains there were affran­chised, with reservation of day works, [Page 156]and Escheates which hold yet in the low Countries and in France, &c. saies Bodin Republ. luire. 1. In Poland the Villein is yet in being, he is called there Kmetos and may be killed by his Lord. Lewis Hutin freed many of these from their servile condition in France. Humbert those of Dauphine, Thi­balt of Blois those of his Countrey. Charles the seventh of France, others. Henry the second the Bourbonnois, Eman­uel Philibert of Savoie did the same in his Countries; The Lord of la Roche Blanch in Guascgogne An. 1558. (in Boains time) pretended not only a right of succession to the goods of his Subjects (so the Pea­sant or Vassall under the jurisdiction of any Lord is called) called by the French main-morte, but also that they were bound to plant his Vines, till his Fields, mow his Meadowes, reape and thresh his Corne, build his House, to pay his ran­some, and the taille in the four cases an­antiently accustomed (viz. for Knight­ing the Kings eldest Sonne, marriage of his Daughters, voyage over Sea, and Captivity) and, if they stragled out of his Lands without his leave to bring them backlike Beasts with halters about their necks, which last part was cut off by arrest of the Parliament of Tholouse. [Page 157]By all this it is manifest in these things there is nothing singular, nothing with­out example, the greatest could be given; and let the Normans and their entrance be as injust as is imaginable, never to be forgiven, such as no satisfaction can ex­piate. These are no crimes of that Con­quest, and ought not to be involved in the name.

CHAP. III.

NO Nation can compare with us in the Justice and Majesty of our Courts, Courts. where (so generall is their extent, and power to redresse wrongs) every man let the injury be what it could, and done by whatsoever great injust man, might be righted; nor are there any Supernumeraries amongst them, Courts of no use but to vex and intangle. The first judges—posito modo praetor aratro—are said to give Lawes to administer Justice to the people while the Plough rested, but upon the same [Page 159]reasons which make Lawes at first (as is said) plaine and simple, multiply, Courts must needs grow more numerous. In the Saxons times besides the lesser Courts before discoursed of, to relieve men at their owne doores. There was but one high Court of Justice ever moving with the Prince, which judged (as Mr Lam­bard out of those Lawes of appeales, for­bidden where Justice might be had at home) not only according to Right and Law, Sup. 59. but also after equity and good con­science; the words of the Lawes are, un­lesse he cannot find right at home, or right be too heavie, Ll. Edg. c. Ll. cnum. 16. in this Order faies the same Mr. Lambard, and in these two sorts of Courts was all Justice admini­stred till William the Conquerer, Arch. 20. and after him this Court continued under the chiefe Justice of England ordinarily; which great Officer the first man next the King alone had the power of the Chief Justice of the Pleas of the Crown, of the Chiefe Justice of the Common Pleas till the nineth of King Henry the third, according to that of Magna Charta, the Common Pleas shall no lon­ger follow the Kings Court, though this Charter was before granted by King John, in the 17. of his reigne, it should [Page 160]seem by the charge against that much wronged gallant man Hubert de Burgo, chiefe Justice in King Iohns time, and in the time of Henry the third, after the death of William Earle of Pembroke chiefe Justice, 4 H. 3. that this huge office was not shrunk, that the chiefe Justice was then whole and intire, Ma. Pa. addi [...]. 149. besides the pleas of the Crown, and common pleas, he had the power of the chiefe Baron of the Exchequer, and of the master of the wards, Addit. ubi sup. and sometimes commands ar­mies, Ma. Pa. 193. an imployment too much for one man, and businesse too much for one Court. Upon which reasons distri­bution of the jurisdiction was necessary, which flowing after from one Fountain by many streams into several Courts, is no small ease to the people, and this additional alteration is the greatest im­provement imaginable. Hence are deri­ved the Benches, the Chancery, and Exchequer, of the excellency of which, and other high Courss, pipes commu­nicating justice with more speed and facility over England, I wil say some­thing, but briefly; my ayme being to make a tryall whether those who are not to be moved else by any other way, will trust and yield to their own eyes, [Page 161]before which I would lay things as plainly, and as openly as I can, and shew them, that if justice onely be desired (the pursuit of which lawfully and civilly is faire and honest) here it is to be had, it can never be deficient, if the execution of things be answerable to their institu­tion. Here it is commanded, That justice be administred as well to the poor, as to the rich, without any respect to be had of persons. West. 1. c. 1. Here (is said) It is provided, agreed, and granted, that all men, as well high as low, shall have and receive justice. Stat. Marlb. c. 1. The times had been unruly before, and many of the great men (saies the Statute) would not submit to the justice of these Courts, they would be judges in their own cases, distrain men grievously, and take such revenges as they thought fit. Stat. Marlb. ibid. Here, as another Statute, The Justices are to doe even law, and execution of right. 20 E. 3. c. 1. The supreme of these Benches after this alteration, dealt in pleas cri­minall, called placita Coronae in the books 4 Inst. 71 Stamp. Pleas of the crown. examined, and corrected errors, mis­demeanors, and offences against the peace, granted the Habeas corpus, and upon return of the cause relieved priso­ners, held pleas by Bill, for debt detinue, covenant, promise, of all personall [Page 162]actions of ejectione firmae, and the like against any in the custody of the Mar­shall, or any Officer of the Court, who may implead others in those actions, of all trespasses with force and armes, of Repleviu [...] Quare im [...]dit, &c. of Assise of Novel disseisin. These Justices are the soveraign Justices of Oyer and Terminer, of Gaole delivery, and conservators of the peace, &c 4 Inst. c. 7.. This Bench may grant prohibitions to all other Courts, to keep them in their bounds. The Chan­cery (as before) supplies the wants, and relieves against the rigour of the Law, in its extraordinary ju [...]isdiction; The Ordinary held pleas of s [...]ire facias to repeale the Kings Letters patents, of Petitions, monstrance of right, Traver­ses of offices, of partitions there, of scire fac. upon recognizances there, Writs of Audita querela, and scire fac' in the na­ture of it, to avoid executions there en­dowment might be there, by the Writ de dote assignands upon offices found, execution upon the Statute staple, or recognisance in nature of it, upon the 23 of Hen. the 8. Personal actions might be brought there by or against an Offi­cer, or minister of the Court, it is the officina justitiae, hence all Writs issue, it [Page 163]grants the Habeas Corpus out of Term Ibid. c. 8.. In the Court of Common pleas, or commune bench all real actions are deter­mined, and all common pleas mixt, and personal. Besides the Stationary Courts at Westminster, there were the Justices in Eyre, the sitinerant Justices. Charles the bald in the yeere 853. divided France into twelve parts, and over every of the parts placed men famous for Religion and Law, who yeerly travelling their own Divisions, took cognisance of wrongs done betwixt party and party, and of the publique offences according to justice. By which pattern King Hen. the 2. of England in the yeer 1176. di­vided this Kingdom into six parts, over every of which he appointed three Ju­stices yeerly to goe their Circuits Hoved. 548. M. VVestm. l. 2.39., though I know not why this institu­tion is made more ancient by others. These were followed by the Justices of Assize since in being, by whom they are swallowed up, their circuits are twice the yeere, and at certaine times, having the power of Gaol-delivery added, with the authority of the Justices of Nisi prius annexed; also the inquiry and determinations of many things else given by latter Statutes, and by another [Page 164]Commission of Oyer and terminer the power to deale with Treasons, Mur­ders, Felonies, and all misdemeanours whatsoever, they have one other Com­mission of the peace in the Counties of their circuits, by vertue of all which to­gether they sit. More perhaps cannot be devised for the ease of the people. Thus is justice brought to their own dores, the same thing with a fixed standing Court, and as it may chance more safe. The lesse the Judge is known in the Countrey, the lesse is the danger of si­ding or biassing. I speak not this as if I had more feares then other men, or were for any of the new jealousies, these are the feares of severall of our Parlia­ments. There is aprohibition in two Statutes, That no man of the Law shall be from henceforth Justice of Assises, or of the common deliverance of Gaoles in his own Countrey 8 R. 2. c. 2. 13 H. 4. c. 2.: and a third Sta­tute of confirmation is more full, it sayes, That whereas it is enacted, that no man learned in the Lawes of this Realm should &c. be Justice of Assise in the Country where he dwelleth, since divers men learned in the Lawes, &c. have by their means and policy, and for their own commodity &c. obtained to [Page 165]be Justices of Assises, in the Countries, and Counties where they were born, or were inhabiting, whereby some jealou­sies of their affection, and favour to their kinsmen, alliance, and friends, &c. hath been conceived and had &c. enacted &c. that no Justice &c. use nor exercise &c. as before 33 H. 8. c. 24.. Upon such like reason is there another Statute enacting to this purpose, that no Lord or other in the Countrey, sit upon the Bench with the Justices of Assise 10 R. 2.. And as nothing hu­mane (I might say divine too) fathered, somewhere, as high, as upon Lycurgus his Apollo, or the whispers of a Numa and his Eugeria, where Gods might be fancied to descend for the production, and caelestiall wisdom to flow into it, never so excellently contrived, can please all men; so perhaps whatsoever production shall or can be, it may have, if not its mischiefes and inconvenien­ces, yet some failings incident to the imperfections of man in it selfe, and by corruptions from without, their grace and flourish may be but short, nothing is so incertain in the taking as new Lawes, much must be ventured, much committed to fortune, and if according to the Saxon form (which is shewn is [Page 166]not yet extinguishd, and what is lost in jurisdiction, or rather in use in the lower Courts is supplyed, as is shewn too, by a way if not better, yet equal to it) stan­ding Courts were every where, and what is more daily open, at the Coun­treymans doore; This would not per­haps so much ease the honest just man, ever upon the defensive, who ever sues but for his peace, and the quiet preser­vation of his own right, as it would multiply vexatious prosecutions, some, the greater number, and the worst men, composed of malice and contention would be incouraged by it to molest others, the trouble and expence being so little, and the way to imbroyle so ready and neere, there would be no­thing but complaints, the Law, and its remedies would quickly he abused, they would be as great a plague as some men who onely say so, would have them imagined to be; actions would fly thick, and swarm so fast, one yeere would bring forth Volumes more swelling then all the Annals now read; and if every man might be the patron of his own Cause, (often his in justice) no­thing would be wanting to make the confusion periect, all decency and re­spect [Page 167]would be forgotten, for which nothing would be had but prodigious noise, and rude tumults, Farther, those who now are kept off by the conscien­tiousnesse of the knowing Lawyer, who has made a discovery into the in­justice of the cause, and oftentimes re­streines the heady client to run on, would presently be at the shock, fall into the danger of a trial, which (being blinded with their own fury, their ma­lice onely intent to hurt the adversary) they see not before how great it is, and however are too weak of themselves, were the right of their side, and most plain, to manage it to the best advan­tage. It may seem strange too, why the ordinary course of our Circuits should not now be sufficient, why we should need quicker returns of this sun of Ju­stice, unlesse we think our selves the worst of all men, and our age the most corrupt, every day falling further from the piety of our forefathers, and more prone to oppresse and devoure one ano­ther: were there a recession from the known Law, after a few of the first judgements) not to go on far) it may be feared, there would be no small discord and contrarieties in the determinations, [Page 168]where the Courts should be so nume­rous not derived from one fountaine, nor judging by one rule, that would be Law and right in one County, which would be wrong in another, and which is the greatest curse in the Law, that which should be most certain, would be without any certainty at all. To pro­ceed, instead of Conservators of the peace at the common Law now anti­quated, there are Justices of peace (of larger power then the Irenarchae of old) appointed to take care not so much of the publique discipline, and correction of manners; as for the peace and secu­rity of the highwaies Cod. Thead. in rub. de Ire­narch. l. 1.. Their name shews why they were instituted: They are in their sessions quarterly to heare, and determine all Felonies, breaches of the peace, contempts, and trespasses. They are to suppresse riots, and tumults, to restore possessions forceably taken away, to examine felons apprehended, and brought before them. To provide according to the Statutes for impotent people, and maimed souldiers, to punish rogues, beggers, forestallers, and ingros­sers, &c. to commit or bind over offen­ders to the Sessions, or Gaole; to take recognizances for the peace, &c. such a [Page 169]form saies the Lord Coke of subordinate government for tranquillity, and quiet &c. as no part of the Christian world hath the like, if the same be duly execu­ted. 4 Inst. 170. suites. There are other Coures for admi­nistration of justice, of narrower juris­diction, and confined in smaller limits (of some of which I have spoken before) yet able to put an end so small differen­ces, and ordinary trespasses, not to be prevented sometimes amongst neigh­bours, if men would be so contented. Who commonly themselves make the Courts below thin, and are the causes of the troubles they seem to detest; let the quarrel be as trivial as is imaginable, for an Asses shadow, yet as in some Countries the custome is to threaten they wil have a London proces for him, the poorest clownes wil trudge to Lon­don on foot from the farthest parts of the North, or West, more miserably then Carriers horses, and undoe them­selves (which is no hard matter) with one journey, rather then not discharge their full spight; who if they return not back as merrily as they set out, they may thank themselves. But because de­lay is charged up on the Courts, not onely as an heynous crime, but such as [Page 170]must by all means be born with them, inseparably inherent to them; some­thing I wil speak of that: I wil make it evident that delay is more odious to the Law, then to those who complaine of it, and that it bred from nothing else but the corruption without. We finde in the Saxon lawes not onely one which fines the Shieriffe (for doubtlesse of him is the word gtrtfan there meant V. Ll. edu. sen. c. 5.11.) who sentences not according to right, after the testimony of witnes­ses ibid. Ll. c 5., but also another; commanding the Shieriffe to keep his Court, to have his Assembly (which now we call the Coun­ty Court) as the words, and institution of King Edward the elder, every moneth; And that every man may have justice, and every plea an end at the day when it comes: whoso omitteth this (still as the Law) he shall make amends, &c. ibid. c. 11 like that of the twelve Tables, SOL OCCASƲS SVPREMA TEMPESTAS ESTO. We need not wonder that suits could be so prepared, or rather that so little could be in them, that they could be dis­patched in a day, if the plainnesse of the age before noted be considered, when the folcland the possession of the rural man passed without writing, and the [Page 171]bocland (not to be aliened if there were such a condition in the writing Ll. Aelfr. c. 37.) in a few words. No man might change any thing but in the presence of the gtrt­fan or Baily, or of the Masse. Prie [...]t, or of the Hordre, or of the Lord or the soile, &c Ll. Aeth­elst. c. 10.. and no man might buy be­yond twenty pence, but within a Town, before the Portgreve, other tenth man, or with the Shieriffes witnesse in the Folcmote ibid. c. 12. To look downward Magna Charta has it: We sell no man, nor deny, or delay no man justice and right c. 29.. It is a maxime in Law, Lex semper dilationes exhorret. The Law alwaies as (Markam) eschewes delaies 22 H 6.40. a.v. w. 1. c. 40, 44, 45. w. 2. c. 25. sta. Glou. c. 2.. The Barons of the Exchequer are commanded to doe right to all men without delaie 20 E. 3. c. 2.28 E. 1. c. 10., they are sworn to it 4 Jnst. 109.. The common Law re­quires often that full and speedy justice (according to the words of those w [...]its) be done to the parties Na. Br. 23.182. 4 Just. 67., all writs of Prae­cipe quod reddat, are, That justly, and without delay, he render &c. all Judiciall Writs are without delay &c. When any Court makes delayes, and will not give judgement, the Writ de procedendo ad judicium lies. The words of which are, Because the rendring of judgement of the plea which is before you &c. hath taken long [Page 172]delayes &c. We command you that you pro­ceed to give judgement thereupon with that speed which is according to Law and Cu­stome. When execution is denyed, the Writ of execution of judgement lyes: by which the Justices are commanded to canse execution to be done without delay of the judgement lately given Na. Br. 20. v. 2. J [...]s. 270, 271.. There was a Court raised by Statute for redresse of delayes in the great Courts, where yet the delaies are not imputed to any foul play of the Ministers of justice. The words are, Because diverse mischiefes have happened of that that &c. the judgements have been delayed, sometimes by difficulty, sometimes by diverse opinion of the Judges, and sometimes for some other cause, it is assented &c. a Prelate, two Earles, and two Barons henceforth at every Parliament shall be chosen, which shall have Commis­sion, and power of the King to beare &c. the complaints of those that will complain to them of such delaies &c. and to cause the same Justices to come before them &c to hear the cause and reasons of such delayes, which cause and reasons so heard by good advise of themselves, the Chancellour, Treasu [...]er, the Justices of the one Bench and other &c. shall proceed, and make a good judgement &c. if the difficulty were so great to require [Page 173]it, they were to bring the tenor to the next Parliament, Where a finall according (as this Statute) was to be taken, according to which the Judges were commanded to proceed to give judgement without delay 14 E. 3. c. 5.. Causes have used to be adjourned out the Courts, and to be determined by an assembly of all the Judges, called since the Exchequer chamber, as in Chudleighs case V. 1., warranted saies the Lord Coke, by the common Law, and ancient presi­dents before this Statute. The frequent use of which (so he) has been the cause why the Court founded upon that Sta­tute of Edw. the 3. hath been rarely put in ure 4 Just. 68.. There is a Court erected by Parliament for errours in the Kings Bench, as it is called by the Statute 27 El. 8.3 [...] El. c. 1.; and for those who love no errours, ano­ther Statute commands, That judgement be given after the demurer is joyned and en­tred, notwithstanding any defect in pro­ces, or pleading, other then such as the party demurring shall particularly expresse 27 El. c. 5. If things were truly looked into, we should finde delayes, and other indirect courses to proceed from the artifice, and unjust subtilties of suitors, of those who prosecute bad causes to infest and wrong other men; and from the cheating [Page 174]Mountebanks (a skum of litigious men of no rank nor quality, nor of any study in the Law) who undertake them, Im­postors more doted on then those of the profession, famous for their integrity and industry, really and honestly under­standing. Impostors rather to be listed under the notion of Incendiaries and common Baretors, then of any others, catching at any thing refused by the honest learned practiser, venturing to soder the most broken title, by sleights and false daubings, to the ruine at last of those who imploy them, though not without some mischiefe, and infinite vexation of the adversary, and the injust Client having consumed himselfe much, is encouraged not to flinshe, for what follows is blown up with fresh hopes, tampered with new shifts, and arts of reviving, till he has given himselfe wholly up, till he is wilful, and at last like a Gamster swearing over his last stake, he loves every tergiversation, and struggles with all his power and cun­ning to avoid the disgrace, and losse of being overthrown; when he must see while there is any justice left it cannot be avoided: but when this blow hits him, though himselfe was the worker, [Page 175]and the motion began and continued from his own hand, then he implores the faith of God, and man. Hence is a never dying quarrel to the Lawes, the justly deserved calamity is imputed to nothing else. If deceits, and wrong may not be secure, and happy, the Lawes shal be cursed and blasphemed, like Tacitus his Gods, rather carefull of any thing else then to provide (as he prophanely) for our safety. But in these exceptions to the Lawes the kindnesse would be wonderfull, if the professours should goe free (as it might) we meet with an old censure which at the first fight seems something, Councel­lours. which includes the profes­sors of all Laws alike, it is this, That the Lawyers of the best quality and fame, one and another, all of them, sel­dome refuse any man; and since their cannot be a right of both parties, often­times defend the wrong, which in good conscience they ought not, nor cannot wish should prevaile. To this I reply, every right is not clearly seen; nor e­very wrong suddenly known; 4 Rep­preface. of late some Statutes are long, and full of per­plexities, ill penned; here are late and new inventions in assurances, which the eye of the Law before never beheld; [Page 176]Many unskillful Empericks are employ­ed about wills, and Conveyances, where if the words of their general president, or receipt (if they have any) will fit the sense of the party who conveys, 'tis well, and lucky, otherwise the patches of their own prove dangerous. And some ambiguities in clauses and expres­sions may happen which cannot easily be tryed by any law before, nor can any Councellour very often assure himselfe, he may give his opinion conjecturally, and probably, and that is all, accidents alone, the act of God may make things litigious, which it is not in the power of the most wise to prevent. The law­yer himself too may (not stranges a a man) make his mistakes, something may slip from him imperfect, which may trouble others to judge. Sua­rez speake [...] excellently of this. — For whereas (says he) such is humane condition that a man can scarcely expli­cate his sense in so perspicuous words, but that often ambiguities happen, espe­cially in laws of men, which are briefly and generally delivered, therefore in ap­plying them to various cases in particu­lar, many time doubts arise, to take away which, the Legislator either not in be­ing, [Page 177]or at hand to declare his intent. The opinion of wise men, and interpretati­on doctrinal is necessary, out of which necessity comes the skill of the Civill Law, weighty, (because in every Art the judgement of the skillful of that Art is of great moment) and inducing at least probability (that is all) for if all were of one minde, they would make a mo­ral certainty in these things l. 6. deleg c. 1.. The Sta­tute raising the Court for delays before­mentioned, makes it plain there may be, not onely difficulties, but diversities of opinions, in the Judges too 14. E. 3. c. 5., there may be postnate cases, which could not be foreseen in the laws, where all remedies could not be comprehended, nor are all things which follow in confimili casu. The Statute of exemplifications begins, For the avoiding of all such doubts, queste­ons, and ambiguities as have risen, and been moved, &c. in and upon the 3 and 4 of Edward the 6. 15 E. v. 32 H. 8 c. 26. The declarative Sta­tutes are commonly made to take away doubts, and incertainties before. Nor is this any wonder that the Councellor should guesse at the case, when in the ex­traordinaries, in things strange, and un­discovered, the Judges themselves some­times are divided. Of the case of the [Page 178] Shellies, and the Unckle, the Nephew, in Queen Elizabeth her time, the Lord Cooke reports thus. After the said case was openly, and at large argued by the Councel of either party in the Queens Bench three days; the Queen hearing of it, (for such was the rarenesse and difficulty, so he, of the case being of importance, that it was generally known) and out of her gracious disposition to prevent long, tedious and chargeabl suits betwixt parties so neer of blood, which would be the undoing of both of them, Gentlemen of a good and ancient family: commanded the Lord Chancellour to assemble all the Ju­stices of England before him, upon confe­rence to give their resolutions. Which they did, one Justice disagreeing. Chudleight case in the same report is said to be so difficult, and of so great consequence, it was thought necessary that all the Justi­ces of England openly in the Exchequer Chamber upon solemn Arguments should show their opinions in it, where the chief Baron and Justice Walmesly are dissenters, as also Justice Gawdy in part. Till the first of king James, there were but four Judges of either Bench, and many times (as the same Lord Cook 4. Rep. P [...]af.) in cases of great difficulty, the Judges being equally divided in opinion, the [Page 179]matter depended long undecided, for prevention of which, this King added a Judge to either Bench. Retractations may be allowed in law as well as in di­vinity, a man may differ with himselfe, believe and apprehend truely and inge­nuously, and with Judgement this way or that way, and after when he shall hear the reasons of others, and the same case debated solemnly by the most grave most wise, and most reverend of the pro­fession, not onely startle and doubt, but but believe and like the contrary of what he liked before, truly and ingenu­ously still, without any blemish of dis­honesty or falsenesse to be stuck upon him for it: truth is said to be the adae­quation of the speech with the species, and if here any mi [...]take be, as there may, the falsenesse is in the notions, not in the man who speaks, and think [...] he speaks truth. I know no reason, where there is no leading judgement to sway, why the professors of the lawes should certainly be supposed to know the right, and on which side it is, as if infallibility were so ready, or likely to be, where (as the Mirrour joyns them) There is no law nor usage, and where there are no presidents to direct. Cases not be­ing [Page 180]included in any words of law, may be compared with the reasons of other cases, according to similitude fancied, and opinion so produced is but an in­certain and weak knowledge thus, or thus, which yet may well be otherwise, every man knows how far the Topic argumentation comes short of the ne­cessary; further as Sir John Davies, When is right, or wrong manifested up­on the comencement of a suit, before it is known what can be alledged, and proved by either party. The Councellor, when he is first reteined, hears onely one part of the matter, and that also from his Client, who ever puts his case with the best advantage for himselfe, after plead­ing of the parties when they are at issue, when they have examined witnesses in course of equity, or are discended to a tryal in course of law, after publication and hearing in the one cause, and full evidence delivered in the other, then per­haps may the Councel of either side di­cern the rigt from the wrong, and not before. But then are the causes come to their catastrophe, and the Councellours act their last part Praef. ded. f. 6, 7.. Thus as there are diversities of opinions amongst the pro­fessours of the lawes; we see there are [Page 181]invincible reasons why sometimes there must be such diversities, and I would gladly know where there is any general agreement of mindes. A great man of the Clergy, but no great lover of the laws, or lawyers, notes one Judge very hastily determining against others, do not Councels often do the same, the la­ter quite thwarting those which went before, and what he grants? are not Di­vines divided against Divines, not only in things of Ceremonie, but of Faith? If we look upon other Arts and Scien­ces, we might think all things made from Heraclitus his principles, that strife was the father, what dissonance of opi­nions, what knots never to be untyed, (sayes the incomparable Petrarch upon the discourse of discord) are there a­mongst the Philosophers? Who can number the varieties of their Sects? what conflicts amongst Rhetoricians? what discords of all Arts? what clamours a­mongst the Lawyers? (those of the Ci­vil Imperial lawes) how well they a­gree, the immortality of causes proves. Sick men can witnesse what concord there is amongst Physicians, what un­likenesse of mindes is there about things sacred, and Religion; where the diffe­rences [Page 182]are oftner tryed in the field then in the Schools Petr. de remed utr. fort. 429. l. 2.. By no other law is it said, is unlawful maintenance, Cham­perty, or buying Titles, so severely pu­nished, as by ours. By what other law (askes the most learned Knight) is the Plaintiffe for false clamours or in­just vexation, or the Defendant for pleading a false Plea amerced, the amercements in Magna Charta (of w^ch hereafter) were instituted to deter men from injust suits, and defences 2 Inst. 28, the French impost of 100 sous upon the Processe, is thought injust, yet sayes the Republique, never was any so ne­cessary in this Realm, where there are more suits then in the rest of Europe; which have sprouted chiefly from the time of Charles the sixth, when by Edict the ancient custome to condemn those in costs who had lost the cause, was cassed Bod. Rep. 889. By the Saxon lawes he that denyed another his right either in boc­land, or folcland before a Judge with­out any right forfeited to the king 30s: so the next time, the third time the kings o [...]er hyrnysse, 120. s. for his con­tempt Ll. Ina c. 8. Ll. Edu. sen. c. 2. Ll. Cnuti c. 7., such lawes as these which might fright troublesome spirits, are of high necessity; yet I think where mens own [Page 183]Consciences restrein them not, the pu­nishment of laws would not prevaile with all men. Nor can we expect any continual peace from vexatious suits, nor any security from delayes & deceits in them, till a Christian generous hone­sty diffuse it self every where, and there be a general perfection of charity and love in every man which is not easily to be hoped for. France may be famous for its sprightlinesse, Spain for its gravi­ty, Germany for the arts, what clime is renowned for any such honesty: Unles the new Atlantis can be found again, and its Idea of a Commonwealth, the Ma­gick Region of the Moon throughly dis­covered, and it lye hid there. Or Euphorn Barclaie may be believed of his Lusinia so unlike the whole world beside. Of which that it breeds men worthy the genius of the place, and of their own fortune, (for so he says) if it be the Country some think he means, he may be credited, for the rest of the innocency, & piety of the people, it is more then I can say of my own know­ledge, and I would lead no mans Faith where things are not plain and certain. Other causes of multiplicity of suits in these latter ages are observed by the Lord Cooke to be, first peace (noted before c. 2.) [Page 184]In the reigns of the kings, Edward the 3. Richard the 2: Henry the 4, the 5, and and 6. and Edward the 4. Peace was but like the short Sun shine of a winter day, overcast as soon as seen; nay the reigns of some foregoing Princes, as of King Stephen, John, and Henry the third were almost a continual civil war, some­times known under the notion of the Barons wars. Then as sayes the first Statute of Westm. in the Preface. The estate of the realm, and of the Church was ill kept, the Religious of the Land many ways grieved; The people otherwise intreated then they ought to be, the peace lesse kept, the laws lesse used, and malefactors lesse pu­nished then they oughtWest. 1.3. E. 1.: Then the great men would not be justified, have and receive Justice in the Courts of Justice Stat. Marl v. 1.. Plenty, dissolution, and dispersion of Monasteries, &c. Informers, concealers, multitudes of Atturnies, more then are limited by law are next made causes by him 4 Inst. 76. His rea­sons of decrease of suits follow, and are these. The Statutes of 35 Eliz 3. and 21 of king James, c. 2. Have given full remedies concerning Monasteries, the 21 of that king, c. 4. concerning informa­tions, the 4 of Hen 4. c. 18. has made pro­visions concerning Attornies, they are [Page 185]to be examined by the Justices, their names to be put into the Roll, the good, vertuous, and of good name to be re­ceived, and sworn well and truly to serve in their offices, and specially (still as the Statute) not to make suit in a forreign, Country, The others to be put out, and if any be notoriously found in de­fault of Record, or otherwise, he is to forswear the Court, and never after to be received. The Statute 21 of king James in the 3 chap. has provided against Monopolies, and new projects, in the 8. against abuses in procuring of Super­sedeas of the peace, and good behaviour; the 23 chap. against vexations delays by removing Actions out of inferiour Courts. The 16. chap. appoints a li­mitation of Actions, gives them age and death, it allows in the common Action of Trespasse, Quare clausum fregit, where it is by negligence, or involuntary, to plead tender of amends; the 13 chap. pre­vents and reforms Jeofailes, the 28 ch. repeals many obsolete Statutes, the third of King Charles more. The Petition of Right being a confirmation after other Statutes of the same kinde, pro­vides for the rights, and liberties of all men; for the quiet of their estates, and [Page 116]persons 3 Car., enough to satisfie those, who are not desperately resolved the more reason they see given to take off their dislike, to dislike the more. But it may be feared as it is more easie to hate then to shew a cause, Non amo te volusi, — worse then beastly wilfullnesse some­times must be allowed: and the mean, and contemptible malecontents are not more guilty of this immodesty, then many of the better sort, and who in­deed may be learned in their own Stu­dies, or Professions, and therefore will conceive themselves able to judge all o­thers, not considering how ridiculous it would be to heare an old Physician censure the order of the Imperial, and Swedish battels: a m [...]er plain Captaine, the Aphorismes of Hyppocrates, a Gram­marian or Pedant condemned to noise by rule, the Mesolabes of Arebimedes. The most Reverend Judges of the Com­mon Law, have ever been the most care­full of all men, where things were in­termixed out of their learning of the Laws. (though not out of their know­ledge sometimes) to call into the de­cision, the learned of those Arts, or Sciences to which they belonged. That every man is to be belieued in his own [Page 187]art is their maxime. We pray in aide, saies Justice Saunders; when any thing falls out in our Law concerning other Sciences, and faculties. This is honou­rable (saies he) and commendable in our Law; by this (as he goes on) it ap­peares we despise not (I may say, how ever able, for some of this robe whom I could name many easily match those who by their own favourers are thought to have gone furthest in generall lear­ning) other sciences then our own, but allow and commend them, as things worthy of commendations Plowd. com. 124. v. r. 7.19. Upon this reason was Huls (a Batchelor of both the Lawes) sent for by the Judges in the time of King Hen. 6. to heare his Legick (as tis said) upon the difference of precise and causative compulsion 7 H. 6.11. Again, where an appeale was pretended, for which excommunication should not disable, the Judges enquired of the learned in the Canon law concerning the vigour of the appeal [...] H. 6.25. They use to enquire of Surgeons concerning maihem Com. 125. [...]1 H. 7.33., as Gaws dries case. They ever give faith, and they ought to give faith to the sentence of the Ecclesiasticall Judges. (still there) This is the common received opinion of our bookes r. 5. 1. p. 7. and in another place, Though it be against [Page 188]the reason of the common law V. 4.29.. Our pre­decessours (as the Justices, Brown and Stamford) in things touching Gram­mer, have used to consult with Gram­marians, and to pursue their rules Plowd. com. 122, 127. and the books there.: This love of our selves is the most dis­honest of all others, an Empire in sci­ences is not often heard of, some studies may imploy a long age, those who will be thought so sublime that they fill all places, beyond the Sunne, and Heavens way, sometimes may be observed to fly weakly, to flag, an Eridanus, or perhaps the earth receives them. In Gellius; Fa­vorinus a Philosopher, no overweener I think, much esteemed, by this relator, high in name and opinion out of this curiosity, quarrels with the Lawes of the twelve Tables with no great good luck, as he was met with, he shall be my example, how easie it is for him who will be at all to miscarry somewhere. He had read over he saies the twelve Tables (which was some­thing, his exceptions may seem the more reasonable) as eagerly as Platoes ten books of Lawes. One would think he was pleased wel enough with Platoes laws which he read so very eagerly, yet the Athenians and Polybius justly re­prove [Page 189]them for vain lawes, which no Nation of Greece could ever be perswa­ded to use Athen. l. 12. c. 22. Polyb. l. 6.. The Lawes of the Tables which dislike him were these: This de injuria paenienda SI. INJƲRIAM. FAXIT. ALTERI. VIGINTI. QƲIN­QƲE ARIS POENAE SƲNTO which at three farthings the assis (it was no more) he saies was triviall, and would deter no man from doing injuries. Some things in the Lawes he supposes inconsistent, as in that of the Talio, SI. MEMBRVM. RƲPIT. NI. CVM. EO. PACIT. TALIO. ESTO. The Talio, or like for like, was to be, unlesse he that did the mischiefe satisfied him that suffered by him, and redeemed it. This Talio the Philosopher thought was impossible to be just; the breaking by retaliation might be too much or too little. That of dissection and partition of the debtors body, being bankrupt, he charges as most cruel and horrible. The words are AERIS. CONFESSI. RE­BƲS. Q. JVRE. JVDICATIS. TRI­GINTA. DIES. JVSTI. SVNTO. POST. DEINDE. MANVS. INJECTIO, ES­TO. IN. JƲS. DVCTIO. NI. JVDI­CATVM. AVT. QVI. ENDO. EO. IN JVRE. VINDICIT. SECVM. DVCI­TO. [Page 190]VINCTIO. AVT. NERVO. AƲT. COMPEDIBVS. QVINDECIM. PON­DO. NE. MINORE. AVT. SI. VOLET. MAIORE. VIN ITO. SI VOLET. SVO VIVITO NI SƲO VIVIT QƲI­EM. VINCTƲM. HABEBIT. LI­BRAS. FARRIS. IN DIES. DAT [...]. SI. VOLET. PLƲS D ATO. TERTIIS. NƲNDINIS. PARTIS. SECANTO. SI. PLƲS. MINƲSVE SECƲERƲNT. SE. FRAƲDE. ESTO. This which willes where there is morbus, or aevitas, fickness or age, that the party appear be­fore the Praetor jumento vectus, which he abhors as a new face of a funeral. It saies, SI. IN. JƲS VOCAT. SI. MOR­BƲS. AEVITAS. VE. VITIƲM. ESSET. QƲI. IN. JƲS. VOCABIT. JƲMEN. TVM. DATO. SI. NOLET. ARCERAM. NE. STERNITO. These are all his ex­ceptions, and for these (as it may seem) in his words, There are things in the Laws most obscure: some hard, some gentle, and remisse. Sexius Caecilius (as Gellius) famous for his knowledge and use in the discipline of the Laws of the Romans, and for interpreting of them, answers for them, Thus. The obscuri­ties are not to be ascribed to the fault of the Writers, but to the ignorance of [Page 191]those who cannot reach them, long age weares out both words, and ancient manners, in which the sense of the laws are comprized, he tels him the tables were composed three hundred yeeres after the building of Rome, 700 yeeres, or little lesse before their times, he de­fires the Philosopher, to give over the endeavour of defending and opposing what he listed. To consider more grave­ly what the things are he reprehends to leave a while the Acad my with its dis­putations. He tels him that the sicknesse, named in the last Law (for there he be­gins) was no grievous sicknesse, such as might make it inhumane to cite any man. Morbus sonticus is the Law term to expresse that. That jumentum is not a beast but a carriage here, and that without this carrying to the place by law, the party summoned might make an everlasting essoine. He sayes, in the first law of injuries onely lighter inju­ries were meant, besides the AS, anci­ently was a pound weight: for greater injuries the Talio was used; which he grants could seldome and hardly be done according to the words and mea­ning of the Law; but he sayes in that, The decemviri intended chiefly to re­straine [Page 192]violence by fear. Nor did they think so much consideration was to be had of him, who had maimed or broke any member of another, and would not agree with him to redeem the Talio, where he had his election, as to make it materiall whether the hurt was wilfully done or not, or whether there were that exact justice, and equality in the Talio, which is required by our Philosopher. And how can it seem cruel (saies he) That that should be done to thee which thou hast done to another. For the other of the creditor cut in pieces, he givs these reasons. The Romans (so he) esteemed nothing so venerable, as the Publique and private faith, also in contracts as well as other duties, in the use, and com­merce of money lent. They thought this help of temporary want, which the com­mon life of all men stands in need of some time, would not be had, if the per­fidiousnesse of debtors might deceive without some grievous penalty, which went by these steps: after judgement the debtour had 30 daies allowed him to procure the money, if he paid it not, he was delivered by the Pretor to the Cre­ditor &c. yet might he redeem himselfe within 60 daies, after three of the great [Page 193]markets he paid the score with his life, &c. The creditors (if more then one) being permitted to cut the body into pieces, a punishment denounced with the intent never to come to it, that no man should suffer it. Necessary for ter­rour sake, because wicked men contemn addiction and bonds; yet never as he (in his knowledge) put in execution. Can any man imagine (saith he) that we should see so many as now we doe, lye, in giving their testimony, if the judgement in the twelve Tables were not antiquated; That the convict of this crime should be thrown headlong from the Tarpeian rock. The sharpnesse of avenging offences is the discipline of living well and warily. These things (saies Gellius) did Sex [...]us Caecilius dis­course, all that were present, and Favo­rinus himselfe approving and praising him Gell. l. 20. c. 1.. He that dotes not too much on his own great parts, that is not too much an admirer of himselfe, will not think the law an easie study, that its height can be taken at a distance, often­times in other learning we goe about till we meet a choise author; and one such as he may be, may serve the turn: It is not so here, where many year­books, [Page 194]many book cases, and judge­ments (not extrajudiciall opinions and conjectures of private men too frequent every where else) severall Statutes, with the common customes make but one body, and are all to be read and known; whose bulk as it is not so ample, to weaken the firmnesse, or soundnesse of the constitution, or make the symmetry of the parts lesse admirable, yet cannot it be subject to the carelesnesse of the first fight, and let the eye be never so stedfastly fixed, I know not who can judge the Architecture of the Escurial by one piece, or perhaps upon the ascent of the first staire. The most knowing, Sir Henry Spelman saies of our law, that it is perpetuis humeris sustinenda, it re­quires the whole man, revelation is of litle use here. Those who are really what they seem, and more, may say, as Ari­stotle does of all men, The greatest part of the things we know is the least of those we know not. But we are told of such as are not thought so onely, but are wonders of men, who have the world of knowledge within them, li­ving, walking libraries, men of strange parts. It is reported of Lodovico Pontano of Spalato, that he could not onely re­cite [Page 195]not onely the titles of the lawes, but also the whole body, yet he dyed in the thirtieth yeer of his age. Of Suae­rez that he could cite any place of St. Au­gustine in the very words of that father. Of Abulensis.

Of the Earles of Mirandula, of the Scaligers, we are told admirable things, of Ioseph, that he could be asked no­thing which he was not able presently to give satisfaction in; besides the tongues the Nubian too which he was most excellent in he had left (they say) no Science, no Discipline untouched. Of others that they knew as much of the Civil Law, as the great Civilians, yet could not be ehought to have lea­sure to salute it a far off: who has not heard of the father of Venice?

If any such there now be (as well there may, nature we see by these examples of the last times is no weaker then she has been) of so firm memories, of so hap­py judgements, they are exceptions to my limitation, and are not to be confi­ned, if they be not too delicate to ad­venture, [Page 196]they may be ranked amongst those who do not invade. Such men have reputation to lose, which they will not hazard slightly, they will consider of things, and know well what it is they censure. Whensoever they appear, they cannot appear but as friends, there can be no danger in them. Haste, and ig­norance are onely to be feared, if haste, (as Livie of it) be improvident, and blinde, what can ignorance be thought to see. Every man ere he gives his cen­sure of Laws, ought to read them over from the beginning to the end, to look into them throughly according to that, In civile est nisi tota lege perspecta, una ali­qua particula proposita judicare, &c Leg. in Civivile. st. de leg.. up­on one particle proposed, the whole is not to be judged. To the understanding of laws, the words alone are not enough the intent of the Legislator, the reason and end why they were given are to be enquired. By the words of the Law is meant their propriety and signification, which will not quickly nor without pains be known. The intent of the Le­gislator, is his preceptive will, seldome found by the words, abstractedly, and nakedly, but by the adjuncts, the matter, or circumstances. This is the intrinse­cal [Page 197]form. The reason of the law is on­ly the end moving the Legislator to make it (not composing substantially the law constitutive) to which the pre­cept, and will of the Legislator is to be accommodated. This if not expressed in the law, but devised by the interpre­ters, is but a probable conjecture. Every disadvantagious act of a drunken man by our law touching his lands or goods binds him. Nay, and touching his life too, if he kill a man he is hanged for it rep. 4.124 Plow. Com. 19.. By Pittacus his law amongst the Greeks, allowed by Aristotle Polit. l. 2. c. ult., if he had struck any man, he was to suffer double as much as if he had done it sober. Some lawlesse good fellows would thinke all this very unreasonable, in a law onely intended to punish the wrong done ac­cording to the grievousnesse of the of­fence. Since it is evident that mischiefs deliberately done (as they may say per­haps) with advice, and malice, are na­turally lesse pardonable, and therefore worthy of more severe punishment. But as M. Plowdens report although the drun­ken man kill out of ignorance it helps not. This ignorance was his own act and folly, he might have resisted it, and shall not be priviledged by it, as the [Page 198]Court in that place of the Lord Cooke. His drunkennesse is a great offence in it self, and extenuates not, but aggravates that which follows, whatsoere colour­able reasons may be given, this boldnesse is rather tolerable in an Hotoman a stran­ger, then an English man. The law is the act of the whole body politique, and ought to over-rule every part of it, to binde every man, the actual assent of e­very single man is not material, nor does the dissent of a single man disoblige, we are tyed by our forefathers, their publique submission to these lawes (at their free liberty, and with their consent made 25. H. 8. c. 21.) their acceptance of them long since, bindes us, unlesse the revocation be, by the same universal agreement, which I believe is not like to be had. As a most reverend Lord chiefe Justice, strangers by living here, do tacitely sub­mit themselves to our lawes, and forms of Law-making their grant and consent is involved in the consent of Parlia­ment ch. Iust. Hubard. rep. 271.. Much more of the naturals, and if all mens judgements (which may be as unlike as full of diversity as their faces) must be satisfied with reasons of laws long since established, or to be set up, it wil be impossible any old law shoud [Page 199]hand, or any new law take. Besides, all publique authority (to which onely the power of lawgiving belongs) would lose its reverence. As the Mirrour. No creance, no belief is to be given to the vain voice of the people, The Iudges. they are to obey the laws, not to dispute them. We have have our [...] as well as the A­thenians, who are judges of the laws, of the reasonablenesse of them, and who are to see them observed. King Edward the first, said by a most reverend chief Justice long ago, to be the wisest king that ever was 5. E. 3. c. 14., speaks thus in a Statute, where we may see what antiquity attri­buted to the honourable Judges of the laws, The king wills that the Chancellour and the Justices of his Bench shall follow him, so that be may have at all times neer him, some sages of the law which be able duly to order all such matters, as shall come unto the Court at all times, &c 28. E. 1. c. 5.. All the Justices of England, and Barons of the Exchequer, (as the Lord Cook) are as­sistants to the Lords in Parliament 4 Inst. 56. They were more then assistants to the Barons, their Writ was (for they had their Writs too) Quod intersitis nobis­cum, & cum caeteris de consilio nostro super pramissis tractaturi vestrumque consilium [Page 201]impensuri. They were to treat with the king and his Councel, and to give Coun­sel. As Mr. Crompton, they were to be de­manded for the Law Jurisd. 2. Postnat. 22, 23.; a Statute more an­tient then the former begins — All of the Councel, as well Justices as others, agreed that the constitutions underwritten, &c Vid. Stat. de Bgam.. And again, It is agreed by the same Justi­ces, &c Ibid. i. 6.. The Statute of Marlbridge sayes—For default another day is to be assigned according to discretion of the Jud­ges c. 13. Mar [...]b., and discretion of the Justices, and the Common Law are joyned 1 c. 26. ibid,. The Statute of Westm. 2. for damages in ap­peals has — According to the discretion of the Justices W. 2. c. 12, in another place, Where­as the Justices in the plea of Mortdancester, have used to admit the answer of the te­nent c. xx., the Statute 27 of Fines, is accor­ding to discretion of the Justices 27. E. 1.. All the Judges of England gave their Answer to the Articles of the Clergy 3. Jacobi, which the Lord Cooke calls Resolutions of the highest authority in law 2 last. 001., as upon the xx. chap. of Westm. 2. by that he says it is confessed, That admission, and al­lowance of the Iustices ought to be holden for Law 2. Inst. 399.. In the Parliament 19 of Edward the first, Sir Thomas of Weyland chiefe Justice of the Common Pleas having [Page 200]abjured, &c. for murder. His wife and son Petition the Parliament, for a Ma­nour which the Lord of the Fee had seised as Escheated, in which Sir Thomas had onely an estate for life, joyntly with his wife, but the inheritance was in the son by fine. There were sum­moned says the Record. as well the Iu­stices of either Bench, as the rest of the realme, &c. expert in the laws and cu­stomes, &c. The resolution speakes, Before the Councel, &c. there being cal­led the Treasurer and Barons, and Iustices of either Bench, it is agreed, &c. The fa­mous case of conveening Clerks before the secular Magistrate, was debated in the time of a Parliament of Hen. the 8. the Iustices, &c. being present, and ruled according to the opinion of chiefe Iustice Fineux a most reverend Judge 7. H. 8. Kelle vay. 183.. Reason­ablenesse of time for tenant at Will, dis­charged, to carry away his goods, of incortain fines of Copy holds, &c. is to be adjudged by the discretion of the Judges Inst. 57.59.. Distresses, are by the Statute of Marlbridge to be reasonable c. 4.. No more is said. The Judges have ever yet determined that reasonablenesse as they have ever (ordinarily) what is reasona­ble in other things, just and injust, right, [Page 202]and wrong, what are evil customes, and what not, according to the Laws, they have the use and customes of judgement, saies a Statute De Bi­gaem. c. 1.. Good reason then that they be Judges of that use, and those customes, They may claime this autho­rity by a long prescription, it has been allowed them in all Parliaments, and by all Parliaments hitherto V. 1 H 7. 3.4.20. 3 Just. 3.. They in all the books doe not onely expound, interpret, and deliver the sense of Sta­tutes, but in Parliaments too, upon con­sideration of a Bill in the 43 and 44 of Queen Elizabeth, it was resolved (so we finde a book speak) By the chiefe Iustices Popham and Anderson, and by divers other Iustices assistants to the Lords of Parlia. ment in the upper House. That leases to the Queen &c. against the provision of the 13 of El. are restrained by the same act 5. Rep. p. 2.14.. The Lord de la Wares case concer­ning disability temporary and absolute was (in a Parliament sitting) referred to a Committee, which at the Lord Burg­ley's Chamber in White-hall heard what could be said by Councel in the presence of the two chief Justices, and of divers other Justices, by whom it was resolved Rep. 11.1.39 El.. Here is an allowance of the latter, as wel as former ages, whatsoever the change [Page 203]may be: let us change till we shall not know our selves, if we retaine any face of Law, or Judicature, so it must be. I never heard (nor those who have heard more) of such a Law yet which could be learned, practised, and understood, without study, and which all men, but those who had studied, and understood it might be Judges of. The professed enemies of the Laws of England, as such lawes, have not been many, no not in very many ages, much stirre there was, much disquiet ere they were had, or ra­ther restored. Never any tumults all the Histories ore to undoe what was setled. I doe not remember any other Law, named against it, but the Law of Wat Tylers mouth From this day saies Tiler (in Lon­don) all Law shall fall from Wat Tylers mouth., which we can make no­thing of: we heare of Kets Oke of re­formation, nothing of his Lawes. The Lawes never were made the title of a rising: yet I believe under such lea­ders little of the building would have stood whole. Those of the Roman heresie are and have been inveteratly spightfull, have more then once at­tempted to blow the Lawes, and the Nation into the ayre together, ac­cording to that divine determination of the Jesuiticall Oracle, that the inno­cent [Page 204]may be destroyed with the wicked the Wheat plucked up with the tares Act. p. 93.. They would have blown up all our Laws, though all of them are not accu­sed, not slandered by them, not in what I have seen of theirs, though likely they shal all have their turns, not one of them not yet perhaps traduced by them, as they are offended by it, if it keep their mischiefes from ripening, and be exe­cuted against them (though much more ancient) then our quitting them, and their heresies (and approved by their own Clergy here) but it shall be re­proached by them as one of our Sta­tutes, Our Laws though necessary and re­ligious against them (being called by them) cruel Laws 3 Jac. c. 1.. The Statutes of praemunire and provision &c. are abominable. Par­sons the Jesuit, that fury of sedition, charges the Law of Cawdries case high­ly, and with the least dangerous Pon­yards and daggers of his society wounds (as he thought) the reverend reporter. Andrew Eudaemon, as others Cacodaemon Johannes in love with the Straw miracle of the Gunpowder Martyr Garnet, con­demnes our Laws and Courts, and the triall by twelve men, like Polydore Vir­gils Ghost, in his words. He was of [Page 205] Crete, so he saies, and if we believe him in that, we must believe him in nothing else. The Jesuits were ever undermining, ever active, full of plots and treasons, and their hatred cannot be imputed to any other cause but this, for the ills they had done, they feared the barre; yet this arro­gance they might take from the house of pride, of which they were. The Prince of which has ever (till we left him, where he had left the purity of the first ages) encroached upon our Lawes and government, praetending every where a certain assistance of the holy Spirit, for w^ch he is to be obeyed, a course I would advise those to take, who inveigh next, and have nothing to say to the purpose. The Pope (as the Venetians in the inter­dict tell the French Kings Ambassadour) attributes to himselfe authority to define, and determine even against the opinion of all the world, what Lawes are just and un­just, as Dr. Marta. Besides the kisse of the blessed feet, he has the free faculty of ma­king and abregating Laws D' jurisd. c. 46.. Whence this authority is derived, some are not assured, they referre it to the spirituall authority with which the temporall is imagined to be indirectly given. Others speak plainly, that he is a temporall [Page 206]Monarch over all the earth, that he might receive appeals from Princes, give Laws to them, and annul those made by them. That Ecclesiasticks are to exa­mine whether the Lawes of Princes be just, and whether the people be obliged to obey them; if we doubt this, think it with the most; if we tell the flatterers and Parasites of this chaire, the former ages heard nothing, not a word of all this. They may reply in the words of Paul the 5. That the former Popes did not wel understand themselves a great and certain mark of this present infallibi­lity. To keep on the old course of pas­sing from the matter to the persons, there is yet another quarrel of this kind, which I wil speak to in a few words: There is one fling at the Officers, at the ministers of the Law, and Courts. If there be any imperfection, any negli­gence, omission, or mistakes in the exe­cution of things (as it is but an huge folly to conceive men so full of faith­fulnesse, and vigilancy, but there may be) I see not why this should be a ble­mish to the Law, unlesse it may be thought to favour murder or theft, be­cause they are done, Lawes can but for­bid and punish offences, if the vices or faults of men must asperse sciences, pro­fessions, [Page 207]and orders, and be an argument to demolish, there wil not any where be either science, profession, or order left: and long agone, had this been heretofore allowed, there had been none of these left to demolish.

The Writs of the Law, Writs. of which I shal next speak, are said by those who are for the Becselenisme of the British an­tiquity to precede the Normannes: the word [...] is used by Zonaras for an Epitome, or concise writing: a writing which conteines the sum of any matter, it may goe amongst the Graecobarbara D. Spelnt. verbo Bre­ve.: from the Empire it came to the Church. Those of Rome a long while have had their Apostolicall Writs. In the Lawes of King Henry the first, amongst the publique offences for which men were amerced to the King, after breach of the peace which leads the order, follows the contempt of his Writs Ll H. 1, c. 13., where they are first heard of. These Writs at the first were but the Kings letters, the Monkc of St. Albanes makes them the same. In the controversie betwixt Wil­liam the Chamberlaine, and Gilbert of Cymmay concerning the Church of Lui­ton. A certain Writ of the King (mea­ning Hen. the 2.) saies he was brought, [Page 208]as a praecept to the men of Luiton, to re­cognise the truth of the right of the Church, &c Vit. Abb. 67.. Another place, has atta­ched according to the law of the Land­by the Kings Writ ibid. 143. elsewhere they are called Letters, the Letters of the King, and of the Chiefe Justice are set downe in this Historian, ibid. 75. who againe in the Majority of King Henry the third saies, — It was provided of the commune Counsell of the Arch-Bishops and Bi­shops, that the Lord the King should have his Seale, and his Letters should run. Addit. ad Paris. 151. In the Chapters of the pleas of the Crown, in the time of Rich. 1. recited by Hoveden an Historian somewhat more antient then the other is said. And of all recognisances, & of all pleas summoned before the Justices by the Kings Writ, or of his Chiefe Justice, or from the chiefe Court of the King, Hoved. 744. v. 549 in another place the Writs of King John then Earle of Moreton, are said to be taken (with his Messenger) containing his commands —(his Mandates) by the Major of Lon­don, who delivers them to the Arch. Bishop, &c. who calling before him, &c. the Barons showed them the Letters of Earle John, and their tenour. id. 735. s. 30. A Writ with us, is a rule of Law, which briefly [Page 209]tells a thing, Bract. l. 3. c. 12.15.413. which in a few words de­livers the intention of him who brings it; some vary according to the diversity of the Cases, Facts, and Plaints. There are as many formes of them, as there are kindes of actions; they ought not to containe either falsenesse or errour. No man is bound to answer without a Writ. Fleta. l. 2. c. 12. l. 6 c. 35, 36. Brit. c. 84. The Civill Law makes this necessary, it makes citation parcel of the Law of Nature. C. de uno­quoq. F. de re indiciar. &c. c. 1. The Writs as Doctor Cowell containe a summary and succinct repe­tition of the fact, which brings forth the actions: Instit. Ju. Angl. l. 4. tit. 6. well may the Lord Cooke tell us they are so artificially and briefly compiled as there is nothing in them re­dundant or wanting: Inst. 73. and Sir Thomas Smith, Secretary of State, and Privie Councellor to Queen Elizabeth said, It was not possible perspicuously to comprebend so much matter in fewer words. Concerning the execution of Writs, the direction, returnes, and processe, &c. upon them, he who would see what a strict care the Law takes, that things be done justly, speedily, and without deceit, must search into particular cases which it would be too tedious here to tarry upon. Pleadings In the next, it will not be impertinent to con­sider something of the Pleadings in the [Page 210]Actions of the Common Law, which whoso shall well consider, he shall not finde them so horrible as some imagine them, nor the formes so intricate and dangerous as they are misconceived: Pleas must not be confused and misor­dered. First, the Jurisdiction of the Court must be pleaded to, then the per­son, &c. Every Plea is to be direct, not by way of argument, &c. and to betriable & pertinent to the pleader, it ought to have its proper conclusion. Things apparent need not be averred, surplusage if not contrary to the matter, hurts not; It must not containe multiplicity of mat­ter to the same thing; there must be cer­tainty and truth in Counts, &c. the re­plication must not depart from the Count, nor the reioinder from the Bar, &c. The Count must agree with the Writ: if time, order and forme were not observed in these things, the Judge and the Jury would be intangled invincibly, and Suites would be endlesse. If we look on the Libels in the Civill Law, and the Declarations of the Common Law, on the defences of the one, and the barres of the other, on the judgements of them both, we shall finde nothing in those of the last too narrow, nothing which can be [Page 211]left out. The example of the action of injuries, and of the action upon the ease which are the same, are compared by M. Fulbeck, Paral. 10 Dial. 67. I will say no more of the Li­bell and Declaration but this; That the first exceeds the last very much, neare a third part in length, things quite differ­ing in nature, enough to encumber the understanding being brought in. I will onely compare (yet not at large) the de­fence of this action of Injuries, of a lesse bulke then the Libell, and the barre in the action of the Case, after a tedious recitall of that which makes little, of the malice, &c. of the actor, after a long prayer to be absolved, and that the ac­cuser may bee condemned in charges, stretched neare to the length of twenty lines, where the Latin runs (as in all Lawes it must) rather in a legall then an eloquent stile. The defence speaks thus, Inprimis igitur dicit, ponit, asserit, et qua­tenus opus crit, prout supra Justificare in­tendit, Quod ipse praeventus seu denuncia­tus ex nobilib. Catholicis, legalib. probis, et in omni genere virtutis exercitatis paren­tib. seu genitorib. traxit originem, item di­cit et ponit quod dictus intitulatus, et prae­ventus vestigia dictorum parentum suorum toto tempore vitae suae insequens fuit et est [Page 212]Catholieus, legalis, probus et bonestus, absque et prae­ter id quod, Titius praedictus queritur de eode intitulate seu praevento, aliqua laboraverit infamia, sinistra suspicione, ant mala fama; item et quod semper pacifice et quiete inter omnes se babuit et conversatus fuit omnibus prodessendo, et neminem laedendo seu offen­dendo. item negat se dictum Titium pulsasse, verberasse, &c. farther on. How is this recitall of the parents and their Catho­lick virtues, &c. pertinent, to make the party innocent, and the Libell malice. The ordinary plea in barre (compre­hending the generall issue) at the Com­mon Law, goes more roundly off, and has no more words in it, then are of use and substance, being thus, after saying, That the def. comes by his Atturny and defends the force and injury—Et di­cit quod ipse non dixit, non retulit, nec pro­pagavit de praedicto W. verba predicta &c. modo et forma quibus idem H. superius ver­sus eum queritur, et de hoc ponit se super patriam, et praedict. H. similiter &c. He de­nies that he spake the foresaid words, in the manner and forme which the same H. above, against him complaineth, and of this he putteth himselfe upon the Country. What can be more briefe and neat? the defence here is made in fewer [Page 213]words then are abundant, and to no pur­pose in the other. The Judgement in this action is five times the length in the Civill Law, of that of the common Law. He that shall find in some of the bookes, pleadings as hee may imagine of a stu­pendious frightfull length, if he looke into them, will finde, where a title has bin many wayes setling, many acts done, many conveiances passed, through w^ch it is derived the case could not be shut up in a lesse space. That they are onely formall, legal, orderly narrations, where nothing is superfluous, nothing imperti­nent. Those who would be taken for the fine wits, Termes of the Law. men beyond the Harp of Or­pheus, who can make the stones and posts dance to the gingle and tune of their Harmonious sentences bred in the shade, (who when they are out of the noise of the wrangling Schooles, won­der at every man, and are wondered at as much, thinke they are in another world.) I say these delicate supestitious ones who have heard of little else, and would not trouble themselves too much, loath and abhorre the monstrous bar­barousnesse of the termes as they speake. But if their Schooles and Philosophie were tryed by Tullies age this barbarous­ness [Page 214]might be returned upon themselves. As the Bishop of Ʋirste, no Law consists in words but in the sense; not that which the common people or Grammarians bring, but as use and authority affirme. Cencil Trid 660. Epaminondas was praised for his life, not for his discourse, which was not the courtliest. Law is like Petrarches, vera Philosophia: which as he, non fallacibus alis attollitur, et sterilium disputationum ventosa jactantia per inane circumvoluitur sed que certis, et modestis gradibus compendio ad sa­lutem pergit. Lightnesse of dresse, & false, & artificiall haire, and decking is below the gravity and majesty of lawes, sub­stance is onely to be looked for, simpli­city and brevity are grace enough. There is a sweetnesse, a comelinesse of neglect, what is more may abuse and deceive. Laws are not to perswade but command, Reason & Solidity are to be reverenced for their owne sakes, we finde no great eloquence in the first Doctors of our faith, nor was it needed, truth the more naked it is, is the more lovely. It seems our constancy is barbarous, and because through all the changes which mortali­ty and God himself have mad, with our sacred Saxon institutions, wee retaine many of the termes as much Saxon, (be­sides, [Page 215]our Lawes as is proved, are neither derived from a Greeke or Latin Foun­taine) this must be abominable to those that doe not understand them; to those who whatsoever they know abroad are ignorant at home, thus must the pure Greeke be barbarous to the moderne Greeke, the Latin to the Italian and o­thers, (called so by Michael the Emper­our to the no small displeasure of a Pope) the antient Hebrew to the latter Siriack, an objection which industry would remove, and after I am confident, those things would be as pleasing & as admirable as now in the dark they are ugly and terrible; the German is a mo­ther tongue. I see saies the most knowing Sir Henry Spelman, very many words, & termes used by the French, Italians, and Greekes, to acknowledge the Saxon Fountaine (at this day unknowne to the present Germans) and by the testimonie of Conrad Gesner, the Saxon is said to be the most antient of the German Dialects, and next approaching to the antient Gothish, whose Manners and Laws, with their termes not yet antiquated we have drank in. Pr. f. ad Gaess. By the knowledge of this language of our fore-fathers (as Master Lisle) we may finde out the Etymologies [Page 216]and names of our words now used, we may adde of our Townes, Rivers, Hills; &c. Offices, Dignities, Magistrates, Roy­alties or Priviledges of Mannors, and of our Courts, most of which were of Sax­on originall, all which the most simple cannot think were taken up at random. The Saxon as the mother German is harsh in the sound, nothing so smooth upon the tongue, nor pleasing to the eare, as other languages where Conso­nants are more sparingly used, or left out for the advantage of pronuncica­tion — but this Excellency it has (for which all Europe ore it cannot be out­gone, and generally is matchles in) that it borrowes lesse, and is more copious, & significant then others, which I thinke might yet be showne; for though time as it uses has made its alterations, there are words enough of use still to expresse our selves in, without raising from the dead any of those which have been bu­ried long agoe and where there can be no progression, I know no reason why it should not be as lawfull to restore some of the softest of our own to their birth, and honours which would quickly bee as familiar to us, as to take in from France and Italy, strangers every day. I [Page 217]make a question excepting the Teuto­nick, whether any language of the West, without being beholding to the Greeke or Latin, can in their owne Idiome ex­presse, Creator, Saviour, Redeemer, Spirit, Trinity, Majesty, Divinity, Eucharist, Bap­tisme, Crosse, Passion, Resurrection, Temp­tation, Remission, Communion, Greed, Sacri­fice, Prayer, Confession, Grace, Repentance, Regeneration, Humility, Faith, Hope, Cha­rity, Zeale, Sanctity, Truth, Glory, Law, Ju­stice, Peace, Honour, Nature, &c. with infi­nit others in the Saxon. The Saxon hath words for Vnity, Deity, &c. for co-equal, co-eternal, invisible, incomprehensible, incarnation, ascension, descension, for Catholick and all such words (saies Mr. Lisle) which we are now faine to use, because we have forgot better of our owne which is much. Sax. Men­pres. The ten Com­mandements, Lords Prayer, and Apostles Creed, are not beholding for one word, nor the Nicene Creed, both Creeds re­taine Christ, and one has Apostolican, not out of any want, for they have words of their owne which signifie the same things, (ge gmired is used for Christ, and Aerenrdac is Nuncius (A­postolus) a Messenger) but because the generall custome of keeping these two, [Page 218]and commune use have made them as names not well to be changed. If wee looke upon the translations of these in any other language, we shall not easily finde the like. The Saxon Bookes some­times take in the Latin, but when it hap­pens seldome without necessity, as being to expresse such things as were neither knowne nor in use amongst the English Saxons antiently, as Sacerd a Priest, Se­alme a Psalme, Calic a Calice, Ele Oyle, Win Wine, Fic a Fig, Ymnan an Hymne, Leo a Lion, Draca a Dragon, &c. in such cases where it is lawfull to infranchise Forraine words, though V. Scalig. Excerc. 294 297. 307. barbarout. The tables compared with the latter La­tin, will make it appeare our Language alone has not changed, and that the termes of other antient Lawes are more obscure then ours; As Polybius, the best antiquaries could very hardly understand the articles of the first League betwixt the Ro­mans and Carthaginians.L. 3.I have inter­preted them (so he) as diligently as I could. The Duilian beaked pillar at Rome to be seen to this day (as Mr. Brerewood) in the Capitoll, in memoriall of the annuall Victory got against those of Carthage in the first Paenic Warre, about 150 yeares before Cicero may be wondered at, where [Page 219]the e. is used for an i. the c. for g. the o. for u. xf. for ff. s. is added superflu­ously, in the middest d. in the end of word s. and m. left out, &c. as navaled for navali, Triresmos for Triremes, Ex­sociont for Effugiunt, Leciones for Legi­ones, Cepet for Cepit, Pucnandod for Pugnando, Claseis for Classes, Numei for Nummi, there may be true Reliques at Rome; however of the Roman anti­quities, and this may be one of them, I will not suspect it, yet this is certaine — The Lawes of the Tables, the Frag­ments of them which now are to be met with, hundreds of yeares more antient, come neerer to the purity of the best Latin by much, somewhere there may be found an obsolete terme, but the stile is farre from this rudenesse, and Gram­maticall enough, and I cannot tell whe­ther the Roman speech at the time of the first Paenic Warre not much more then 150. years before Cicero could be bad. C. Navius one of the most antient Ro­man Poets Gell. l. 17. c. 21. a Comicas vareo stipendia fecit —served in this Warre; in the 8. yeare of the Peace after this first Warre, and in the year 521. of the City, he presented his playes before the people. See the verses ut on Scipio Gell. l. 6. c. 18. Sae the spee­ches, &c. of Cote, Scipio, &c. and o­thers then. His Epitaph made by himselfe speakes thus [Page 220]

To omit Plautus, Ennius, Caecilius, neere those times, the most excellent of all Comedians Terence, within 30 yeers of this (or thereabouts) is famous: and if the pillar speaks true, here is the suddenest change of a Language, that ever was heard of. We finde the saying to hold still, ‘Verberum vetus interit aetas Cadent. Quae nunc sunt in bonore vocabula volet usus.’ But though words die, and yield to use which first got them credit) which has the dominion over them s yet where things remain and live, words cannot be left by which they are signified; for besides that after a change of termes, the old yeer bookes would be as hard to be understood, as the older Latine. It may very well be thought the new termes [Page 221]might come short of the former, and not expresse with halse that fulnesse what they shall be intended for; the termes of all sciences as is observed per­haps could not so effectually expresse the full sense of the matter in the purer Latine, if that alone wil be liked. Dr. [...]owel a most learned Civilian, in the preface to his Latine Institutions of the Common law, gives this reason why he observed strictly the forms of expres­sion in it. I use (saith he) the words of the Lawyers, lest being carried away with the conceit of polishing, or the endeavour to deliver things more elo­quently I should not reach the whole sense; certain words are so fitted (so he still) [...] to the shape or figure of the Law of England, that they are terms of art, and prescript formes plainly, and otherwise expressed would lose their native integrity: his example is in ma­king or waging of Law Prefat.. Some of them are of necessity to be used, as the words, Mayhem, Burglary, Feloniously, Murde­red, Ravished, Exchange, Warranty, Frankalmoigne, Frank marriage, &c. and cannot be expressed by a way about, by periphrasis. No others never so soft and smooth can serve the turn; and [Page 222]who wil take the paines, either from the Glossaries, or from the Saxon it selfe to be acquainted with them, wil finde them as significant as any words of art in the Greek, or any other Language, the Law lies in their force and proprie­ty, they wil finde the learning of a par­ticular Law unfolded, and understood in the term Affidare, Placita, Placitare, Nuda pactio, contractus, praescriptio, are slum, interesse, executio, executores, certio­rare, alienatio, with divers others may be met with in the Civil and Canon Lawes; those which are not wholy used there in our sense, differing but little Guardia, guarantiso, wadium, Alo­vium, Bannomentum, Treuga, Forisfacta, Fidelitas, homagium, relevium, felonia, &c. in the fendes, and if calumniari be thought wrested where it is used to claime or challenge, so farre, that Dr. Cowel conceives it a blow given to Pris­cian, never to be forgiven: it is as much wrested in the proeme of the Institu­tions of Iustinian, where calumniantium iniquitates is, by the addition expoun­ded) calumniantium (as it) capitur generaliter pro omnib-delinquentib.) for all offenders: a blow which Piscian must take more unkindly then the for­mer. [Page 222]The Law Imperial flowing from a Latine head professed by Orators, pa­trons, and advocates, who spake no other language, our law of the Land acknowledging nothing lesse then such a beginning (as is said) & which wil be thought admirable, not at all the more unhappy for it. I know no reason why the same words should be thought un­handsome in our law, and elegant, and beautiful in another: and as laws (which is noted) if all the hast imaginable were made for a change, could not in our daies arrive at that fulnesse and excel­lency to comprehend and redresse thou­sands of those wrongs which now we finde remedies for.

The decemviri imployed about the Tables thought they could have com­prised all accidents, they fell short in their account, all the bookes in the world, saies Bodin, cannot comprehend every case which may happen; for after all the additions possible, it wil be found that perfection of lawes must be the labour of ages, and that experience is the best and onely happy Lawgiver. So would there be the same length of time required for the new termes. Time is followed at the heeles by corruption, [Page 224]and ere our descendents shall make up what we shall leave imperfect (if our change be not disliked and changed by them) they that shall invent the last terms, perhaps without some key or o­ther, wil not be able to understand the first. The length and change of time will make the next as obscure as these; if we look upon our own language, and not so far back as Robert of Glouce­ster, and others of the most ancient Eng­lish writers, if Sir Geofry Chaucer, and John of Lidgate be compared, who calls him master, and betwixt whom there are not many yeeres, it may be seen how quickly it altered, as since the raigne of King Henry the eight, we know it has sufficiently changed again. It was the observation of the illustrious Viscount, that books writ in modern Tongues could not be long lived: he expresses it in the term for bankrupts cito decocturos, they would quickly break (which was the reason why he caused that most ex­cellent piece, his Augmentation of Sci­ences to be translated into Latine) &c. So that I cannot yet finde why the an­tiquity of our termes should be a cause of change. It is ridiculous to think o­therwise. The Lawyer must speak the [Page 225]words of the Law: nor can the proces, and forms of the bar be expressed in neat and fine language. Cicero l. 1. de Orat. Orat. pro Caetin. Gell. l. 20. c. 10. de voc. ab. ex. jure manū consertum. Cicero himselfe is observed in matters of Law to speak like a Lawyer, ordinarily using the terms. Ennius does the same in those

l. 16. c. 10. And in this, ‘Proletarius publicitus scutoque feroque &c.’

And as no other Law can gain any thing of ours in reason, as little can they gain of us in phrase, if the stile be compared with the purity of the speech they are written in, the stile of the Impe­rial laws with the purer Latin. This I wil illustrate only with the designe to make it cleare that this homelinesse of anci­ent habit is not a rude fashion taken up alone by our Law. I wil observe somewhat of the Civil Law out of the [Page 226]professors of it, that we may see our Lawes onely have not been censured, are not onely subject to censure. Perinus in Justinians life runnes in a long inve­ctive against Tribonian (as he is called) the architect of the Pandects, and of the whole Law, whom out of Suidas, he calls wicked, impious, a contemner of Religion, far from Christianity, a de­ceiver, and fraudulent, perswading the Emperour that he should be assumed like Enoch, corrupt, basely covetous; so that the law lost much in the infamy of so wicked and pestilent an author. Where he speaks of the Laws, he saies, Tribonian and his fellowes were like cruell Chiriergions, who cut to the quicke, and which he cites Budaeus for; That they have left the Pandects rather curtailed then compendious, fearing out of su­perstition dregs, and things obsolete, they have heaped up matter out of the drier volumes, and drawn that which wil not quench any mans thirst. So that (as he goes on) in the framing the Pandects, you would rather think they slept, then that they digested any thing rightly, and compendiously. Justinian in the Proem to his Institutions suppo­ses an huge confusion before, call [...] this [Page 227]a desperate worke, and walking in the middest of the deep. The body of it then was confused, & of infinite extent sayes the Glosse. The Code, sayes Sis Th. Ridlye a Civilian, is a barbarous Thracian phrase latinised, such as never any mean Latinist spake: for themethod it is rude & unskilfull, where it departeth from the Digests, yet the knowledge of it is more expedient then the knowledge of the Digests, because it determi­neth neteers in daily use of life View of the Civil and Eccles. law.. The Di­gest is said to differ but little from the best Romane speech, but what it has in words it wants in substance, as the same Knight, the learning of it stands in discus­sing subtile questions, and enumeration of opinions, in which there is more wit then profit. Againe, this Digest or Pandect, as an old Glosse strangely, a, [...] totum, c. Pan­dectarum. & [...] doctrina, which is said to be drawn out of 150000. or as others 300000. verses of the old Law indigested and abolished, needed exposition and a­mendment. The Compilers were not so quicksighted but that sundry antinomies (as this Knight and Budaeus) or contrary laws past them, they were too subtily Writ, and needed explaining; besides, in the Digest every case falling out in common use of life was not decided, [Page 228](for it is enough that Lawes look up­on that which is likely most often to happen) nor, as our Knight, was it pos­sible, every moment new matter fals out, for which former Lawes made no provision, which was the reason why the Code was set forth, and why the Athenticks, or Novelles followed. Be­ing the Princes resolution of doubts con­fused [...]y put out, as the Civilians abroad confesse V. Lex Ju. Civ. ve bo Novellae.. The Feudes, as the same knight, were drawn partly out of the Civil Law, partly out of the Customes of Millain, but without either form or or­der Ib. View 69., before the Cornelian Law of Jurisdi­ction of the Praetors, they were wont led away wich covetousnesse or ambi­tion, out of favour or spight, variously to give judgement, Changing and altering the laws they had set forth in writing. The Cornelian law commanded, Dio. Cuss. l. 36. 1 That in the entry to their office, They should publish what law they would use, and ob­serve it. I will not say there is any such incertainty now, yet where there are so many Doctors interpreting the Text, so many Comments, such multi­tuddes again interpreting them, without a miracle there cannot but be great di­straction in opinions. Hence it is that [Page 229] Gentilis and Alciat require, that the au­thorities, and cases of the Doctors be weigh­ed, not numbred Gentil. l. 3. Epist. Alciat l. 4. perarerg. c. 17.. Which is otherwise in our Law, where the judgement of any man whatsoever is not of authority, nor is any thing binding but the determina­tion of Courts, and the rule of judge­ments before. Lawes are not causes of strife, but the variety of senses which is put upon them, we are told of a con­stitution of Pope Nicholas the third, up­on the rule of that Monster Francis of Assise, in the argument ambiguous, and doubtful enough, yet did it never trouble the Order, all Glossers, and Commentators be­ing forbidden to meddle with it Concil. Trid. 660.. He that puts out the Imperial institutions, sayes he has added the cases, or Themes as they call them of Cornelius Vibulanus, Ha­ving rejected the old as barbarous, and use­lesse, and that he has cut off part of those Notes taken out of the Commentaries of the Doctors, which are called small accessions, because (so he) very many of them were partly wide of the marke, no­thing to the purpose, partly absurd, andri­diculous. Till of late, there was never any glosse upon our Littleton, and now that which is, is made up out of the re­solutions and judgements of Courts, [Page 230]not as if Littleton needed any confirma­tion, One of whose cases was acknow­ledged for Authentick by four Judge in the time of king James, with this ex­pression, That they owed so great reverence to Littleton, they would not suffer his case to be disputed, or questioned Mich. 21 Jac. B. C.. The Civil Law hath its circumstances, and excepti­ons, the anomale before, and in the con­testation of the suit, to the Fact, of the intention of deceit, fear, &c. tempo­rary, perpetual. Its formulae, or solemn forms, by which let the matter of Fact be never so orderly related, if either no conclusion, or an unfit one be collected from it, the whole libell falls. Some­times sayes a French Civilian of the Parliament of Paris, a Proces is determi­ned by contrary arrests, differing from others preceding, then which is pittiful, this clause is added to the Text of the arrest; Without drawing it to consequence, or the motive (I believe not alwayes) is registred. France (sayes this Bodin a­gain) bas more laws and Customes, more Proces and suits then the rest of Europe be­side, and more have been prosecuted in the last six score yeeres, then in a thousand be­fore, which have througed in more and more (as he goes on) since that Charles the [Page 231]seventh and his successours have begun to people the realm, with lawes made after the mode of Justinian, with a long train of reasons against the forme of the antient Or­dinances of the kings, and sage Legislators, he addes. Where laws are few and simple rather commanding then intreating and reasoning, Commonwealths have flourished to a wonder under them. Whereas others with their Godes, and Pandects in a few yeers have been de­stroyed, or troubled with seditions, or the mischiefs of Proces, and wranglings immortal Repul. l. 1927 l 6.. By the multitude of Au­thors, and Doctors, as the illustrious Viscount, the law is torn in pieces, the Judge astonished, and the proceedings everlasting Angm. Scient. 691. We may see (as this French man again) enough of these suits aged one hundred yeers, as that of the Earldome of Rais, so well managed, that the parties who made the entrance into it are all dead, and the Proces yet alive. Nor are the terms of the ancient laws of the Tables to us now who know not the propriety of the first Latin much more winning, more graceful then ours. Where they are certainly antient, they will seeme as hard to the first sight as any, and their sense as strange after, as the sound of o­thers. [Page 232]As that Senates should be used for revolters, reconciled & reunited. Fortes for good men never revolted Tab. c. 49. Paupe­ries in the law, Siquadrupes pauperiem fecerit, &c. Should signifie hurt or da­mage c. 15.. Proletarius (a word which a Lawyer in Gellius takes to be of Gram­mer learning, and when he was shown it in the tables is content to say; he had not learned the Law of the Faunas and Aborigines) a poor Roman whose rate in the publique valuation of good was 1500 Asses, or one that did nothing for the publick but get children Gel. l. 16. c. 10. Tab c. 44.. A famous Grammarian being asked what those words out of the ancient Actions, (in jure manum conserunt sayes the tables) ex jure manum consertum mean, sayes he taught Grammer. A way of suing they signifie, which he had never heard of v. Gell. L. xx. c. 10. Godwin. antiquit. l. 3. c. 21.. That retanda flumina in an old Edict, should be rivers to be cleered of trees growing in the Channel, or upon the banks, and hanging over from retae such trees Gell. 11. c. 17.. This of the tables will appeare as strange as any thing. QVI. SE. SI. ERYT. TEST ARIER LIBERI. PENS. VE. FƲERIT. NI. TESTIMONIƲM. FARIATƲR. IMARN BYS. INTE. STABILIS. QƲE. ESTO.Idd. 15. c. 13.A. Gellius [Page 233]in his ch. where he asks the question up­on manum consertum, speaks thus of the learning of the laws, and the termes, I have thought fit to insert into my Com­mentaries whatsover I have learnd from the Lawyers and their bookes, because he that lives in the midst of things, and men ought not to be ignorant of the most famous words of civil actions. Amongst the later terms which are pro­per and necessary for the sense they serve many of them would trouble much our over curious Sirs, they would not willingly be brought to an acquain­tance with them. Such are Suitas. The quality of the heir inducing a necessity of succession, the definition of which has perplexed some of the Authors not a little; yet no worse doubtlesse then the Haecceitas of the Metaphysicks, as is confessed by them, it is unheard of of old, but say they, in those things which by degrees are received, and become of use, we ought not too strictly to eye our selves to the Canons of the Grammarians. Alciaet who is known to all the world, often used the word, superesse rebus; Which is used for overseeing and managing anothers businesse, more then Gellius ever knew, or thought of, where he blames another [Page 234]false, and strange signification of the word, which sayes he was inveterate, and got strength not onely amongst the rabble, but in the Courts, it being ordi­nary to say bic illi superest, for he is the Advocate of such one l. 1. c. 22,, neer the last sense.

Secta which is used for Reason, in­terleverit for deleverit, insidiare, for insi­diari, infecta for corrupta, honestus, for dives, which is a great depravation, re­formare for rescindere, prodere for dimittere, per aversionem emere, which is to buy by the lump, tenuta seisin, venter a woman with childe, or as Alciate a posthumus; fusiones publique Functions. Whoso shall turn over the Laws of the Frankes Lombards, Boiorians, and other of the Teutonick Nations, he will meet Mor­moes, and Goblins formidable indeed, such as the most knowing glossaries must be contented to recite only, or wisely to passe by in sacred silence, which yet will be read by those who admire not them­selves and their own age too much; who will allow in some proportion both wisdom and civility to their forefathers and are curious to be satisfied how they lead their lives, upon what policie and order the Empire of the German Franks & [Page 235] Lombards rose, and moved, for however governments may begin, Justice & good lawes assure them, give them vigour, and continuance, lasting violence had been a fire, which suddenly would have burnt their Trophies; these German Con­querours how fierce soever they seem in their first appearance (of all which might be said which is related of Me­zentius, Dextra mihi deus, &c. Or the Quadi a part in that Eductis mucronibus quos pro numine colebant, the sword was their deity) spent the yeers of their en­trance into their Provinces to compose mindes, their first peace and rest from the turmoils of war, was ever dedicated to the polishing, and smoothing of those foundations, which else laid with too hasty and too rough an hand would have fallen alone. Augustus was more happy in his moderation then in his vi­ctories, it might be thought he subdued his Country to preserve it, his peace was so sweetned by the equity and clemency of his laws, that all the calamities of the triumvirate and its proscriptions were forgotten, no tears were left but such as the whole world powred out to his memory. There is its honour due to antiquity, yet there may be met with in [Page 236]the lawes of these people, (though they seem what Du Bartas speakes of Marots verse, torne Monuments, and age worne Images) that policy, and excellency of constitution, which if we will not imi­tate perhaps we can never exceed. It is observed for the honour of our English that an Earle of Arundel in his travels to Italy, and the Lord William Howard in his Government of Calice, although they understood other languages would not speak to any stranger but in their English. And that Cardinal Woolsey in his French Embassie would not suffer his attendance to speak any tongue else to the French. And I know not why our English where it is more pure, and lesse corrupt where it is a mother tongue and the best Dialect of a mother tongue should not have the esteem it is worthy of.

It was made none of the least of venerable Bede's praises that he was lear­ned in it. A great man before mention­ed rather transported with choller against som of the Profession, and in­directly I thinke then out of his own judgement is very angry at the Law, which he says cannot passe the Seas. It were wonderful if it shou'd, who looks [Page 237]that neighbourhood alone should make Nations like the same things. I have shewn already what great agreement there is betwixt the French and us, e­nough to make it evident they and we had but one stock, in Constitutions more ancient then the Civill Law there; and it takes off nothing, though our Law would not be known in the Courts at Paris. This Author grants (no man he sayes can deny it) it is a sacred, both Thing and Title; our professors wil not envy the learning of Brissonius his Lexicon, or his formulae so much praised; and it is confessed we cannot shew any Terms of law like them, yet are ours to as much purpose; they interpret the words of art of our homebred Lawes, and I cannot tell what is to be required more. All men may know, that as there have been additionary Laws since the Saxons, so have there necessarily been additionary termes since, which according to the custome of the times, when the Law began to speak French, were French: and when they began, as good perhaps, and as pure French as any then spoken. The leagues and a­greements concerning the Sea betwixt King Edward the first and other Princes [Page 238]shew what the old French was by these words, soffrera, souccours, resceipts, Pees, Trewes, subgitz, forspris, nadgairts, &c. D. Seld. Ma. Claeus. 267, 276. The Lord of Argentons History much later manifests what the language was, and how it has changed. These terms are so enterwoven (as the Lord Coke) into the Lawes, they cannot possibly be changed. I wil appeal to any man who understands the modern French, for many of them are yet retained by it, whether any words can more aply hit the sense which these signifie; there is a supposition where these objections lie, that if the great Lawyers abroad should come hither, much amazed they would stand at our voucher, cited for a big word like to tear the ear; but unluckily brought in, it is yet in the French advo­care, to vouch, call in aide in a suit, and certainly was understood by some of the great Lawyers, Rigaude and Bignon being such as had the word bene antique indeed, would not have been amazed at it. They were not confined within the knowledge of their own age onely, what is much to Bignon's honour, Sir Hen. Spelman acknowledges himselfe owing to him for many things in his Glossary. Garrantie is the same yet with [Page 239]our Warranty, Pleviner to plevin, give surety; saisine is yet seifin, rebutter to repell, as the heir with us is repelled by the Warranty of his ancestors. Larcin is theft, fellony, robbery; fee demain, or domain, prescription; Escbet, rent, as we use them; nampt is our naam, halfe withernam a distresse, briga (with which by this author in another place the professours of our Lawes are reproa­ched, and have the stile of his barbari­ans) has been continued amongst them ever since Edw. the 3. before which it was but rarely used, yet is in the modern French, viz. brigue for it, signifying contention or wrangling. The onely man abroad who may seem an adver­sary, is Hotomanne a Civilian, very lear­ned, but I believe not at all in our laws; a man of a peevish heady temper, who writ against his own State, and fled for it: yet is he not so much an enemy to the Laws of England, as to Litleton's tenures, the book so called, which very probably he never understood; in his Comentary of the feudall word in the word feudum, he writes thus: Stephane Pasquier a man of an excellent wit, &c. gave me an English Litleton, in which the Laws of the English feuds are discoursed [Page 240]written so rudely, absurdly, and with­out method, that it appeareth easily to be true which Polydore Virgil in the Eng­lish History writes, That foolishnesse in that book contends with malice, and the study to calumniate. Here is his own judgement seconded with the censure of that uncleane beast Polydore, whofree­ly indeed (as is said) railes in that book against the Law; yet no where in it (I think) once naming our most reverend Judge Litleton. He cals the Laws in just, and the Lawyers or interpreters of them ignorant, speaking of those of the time of William the 1. upon a supposition that the most of the Lawes were Nor­manne. He, and his book are said to be of great account by Dr. Cowel in as much esteem with the students of the Common law, as Justinians Justitutes are with the Ci­vilians, saies the famous Clarencieux. The Lord Coke sayes, This is as absolute a booke, and as free from errour as ever was writ of humane learning Pres. up­on Littlet. r. 2.67. r. 10. Epist., according to the Judgement of a Court before. Litle­tons word wil passe every where, ipse dixit carries things, as Master Fulbec. Litleton, is not the name of a Lawyer, but of the Law it selfe: more then can be said of any Civilian, one or other. Dr. [Page 241] Cowel blames his Civilians much, that shey were not onely guests and stran­gers, but infants in their own Com­monwealth, that the most know as little of our Law as the common people; and I cannot imagine how by a sight of Litleton, Hotoman should know much; it is not unreasonable (notwithstan­ding all his learning) to suppose with Littleton alone, he did not understand Litsleton; it would be taken, as justly it might, either for foolishnesse or malice, indeed the greatest possible, for the highest impudence, if any man, so much a stranger to the terms and Language, at the first sight, meerly by guesse, should as slightly condemne the Pandects, (full of contradictions, and needing exposi­tion and amendment, as is before shewn out of the Civilians themselves) where­as Littleton is as fundamentall as any Law can be; and every sentence of his is a principle. Nor can any man but wonder at the expression of malice and study to calumniate, the book through (by which we may see how it is under­stood) being onely a bare collection of special cases, under their titles, or heads, authentick and binding, because it is made and composed partly of the customes of the ages [Page 242]before, partly of the judgements of Courts, and of the Statute lawes with­out any controversie with any man, without any reflexion upon any other law, upon any mans person or works (saving that once he saies he had heard say, There was one Judge Richel who setled an estate intaile with perpetuall remainders, with that clause of perpe­tuities since used, but against law, that upon alienation of the eldest sonne, &c. his estate should cease &c.) meerly ay­ming at the publike good; which makes me thinke, here must either be a great mistake in the sense, or of the book it selfe: Litleton then was not Litleton now. The uneven ruggednesse of the French wil not suffer any man to be eloquent. Laws (as Cicero) ought to be be deare unto us, and to be prised, not for the words, but for the publike profit, and the wisdome of the Lawgiver. Yet is not the stile of Litleton rude, but plain (as the best French then was plain enough, neither neat nor quick, as will appeare by the Lord of Argentons stile noted be­fore, who lived in our Judges age, and writ then) most befitting a Judge, and the gravity of the subject. To the ab­surdity of the writing part of the in­vective charged in the slander (which is [Page 243]true as is shewn from testimonies of the side of the old glosses) I wil reply but this, it should have shewn how, and where; otherwise this is a generall charge which has nothing in it, but the malignancy of an enemy, from whose rash and unjust censure, the happy memory of our Judge may justly appeale to those who know him. It is a childish impotency of the mind, out of vainglory to calumniate illustrious per­sonages, farre enough either from ho­nesty or discretion. The haughtinesse of Pompey to raigne alone is with the most: nor is it fair to bequarrel and hate all other Nations because they drink not the Loire or Rosne, or submit not to I know not what universality: as if Alexanders world were returned again, not to be ruled, but by one Sun. What concludes here, and makes up the aggra­vation, is extended farther by others, and made a cavil (it is no more) against the Laws, That our Laws want method; Method. never yet so much as a pretence to abo­lish laws. How easily the Pandects may be matched for method, I shall demon­strate by the order of the Common law of England. After the Curiate laws of Romulus, those of Numa concerning Religion, the laws of the other Kings, [Page 244]all taken into the books of Papyrius, and therefore called the Civil Papyrian Laws, the twelve Tables followed, then the Flavian, Helian, and Hortensian, the Honorary Law of the Praetor: the lawes of the people called Plebiscita, the decrees of the Senate called Senatus­consulta, the law of the Magistrates, and customes, the laws of the Princes frō the law Royall, the opinions of innumera­ble Lawyers, many of which are recited by the second Law of the original of the Law: their volumes were huge, saies the Emperour Proaem. Instit. 5.. There were as the glosse three hundred thousand Verses, Laws, or answers, two thousand books and many other Laws, so confused, so in­finitely extended, they were not to be shut up in the capaciousnesse of humane nature. Out of all these were the Pandects com­posed and digested, which are wel di­gested; but (as is said) the Code, and the Authenticks are not. How much more easily might the Common law be ranged into an exact method, may quickly be found, not being composed of any such bulk, not drawn out of any thousands of such answers, and books, inclosed in a dozen or two of small volumes, exceeded in the quantity by [Page 245]the present Imperial lawes, hundreds of times over, the foundations of it, as of all just and civil Lawes, are the lawes of God, of nature and reason, and of Nations: as Dr. Cowel, Our Statutes and Customes are derived (as all just laws else, and con­sentaneous to reason) from the Law of na­ture, and of Nations Inst. jur. Angl. 25.. And again, The lawes of England, as others over the Chri­stian world are far enough off from the civil Imperial law, yet are they tempered, seaso­ned with the equity of it Praef. ad Inst.. In his Epistle dedicatory before the Institutions, They are not far enough off; v. Chap. 2.50 here. (as very probably some of these Imperial lawes might come from Rome to the Saxons with their Religion) There he speaks thus: After I bad spent some yeeres in the compa­rison of these lawes, (viz. the Common and Imperial laws) I found the same founda­tions in them both, the same definitions and divisions of things, rules plainly consentane­ous, neer the same constitutiom: the difference onely being in the Ideome and method; Our Common law is nothing but a mixture of the Roman and Feudal laws; and in his Epistle to the Reader before his Inter­preter, he sayes, He has in some toward­nesse collated the cases of both laws &c. to shew that they both be raised of one founda­tion, [Page 246]and differ more in language and terms then in substance; and therefore were they reduced to one method (as they easily, saies he, might;) they might be attained (in a manner) with one paines. I make agree­ment no argument that lawes are the same, where they have (as tis said) the same foundation: but it may be an ar­gument, that where they agree in the foundation, where the constitutions are neere the same, where there are the same definitions and divisions of things, they may be digested into a method alike. Not to looke upon the twelve Tables, we may finde a plain resem­blance which I attribute to the founda­tion upon the Law of nature and Nati­ons, in these Lawes. The Cornelian de sicariis & veneficiis, of murder, poy­soning, firing houses: de falso, of for­gery; of all kinds of falsity: Majestatis, about taking arms, raising forces &c. the Cornelian de injuriis, and Aquileian de damno, of wrong, trespasse, damage, battery done; the Duilian, Maenian, de Coitionibus; the Julian de vi of publike and private force; Majestatis of high treason, to which the Lutatian of pub­like force may be added; in the digests and clswhere, are Laws of discents, [Page 247]rights and possession, covenants, and ob­ligations, against deceit in bargaines, theft, receivers, breaking of prison &c. of Code 11. nou. 3.5. Collet. Churchmen, and their possessions, &c. Besides saying it may be so, to make it plain, that persons and things, pro­priety of lands and goods, acquisition of these rights, injuries, and actions, publike and private offences, Writs, Courts, pleas, &c. may be listed in order in our Law, as wel as any other. This most learned Doctor in his Institutions has done it, but briefly and according to the fashion of the Imperial Institu­tions. Who (saith he) shall think him­self happy if he can provoke any man to undertake the larger Volumes; And Sir Henry Finch, in his excellent book called the Law. There is extant an Analysis of the Common law done by a reverend Atturney general heretofore, where our Law is so naturally methodised, and so happily, that not onely no law else, but no Science whatsoever can excell it for the order: though I know want of method in Lawes is no solid objection, nor so considerable as to need an an­swer. The illustrious Viscount in his Aphorismes of the Law is of this judge­ment, speaking of regeneration, and [Page 248]new structure of Lawes, he would have (he sayes) the words and text reteined, and things orderly done. Yet (he addes) in Laws neither stile nor description, but authority, and the Patron of it, antiquity, are to be regarded; otherwise (as he) such a work would seem rather something of the Schooles, and a method, then a body of com­manding Laws Aphoris. 62.. Neither the Philoso­phers of old, nor their admirers now, are to be heeded in these things; they may propose things specious, but they are every where remote, and farre off from use: the onely notion our ancient Lawgivers, and professors of the Laws intended. The most of the Law is Hi­storically related in Annals or yeer­books, where the judgements of the Courts in the severall Terms of the yeers are reported as faithfully as they were given, according to the true ac­count of time as things fell out, in which no method is requisite, or can be, more then in Histories, where all things of the same kind are not ranged toge­ther, but are set down as they were done. And every Commentator must follow his text, as he is lead. But those who have writ of one certain sub­ject, not miscellanists, have curiously [Page 249]enough observed this part. And where the Annals of the Law (which could not be otherwise, as is said) are thought to scatter things too carelesly. The cases in them are abridged and digested un­der proper heads and titles, By Statham, Justice Fitzberbert, and Sir Robert Brooke, as the Statutes are by Justice Rastall, &c. so that there can be no reason for these complaints. These objections onely shew a willingnesse to hurt, but are short of doing it. Principles of the lawes. Lawes are to be tried and examined by their principles, if there be any thing unsound there, and dishonest, too cruel and inhumane, they may justly be taxed. A Doctor of both the Lawes speaks thus of the Ca­non law: The Canon law is nothing but an beap of ingenious precepts of avarice, under the shew of piety; few things in it are directed to religion and worship, many are contrary and repugnant to them; the rest are wranglings, strife, businesse onely of pride, and gain, fancies of Popes, who have accumulated upon the Canons of the holy Fathers, decrees, chaff of the Extra­vagants, deelaratories, rules of the chancery, giving those at Rome power to absolve from obedience, break leagues, dispence with oathes, with the law of nature, enough (as [Page 250]he) to make of the house of prayer a den of thieves Ʋan. scient.. Here is something said; for the sanctions of the sacred Law of the land, may justly be said contrarily: they commands all those things which are most honest and most just, if there were no precept, while some other Lawes allow directly the same things, against God, nature, and reason, which ours forbid; as Incest among the Persians of the brother and sister was more then in­different, cōmunion of women praised by Plato Repub. 4. & amongst our families of love, lending wives amongst the Spartanes, Polygamie amongst the Mahumetanes and others; with the unnaturall love of boyes, which a Frenchman calls the or­dure of the Greeks, the bearded Philo­sophers approved it; Plutarch censures not Agesilaus for it. Adultery was com­mended by the example of their Gods; Thieving among the sober Spartanes, as Gellius cals them, and Aegyptians, and sleight of the hand, from the greenest youth was honourably allowed by the Lawes of Licurgus, not for base gaine, but for discipline of warre (as he) all their policy was directed to the wars. Piracy, and robbery have been glorious, no where heretofore amongst the Grecians [Page 251]in disgrace, saies Thucydides—This is manifest by some that dwell on the conti­nent (saies he) amongst whom so it be per­formed nobly, it is still esteemed as an orna­ment. The ancient Poets introduce men que­stioning such as sail by on all coasts alike, whe­ther they be thieves or no, as a thing neither scorned by those who were asked, nor upbrai­ded by those who would know much of Greece uses that old custom, as the Locriozolae, the Acarnanians, and those of the Continent in that quarter to this day Thucyd. l. 4 v. Justinum l. 44.. Private robbery the Romans suffered not, but publikely no men robbed more; so that (as one of their own) if they had restored what they unjustly took away from others, they must every man have returned to his Cotage again; revenging of wrongs and feudes are much esteemed by Ari­stotle and Cicero, exposing of infants, slaves, freed, or sick men was suffered in the Civil law; parents by a law of the Tables might sell their children thrice Sect. 18.. The Lord had power of life and death over his slave Insl. l. 1. gloss. servi­tus.. The Petronian law re­streins from forcing them to fight with beasts at their pleasure, not observed, more then the Edict of Nero which depu­ted Cōmissaries to hear the complaints of slaves. They put them to death for [Page 252]trifles; Vedius Pollio threw a slave to be devoured of Lampries (which he fed thus) for breaking a glasse Dio. l. 54.. If a Lord was murdered by one servant, it was the old custome, saies Tacitus, to con­demne and put to death all the slaves; according to which, in the case of Peda­nius secundus, Provost of the City, four hundred innocent men lost their lives 14 Ann.. Where law setled quietly, without any awe upon those who are to receive it, has too many of Draco's Rubrickes of blood it is terrible. Our lawes are not cruelly bloudy, they distinguish betwixt intentions, and actions; and actions, as they have their degrees of mischief, have their degrees of punishment. King Edgar wills in a law, That in offences clemency and forgiveness be used as much as justice, so that punishment may b [...] tolerable Ll. Nol. 1. Ll. Cnuti. 1 2. ve., a command not forgot, it has continued with the laws; Godlike mercy ever saving more then justice strikes. Wisdom and mercy, justice, and grace are joyned Beact. l. 2., as is ob­served in the beginning. No free man can by this law be disseised of his free hold but by lawful judgement &c. In those articles against the most wor­thy Earle Hubert de Burgo, he concludes It seems to him, That he ought not to an­swer [Page 253]without restitution, being disseised of what he had, since no disseised man is obli­ged to answer in any Gourt, &c. Additam. Par. 153. This is more visible by the law since. As the Lord Cooke, if a man be accused or in­dicted of Treason or Felony, his Lands cannot be granted to any, not so much as by promise, no seisure can be made be­fore attainder Inst. 36, 48 Mag. Char. c. xxii. Abjuration, challen­ges to the Jury, Clergy were no smal fa­vours of the Law. If a Felon de­mand his book, and can not read, and demand it again under the Gal­lows and read, he shall have the bene­fit of it 34. H. 6.49.. One Indicted of Felony pro­duces a Charter of pardon discordant to the Jnditement, and to his name, the Court perceiving the King meant to pardon him, remanded him to sue for a better pardon, 46. Ass. B. & F. Office del. Court. as if mercy were given in charge to the Justices, they ought of office to take notice of all generall par­dons, though the party plead them not, Dy. 28. and there, if all Felonies under twenty shillings be pardoned, the Judges ought to dismisse him to God (as the Booke) who is indited where the Theft is under that sum. The Justices heretofore know­ing the Felon to be a Clerke, who tooke himselfe not to his Clergy, would not give [Page 254]Judgement to hang him. 22. E. 3. If the Prison­er for Treason or Felony has any matter of Law to plead, he is to be allowed his Counsell, after the plea of not guilty, where it will not be allowed, the Court ought to be instead of Counsell for the Prisoner, to see that nothing be urged against him contrary to Law and Right. Nay, any learned man present may give information to the Court in behalfe of the Prisoner for his benefit. 3. Inst. c. 2. The Judges as in Humphrey Staffords case is observed, 1 H. 7.26, 3 Jus. 29. ought not to give their opinions be­fore hand (which is condemning a man before he be heard) the way to make in­differency impossible; whereas (as the Lord Cooke) untill the party has made his defence, things may be represented much to the disadvantage, and a small addition or substraction may alter the whole Case. In Common Pleas, where the Defendant has accepted the Writ or Title, where he has lost his advantage by his conclusion, or the issue be found a­gainst him, yet if it appear to the Court that the Plantiffe has no Title, no cause of Action, Judgement shall not be given against the defendant Plowd. 66 Dy. 13.76.119, 120.. Every restraint of a free man though not within the walls of a prison, is imprisonment 2. Just. 482. Rot. Pael. 2. H 4 nu. 60.. [Page 255]No man is to be arrested, or imprisoned against the form of the great Charter before recited 2. Just. 54.. No man is to be im­prisoned but for a certain cause to be shown ibid. 53., to be conteined in the Warrant &c. the conclusion of which ought to be, and him safely to keep, untill he be delive­red by law, &c. As the fift of king Hen­ry the fourth. None are to be imprisoned but in the Common Goale, to the end they may have their tryal at the next Goale deli­very, &c. As Justice Fitz Herbert, to keep a man in prison without coming to his an­swer is against Law Na. Br. 118. c.. The Abbot of S. Albanes would not make a Goale deli­very at the time, to save costs, he lost his Franchise by it 8. H. 4.18.. The Abbot of Crow­land forfeited his Franchise for deteining prisoners after acquittal, and their Fees paid 20. E. 4.6, such deteining after the Habeas Corpus is false imprisonment 2. Just. 53., there are many provisions for those who are grie­ved in these cases, by Indictment, Writs, and Action ibid. 55.. Though the law requires safe and streit custody, that must be with­out any torment, or pain to the prison­er, relief may be had against cruel and hard usage of a Goaler 3. Just. 35 91, 92.. The prison, as Bracton, is not for punishment but cu­stody. A certain Priest arrained in the [Page 256]time of King Edw. the second, put him­self upon the Country and stood at the bar in Irons, but by command of the Justices he was freed from them Fish. Corene 432.; and as to irons (saies the Lord Coke) there is no difference betwixt a Priest and a layman 3 Inst. ubi sup.. No felons comming to answer in judgement ought to be charged with irons. Brit. c. 5.14. c. 11.17 The law of the Land is a law of mercy, for three cau­ses (as the Lord Coke) 1. The inno­cent shall not be wasted by long imprison­ment, but speedily come to his trial. 2 Pri­soners for criminal causes brought to their trial ought to be humanely dealt with. 3. The Judge ought to exhort them to answer without fear, to assure them that justice shall be duly administred 2 Ins. 316. The Law has a most tender regard (as is said) of the life of man. By a Canon of our old English Church he that killed a man in publike war was enjoyned a penance of 40 daies Concil. sax. 383.. By the Common law killing by misadventure, or in a mans own de­fence, was murder founded upon the judicial law, before the Cities of refuge; the forfeiture of both was as in the case of murder before the Statutes of Mar­lebr. and Gloucest. the forfeiture of goods and chattels remaines yet. If he [Page 257]that kills by misadventure escapes, the Towne where the Fact was committed is to be amerced Fitzher. Corone 302 2. Iust. 148, 149.. So where the killing is se defendendo 2. Inst. 315.. Mens lives are so precious in the Law, that the death of a man cannot be justified, the Defendant in an appeale cannot justifie the death se defendendo, but must plead not guilty B. Appeal 122.. A verdict that A. killed B. se defendendo is not good, the special mat­ter must be set down, that the Court may adjudge the killing to be upon ine­vitable necessity Corone 302,. Maiming, wounding menace of life and member in defence of the possession of Lands or Goods, is not justifiable. An infant of nine yeers killed another infant and hid him &c. the opinion of the Justices was, that he should be hanged, but execution wat respited, &c. Corone 57 3. H. 7 d. 12 If a man be drown­ed by mischance in any pit not fenced, the Town is to be amerced Coroue 304.320. v. 339.402, 421., so where a man dyed suddenly of a Feaver and was buried without viewing by the Coro­nour ibid. 329., a Lunatick kills a man he must sue for his Charter of pardon ibid. 351.. And where the worst of men suffer those pu­nishments which Justice inflicts (which it were cruelty destructive to Govern­ment and Society to forbear) it is well [Page 258]said to punish the Homicide, and sacri­legious, is not effusion of blood, but ministery of the Lawes; I say, where justice doe strike, it is with an humane severity; the offender with us does not carry to the place of execution his own Crosse; he is not first whipped, then nailed naked to the unhappy tree (as it is called; we have no Italum Robur, Robur, or strong hold (as it is Englished) in a stinking prison, horrible for dark­nesse, where malefactors necks were broke, by tumbling them headlong from the stock of a tree there fastned in the earth. No rack or brake where the party innocent oftentimes was tormen­ted till he accused and condemned him­selfe, being hoised upon it, and fastned with ropes to it, his hands at the upper part, and feet at the nether part; his joynts were not onely racked, but the tormentors oft burnt and tore the flesh from his sides with hot plates, and Iron pincers. Those who would have intro­duced the Civil law in the time of King Hen. the 6. brought the rack into the Tower, 3 Just. c. 1. as a beginning to it. Here­upon, as is observed, the most reverend Sir Iohn Fortescue Chancellor, or rather chiefe Justice of England writ in com­mendations [Page 259]of our Lawes: where he maintains that all tortures are con­trary to them. There is no Law (saies the Lord Coke) to warrant them in this land. Although there were no ful proofs a­gainst some of those horrible miners in the Gunpowder treason, yet was it not thought fit, if the discovery could be made any other way, to take the ex­traordinary of the rack. Some other legalartes were used, (yet I cannot tell what could have been extraordinary, or illegall in the case of such Hellish par­ricides, who if they could superas eva­dere ad auras, and assume bodies, could not much exceed themselves.) Garnet and Hall betrayed themselves by their own conference, which was permitted to catch them. That conference is cal­led by the Earle of Salisbury, The finger of God, Thereby (so he tels Garnet) the Lords had some proofe of matter against him; which must have been discovered otherwise by violence and coertion; a matter (saies the Earle) ordinary in other Kingdoms, but forborn here &c. v Proceed against the Gun­powder Traytors. He addes, His Majesty (King James) and the Lords were wel contented to draw all from Garnet without racking or any such bitter torments. We have no dejectio è [Page 260]soxe, like that headlong throwing down from a rock in the Tarpeian mount. Nothing like the Gemonian staires, whether the malefactour was either dragged, Accor­ding to Tacitus, Aun. l 5. and cast into the Teuere, (It is said, there was not so much left of Sejanus untorne by the people, which the Hangman might fix his hook on, to draw into the River) or as others ha­led by the Executioners hook thrust into his throat, and having his thighs broken, burnt, clad in a coat dawbd on the inside with pitch and brimstone. We have no sawing asunder from the head downward; no condemning to a Fencing schoole, to beasts, mines, or mettals; no banishment, deportation, no most barren Gyaros to confine men to, not so much as relegation is known in our Lawes; No empaling, no wheele. No deflowring Virgins by the Hang­man, before they be put to Quia in auditum, saies Taci­tus, trium virali sup­plicio vir­ginem affici. it had bin far lesse to have broke the custome, then to [...]de this [...]k [...]o keep it. L. 5. Ann. death. Be­fore Villainage expired here, the villain might bind his Lord to the peace, he could not kill him, if he maimed him he might be indicted, fined and ransom­ed. By Magna Charta, which is affir­mance of the Common law, No free man is to be amerced, but according to the man­ner of his offence. Misericordia is the word [Page 261]used for amercement, there must be mercy in it; saving his countenance (sal­vo contenmento &c.) the Merchant saving his Merchandise, the villain his wain­age Chap. 14 Glanu. l. 9. c. 11.. No amercement is to be set here upon private men, but by affeerours, who are to affirm upon oath what pe­nalty the offender has deserved, as Bra­cton; to doe things fairly, neither car­ried away out of love nor hatred. The Writ of Moderata misericordia, of mo­derate amercement is grounded upon this Statute which it reciteth, and gives remedy to the party who is excessively amerced. If the Jury give excessive dam­ages against any man, Attaint lyes; u­sury is not to run against the heir with­in age Stat. Mert. c. 56, (among the Saxons it was un­lawfull,) hence, where rent is to be doubled for default of payment, it shall not be doubled during minority of the heir. Distresses are to be reaso­nable; and if there be any other chat­tels sufficient, sheep, and beasts of the plough are not to be touched. It would be infinite to goe on, I should, as we say, not onely want day; but a long life were too short to make a survey of all the parts to contract all the graces of this body, and pourtray them, so that [Page 262]they may be a little, and a far off seen. A strong vein of reason runnes every where in the Law but so sweetened with equity and clemency, it may well be thought made in a paternal government; given by a common father of a family to his children. By Judah, or Joseph to their Tribes, ruling but without a sting; Justice must (as is said) pare off unsound parts, such as else would corrupt and destroy the whole body, no govern­ment can subsist without it.

There is no greater equity then this, that we should be done to as we doe. But how unwillingly the Law descends to these last remedies may be seen, by the many favours before recited, allow­ed to the most heynous offendours, whom yet it does not pity, but the frailty of man in them. Onely is the innocent and honest man beloved, and safe (as he onely ought to be) in the law. He who shall transgresse the Lawes (which is not a single impiety, such one as much as lies in him frames a new Commonwealth to himselfe, and [Page 263]new lawes, as if he had power to free himselfe from those bonds, which na­ture and civil subjection have tied him in;) who casts off all obedience to peace and justice, who maliciously violates the sacred inhibitions of restraint, wickedly breakes through all those barres which no law can prevent (reli­gion and conscience must give the check) if he fall, or break his neck by the way, the Lawes are not to be com­plained of, the calamity of his ruin is meerly to be imputed to himselfe, though sometimes the punishment may be thought severe, it is never new, nor inhumane, never so great as the offence. One of our terrible judgements (so it is called) is the judgement in an indict­ment of conspiracy, the same which was in case of attaint against a Jury; by which the bodies of the offenders were to be imprisoned in the common Gaole. Their wives and children to be turned out of their houses, those with their lands to be seized into the Kings hands, to be wasted, and their trees extirpated, all their goods and chattels to be for­feited, the Conspirators for ever to lose the benefit of the Law; this was called villainous judgement. As the Lord Coke [Page 264]inflicted by the Common law; for that the offenders by salse conspiracy under the pretext of Law, by indictment of treason or felony, and legal proceeding thereupon sought to doe the greatest injustice by false conspi­racy, to shed his bloud, who afterwards is lawfully acquitted 3 Inst. 222. Subtilty which wrests a manifest text of the Law is condemned as unrighteous Hub. 125.. So is cun­ning and malicious interpretation of the Law there. He who wrests a text of the Law, though to maintain truth, does against distributive justice, saies the Lord Coke r. 10. praef. v. leg. non dubiū., One reason of the severity of this judge­ment, may be given in the words of the Statute of the banishment of the Spen­cers: The Law which was instituted for the maintenance of peace, and of good men, and the punishment of the evil is turned (by such courses) to the disheritance of the great men, and destruction of the people 15. E. 2. 3 [...]nst. 222. If the party acquitted (that we may see how many severall waies the law pro­vides for the innocent man) bring his action against the Conspirators (as he may) he shall recover answerable dama­ges, all practises to subvert justice, truth, and innocency are punished by the law; he that wil professe himselfe the advo­cate of wickednesse and injustice, and [Page 265]declaime against the Law for suppres­sing them, deserves to fall into the dan­ger of what he too unjustly loves. Per­jury of witnesses, and subornation were ever odious in the law. The mur­derer, perjured man, and adulterer in an old law goe together Ll. Cnuti. c. 6., perjury was punished by the realsfang or pillory; the punishment of perjury was too to quit the Countrey, after forfeiture of moveables Fleta l. 2. c. 1., then fine and ransome Brit. 38., Now forfeiture of a certain sum, and imprisonment 5 El. c. 9.. Bribery was ever abo­minable; the judgement against Sir William Thorpe, a bribing Judge was as in felony. In Fleta, the punishment of a corrupt Judge was to be excluded the Kings Councel for ever, to lose his lands, rents, goods, and their profits for a yeer, after to be punished by discretion &c. It came to fine and ransome. No great Officer, Justice, nor publike minister, by a Statute shall take any gift, or brocage of any person who hath to doe before him, 11 H. 4.under the penalty to forfeit the treble, lose his place, to satisfie the party &c. to offer a bribe was an offence punishable by the Common law. Extortion is another great misprision, punishable by fine and imprisonment Trin. 6. Car. reg. in Camara flell.. It would take up too [Page 266]much time to run over the names of all offences, and their punishments. But some are full of Sir Thomas Moores kind­nesse, and think it too much that a man should lose his life for crimes under murder, as for theft, &c. for which an­tiently losse of a hand or leg, or banish­ment were in use, V. Concil. Bergham­sted Concil. 197. Ll. Cnuti c. 61 Ll, Ina c. 3 [...]. AEthelst c. 1. yet the party taken in the manner hand habend might be killed amongst the Saxons, he could not buy his crime out; and the Spanish condemning to Gallies is thought by some the onely course, Mr. Daniel will have it, that as yet (writing of Henry the seconds time) they came not so far as blood, which is not so, King Henry the first abrogating the weregilde, by which a man might have bought out his offence made a law (sayes Haveden) ut siquis in furto vol latrocinio deprehensus fuisset suspenderetur—to hang the thief Hoved. Sav 47 1. in H. 1., with whom Wigornien sis and Rad. Niger agree after in the latter end of the reigne of king Henry the third, we finde a thiefe who had stoln 12 oxen beheaded Ma. Par. continat. 1005., Ca­pital punishments have not onely been in use against homicides, but other transgressours too, and amongst those who worshipped God rightly. We meet with no divine precept before Judah, [Page 267]which makes whoredome worthy of death, yet when he is told, Tamar thy daughter in law bath played the harlot, He answers, bring her forth, and let her be burnt. We may proceed, sayes Grotius, by conjecture of the divine Will, with the help of natural reason, from like to like, and that which is a law against ho­micides, may be extended to others as dangerously mischievous in b [...]l. 14.. I will not dispute it whether there be more mercy in death v eadm 94, cutting off legs, &c. or in the Gallies. I believe the boldnesse and number of such malefactors begot the law of death, and those whom death with so much infamy so often really be­fore their eyes cannot fright, will ne­ver think any torment whatsoever where life is left them (though with more misery then can be spoken) ter­rible.

But it is thought horrible and grievous that a mans life (which is invaluable in the law) should be taken away for a thing of nothing, for 12 pence. Which says the most learned Knight is the anti­ent law of the English. Nay for lesse (by the antient law of the English I may say so) King Aethelstanes lawes begin with thieves and speak thus. First that [Page 268]man spare no thiefe (so I render it accor­ding to the words) who in the manner, having in his hand taken is above twelve yeers old, &c above eight ponce c.r., either eight pence or twelve pence. The law is full of equity, this king gives a ram, &c. in the Preface (as the Saxon) worth four pence that which (as Sir Henry Spelman) sold heretofore for twelve pence would now be worth 20, or 40 s. in the Assise of bread (long after the Saxons) in the 51 of Hen. 3. eight bushels of wheat are valued but at twelve pence, and al­though now the 12 keepes not the old rate but the modern, yet things are pri­zed in trials of life far below their worth, and no man loses his life but where the thing stoln in estimate rises to more then many twelve pences. That title of Cosroes amongst his others, a king who hateth war may justly be gi­ven to our laws. Peace the greatest bles­sing of this life, and without which no­thing else can be a blessing, is everywhere provided for, everywhere charged, and commanded. Peace is commanded to be kept in the Pallace, or Hall of the king, (the forfeiture of the breach, being the losse of all the offendor has, and his life at discretion) in the church, the house, field, [Page 269]and town, the mulct of wrangling was made 30.8. Ll. Ina. c. 6. Ll. Alfr. c. 7. Ll Edv. sen c. 4. Ll. Etheldr. c. 6 Every man was to give pledges heretofore of his good behaviour, the violation of Faith so given was punish­ed, and is called breach of the peace. Every breach of the peace was such vi­olation. Everymans house as the law since expresses it, is to be his Castle. He who infringed the freedome, or liberty of the house called r [...]m soone by house breaking forfeited all he had, and his life was to be at the kings wil Ll. Edm. c. 6., Grith, or frithbrice were the terms for breach of the peace. King Cnut in his laws, first wills, that Gods peace and the peace of the Church be kept, then his own Ll. Cnuti c. 12.14., and a­gain —We must provide for peace or the amendment of it, most desired by dwellers, and most odious to thieves c. 8.. Amongst the Prerogatives of the West Saxon kings, are these, breach of peace, & house freedom c. 12.14.. The Statute called Westm the first speaks Let the peace of the Land be maintained in all points. The first of R. 2. Let the peace be well and surely kept, &c. according to the Law of the Land. In the title of the Sta­tutes of the 50 of Ed. 3. are these words. To the honour of God, and of holy Church, and quietnesse of the people. Which used to be the title of Parliaments [...] Inst. 9.. The [Page 270]Statute of Hen. the 7. concerning Justi­ces of peace has. That the subjecti may live in surety uner his peace in their bodies, and goods. Inprimis interest reipub. ut pax ob­servetaer, is a mixime of the Common Law affirmed by Parliament 2. Inst. 158.. In all Actions for any thing done against a Statute law, where the words vi & armis are left out, yet the Writ has contra pacem against the peace r. 9.50.. Every affraying as Mr. Lambard, or putting in fear is breach of the peace. The laws do not onely make orders for the maintenance of the peace, but as to the execution of the charge, have appointed general and par­ticular Officers, and Ministers to manage this part, and to undergo this care. The Lord Chancellour, Lord High Steward of England, Lord Marshal, &c. Justices of the kings Bench says Mr. Lambard, had authority inclosed in their Offices for the conservation of the peace all England over. The Justices of the Com­mon pleas are said to be conservators onely in special places. The Master of the Rolles was a general conservator by prescription, Coroners and Sheriffs are to be conservators within their Coun­ties, Justices of the peace instead of the ancient conservators antiquated, are e­specially [Page 271]warders of the peace, so are Tithing men, Borougheads, Constables, and petty Constables in their limits. As the first of Ed. 3. 1. E. 3. c. 15.4. E. 3. c. 2. In every County good men and lawful, that been no maintainers of evil, nor barretours in the Country shall be assigned to be Justices of the peace. As the 18 of that king. Two or three of the most substantial men, with other learned in the Law, as the 34. A Lord with three or feur of the most substantial, &c. By a Sta­tute of King Henry the 6. The Justice must have Lands, and Tenements to the va­lue of xx. l. by the yeer, he is to be sworn duly, and without favour to keep,13. R. 2. c. 7and put in execution all the Statutes, and Ordinances, touching his Office. As by the Iaws of all Nations civil, Religion, and the Priest­hood have their priviledges and honour so no laws ever favoured piety, and the Church more then these, and this fully and so often, that if it be made by any an objection of prejudice, it cannot be denied, it must be confessed by all hands. Those of the Roman new creed have in every age very clamorously and furi­ously slandered our Laws, not onely as short and imperfect, but as unjust, to be detested by all the faithfull Becket in Ma. Par. 101.; Such as without a saving the honour of God, and [Page 272]of holy Church Hoved. Savil. 492., are not to be sworn to, against the faith, as the Bishop of Ro­chester, may be thought to mean. Graft. 1187. The exemption of the Clergie taken away by the Laws of Clarendon (where yet only the old Laws were restored) was thought as legal an impiety, as heinous as could be; yet Bellarmine, though a man more nimble then ten thousand Beckets, durst not make it of Divine Right, Jure Divine valde con­forme, is as much as he thinks it is; Not of Divine Right, that were too high, not of Humane, that were as much too low, but very conformable to Divine Right, which is a ridiculous confor­formity, and makes it neither the one nor the other. Within five years, in the time of King Henry the 2. there were above one hundred murthers commit­ted in England by Priests, and men with­in Orders, so that it was time to take heed of these exemptions. By which the Clerks were to be for ever beyond the free years of Pompey dispensed with freed from the Laws. The most re­verend Chief Justice Fineux in the Case of convening Clerks (of which be­fore) asks the Archbishop of Canterbury (who would have such offenders deli­vered [Page 273]to the Ordinary) if this were grant­ed, what he would do with the parties so delivered, you have no authority, says he, by the Law to determine matters of Felony, to which no answer was given Kell. 7. H. 8.185.. The Saxon founders, and indowers of the most of our Churches, left never-dying Monuments of their Faith and good Works. The Laws of King Aethelbert the first Saxon King begin with the Church, and make provisions for that Ll Aethel­bertic. 1.. King Jua hath Laws, concerning the life of the Clergie, Baptism of Infants, hallowing the Sunday: The Churches sceat or part (very unjustly translated Church seed) Sanctuaries, striking in the Church Ll Ina. c. 1.2, 3, 4, 5. 6. v. ll. Al­fred. c. 2.5, 6, 21. ll. Ed. sen. c, 7.. King Aethelstane for Tythes, the teoꝧe tenth Ll. Ae­thelst. pro­em.. So have the Kinge Edmund and Edgar Ll. Edm. c. 2. Edg. c. 2.3.. The same Aethelstane concern­ing Church-Burglarie C. 5.. Edmund again concerning repair of Churches C. 5.. King Cnut for the peace of God and the Church Ll. Cnut. c. 2.3.. The Councel of Aenham a Lay Coun­cel, Commands that all men defend Gods servants, and honour them Ch. 30. ll. Cnut. c. 4.. As much respect was to be given the Priest as the Thane ibid. c 2.. The head of the Mass Thegne, and of the Wordly Thegne or less Thegne are valued alike Ll. Ae­thelst. Be ƿerum.. What priviledges the Church injoyed in its possessions may [Page 274]be seen by the pieces of Charters before recited, and the plea of Pinnedene. I will note one Law alone of the Saxons for the Churches liberty, which is this. &aenig man heonan foƿð cyrican ne þoƿige. Let no no man make the Church ser. vile, impose any servitude upon it Concil. Aenh. c. 9.. Let peace be binnaen ƿagum, within her walisIbid.. Magna Charta begins, We have granted to God, &c. That the English Church be free, and have all its Rights and Liberties whole, &c. of which the reverend Commentator says thus, Ec­clesiastical persons have more, and greater liberties then others, to set down all would take up a whole volume, &c Mag. Ch. 1 Com. 3. v. 2. R. 2. c. 6. R. 2. They have this priviledge, not to serve in person in War. To be quit of Tolles, and Cu­stoms, of Average, Pontage, Paviage, &c. for their Ecclesiastical goods, and if they be molested there is a Writ given for their discharge, by which it appear­eth says the same Commentator, This was the ancient Common Law of England. There is a protection with the clause Nolumus, where they feared their beasts, or goods, or those of their Farmers might be taken by the Kings Ministers. They are discharged of purveyance for their own proper goods. No distress can [Page 275]be made in the ancient indowments of the Church by any Officers whatsoever. Upon a Statute acknowledged by an Ecclesiastical person his body cannot be taken. If he had not paid upon a re­cognisance at the day. Nolevarifacias lay at the Common-Law, if the person had nothing but Ecclesiastical goods, &c. Where a Capias lies, and the Sheriff re­turns, that the party is a Clerk benefi­ced having no Lay Fee, no Capias should issue to take the body, but a Writ to the Bishop to cause him to come and appear; Otherwise had not the word Beneficed been in the Return. No Ecclesiastical person is bound to appear at Tourns or views of Frank pledge. The Church hath its place in the Parliament Writs: Though it be last named, it is the first (says the Lord Coke) in intention 4. Jnst. 9.. The Magna Charta (in the Title speaks thus) For the Honour of God, bealth of our soul, ex­altation of holy Church, and amendment of the Realm; The Title of the Statute of Confirmation of that, and the other Charter is, Know that we to the Honour of God, and of Holy Church, generally the Church leads 25. E. 1. 1. E. 3. 2. E. 3. 5. E. 3. 15. E. 3. 31. E. 3. 47. E. 3. 1. R. 2. 2. R. 2. 5. R. 2. 6. R. 2. 7. R. 2. 13. R. 2. 21. R. 2. 1. H. 4. 4. H. 4. 8. H. 6. 28. H. 6. 39. H. 6. 1. E. 4. 3. E. 4. 1. R. 3. 1 H. 7. 2. H. 7. 3. H. 7. 4. H. 7. 11. H. 7. 12. H. 7. 19 H. 7. 1. H 8. 3. H 8. 4. H. 8. 5. H. 8.6, 7, 12, 23, 24, 25., in Richard the thirds Parliament too. Weal, Common-weal, Weal-publick, and profit of the perple are [Page 276]ordinarily found in the Titles of the Statutes. If we consider the Justice, E­quity, Mercy, and goodness of the Laws (for the tree of Piety is known by this fruit) the only scope of them being eve­ry where to relieve the poor and oppres­sed, and to protect the innocent, the Religion and Devotion of our Fore­fathers will plainly be visible in them, as their civility and humanity are, whose memories we ought to honour, unless we will teach our Nephews how to ne­glect, and sleight our selves, and we can­not honour them more, then by the imi­tation of their plain honesty and con­stancy (it is rather Tyrannie over others then presumption, to yeild nothing to all men else, and to look that all men else should yield to us) this we ought to do. And although fortune may have too much power over virtue, though no­thing be got by it, yet after death and corruption of the parts mortal vertue perfumes the grave; it ennobles and by example sometimes refines the posteri­ty, leaves a taste of Immortality be­hinde it: the Great mans name cannot outlive his Marble, it moulders away or is plucked up with it: the Good man is his own Monument, he lives every [Page 277]where: who doth not need an Epitaph? Victory over our selves, over our own passions, private interests, pride, vain­glory, rashness, levity, is the most glo­rious, and most honest victory, such a Conquerour would undo Caesar, and such a true line. Here lies a Good man who loved his Country, and never broke the Laws, makes the Stone, or Brass more rich and precious then those Ae­gyptian Wonders which have survived their Founders, who is quite for­gotten and buried in them. What will much content some, no doubt by Magna Charta Mala tolneta, all evil Tolls, Customs, all Praestations and Impositions for Merchandise Imported and Exported are taken away c. 30.. By the Statute of the Confirmations of the Charters, the Magne Charta, and that of the Forrests, There is a Grant (so are the words) Not to take aids or Subsidies but by comman con­sent, and for the common profit c, 5, 6.. And a­gain there in the Chapter of the Male­tot. c. 7.. The ill Toll or Charge of 40 s. upon every sack of Wool is taken away, where are these words, We have granted for us and our Heirs not to take, &c. without common consent, and good will. By the Statute, called de Tallagio non conce­dendo, [Page 278]No Tollage, nor aid was to be set or levied but by common consent 34 E. 1.. All new Offices with new Fees are within this Statute 2 Inst. 533.. No man is to be charged by any benevolence, which is condemned by a Statute, as against the Law 1 R. 3.2.. He who judges things impartially must confesse the English ever to have been the most happy and most free of all people, while they enjoyed the benefit of these lawes, and are likely yet to continue [...]s happy under them for the time to come. But as some there are, as is noted, who will allow no au­thority but their own, not reason it selfe, nothing without themselves, so some there may be rather for a Sect, then the truth, more willingly following a great name then reason, chusing number rather then weight and worth, carryed away with authority as they call it, such as will yeeld to nothing else. If any such there be, I will please them, they shall have authority with truth, weight, and worth together. Not that I bring in other vouchers as if I refused those or thought them not sufficient, who as have shown before are the true and un­doubted Judges of the lawes. In the Councel at Oxford, of the English and [Page 279]Danes held in the sixt yeere of King Cnut. The English and Danes are said to agree about keeping the Laws of King Edward the first. Wherefore they were commanded by King Cnut to be tran­slated into the Latine Tongue; and for the equity of them (those are the words) to be kept as wel in Denmark, as in England Mat. West. flor. Hist. l. 1. 311. Wigorn. 311.. Although it is said, the English laws Gloss. ver Lex. Dan.. were silent, spake not, in the times of the Danes, which might generally be true; yet in the reigne of of this King, it was otherwise, as ap­peares by his excellent lawes of Win­chester full of piety and justice Concil. saex. 569.. These were the famous lawes observed by King Edw. the Confessour after, many of the laws of K. Aetheldred, many of those of the renowned Councel of Aeaham, under the same Aetheldred are amongst them. In the Epistle of King Cnut writ to the English when he was coming from Rome—He saies, He bad vowed to govern the Realms subject to him justly and piously, and judgement in all things to observe. At his returne, saies Malmesbury, he was as good as his word, For all the Laws by the ancient Kings, and especially by his an­cestour Aetheldred, given under penalties, be commanded to be observed for ever, which [Page 280]now men swear to keep under the name of King Edward; not that he ordained them, but because he observed them Malm [...]b. de Gest. Reg. l 2. c. 11. p. 75.. How much the ancient Englishman loved and pri­sed the Common lawes is evident by what has been before said concerning the Magna Charta, and the setling them. And it is more evident by the odious­nesse which subversion, and the subver­ters of the Lawes have lain under in all ages. There is a Writ in the Register (as before) to take the impugners of the Lawes, and bring them to Newgate Regist. 64.. In the com­plaint of the Bishops of Henry the thirds reigne, against the strangers Poictouins his favourites, are these words, As also because the Law of the land sworn and con­firmed, and by excommunication strength­ned, (this was the Magna Chaeta) toge­ther with justice they confound and pervert Ma. Pa. 396.. The Earle Marshall Richard com­plaines of these Poictouins to this King, as men who impooy themselves to the oppres­sion of the Lawes and liberties.ibid. 384.Stephane of Segrave, the chiefe Justice is charged in another place, with corrupting the laws, and introducing new ones ibid. 392.. The same King is told by those Bishops, That if the subjects bad been governed according to justice and right judgement of the land, [Page 281]&c. those troubles had not hapned. The Statute banishing the Spencers, the fa­ther and son, has this Article: To the destruction of the great men, and of the peo­ple, they put out the good, and fit ministers, and placed others in their room, false and wicked men of their Covin, who would not suffer right, or law to be had, — and They made such men Justices, who were not at all conversant in the law of the land, to hear and determine things. Empsons in­dictment runs—Nor having God before his eyes &c. falfely, deceitfully, and treaso­nously the Law of England subverting 4 Just. 199. The Articles against Cardinal Wolsey (before mentioned) begin, Hath by di­vers and sundry waies and fashions com­mitted high and notable and grievous offen­ces, misusing, altering, and subverting the order of the lawes. His articles are there by the introduction said to be but a few in comparison of all his enormities, ex­cesses, and transgressions against the Laws. These Articles were subscribed by the Dukes of Norfolk and Suffolk, the Mar­quesses of Dorset and Exceter; the Earls of Oxford, Northumberland & Shrewsbury; the Lords Fitzwalter, Rochford, Darcy, Moun­joye, and Sandys &c. all which, as those o­thers, taking subversion to be so heinous [Page 282]an offence, must needs be imagined to esteem the Lawes highly. Lewis of France, invited hither by the Barons in King John his time, in the entrance to his new principality is made to sweare to restore to every of them the good Lawes Ma. Pa. 282.. As others, to maintain ad keep the insti­tutions of the Countrey. Those who de­sired a stranger for their master, would not be governed by new and strange laws, amongst the covenants of marri­age betwixt Queen Mary of England and Philip the second of Spain, there is one to this effect: That he (the King Philip) should make no invasion of State against the laws and customes of the Realm, neither violate the Priviledges thereto be­longing Hollinsh. p. 1118.. And amongst those covenants of marriage treated betwixt Elizabeth of most happy memory, and Francis (Her­cules of Valois) Duke of Anjou; the same care and warinesse is had: one of the conditons is.—That the Duke shall change nothing in the laws, but shall con­serve all the customes of England Comd. Eliz. 338.. The Lord Treasurer Burleigh, the Earles of Lincoln, Sussex, Bedford, and Leicester; Sir Christopher Hatton, and Sir Francis Wal­singham were delegates for the Queen: men too wise to tie themselves and o­thers, [Page 283]to preserve those things which are neither worth a care nor being. The Statute 28 of Edw. the 3 An. Dom. 1363. speaks thus: The good, ancient Laws, customes and Fran­chises of the said Realm. The second of Richard the second 2 R. 2. c. 1Wills that the great Charter, and the good laws of the land be firmly holden. The 3^d. That the good laws and customes &c. be bolden 3 R. 2. c. 1 v. 5 R. 2. c. 1 7 R. 2. c. 2. 9 R. 2. c. 1.. The 4. of Hen. the 7. And over that his Highnesse shall not let &c. but that he shall see his laws to have plain and true execution, and his subjects to live in surety of their lands, bodies and goods, according to his said laws &c. 4 H. 7.12 c. 9. The 32. of King Hen. the 8. saies, The King calling to mind &c. that there is nothing within this Realm that conserveth loving subjects in more quietness rest, peace, and concord, then the due & just ministrati­on of his laws &c. The first Parliament of King James has—The fundamentall and ancient lawes (which this King, as there is said, expressed many waies how far he was from altering or innovating,) whereby &c: The peoples security of lands, livings, and priviledges, both in generall and par­ticular, are preserved and maintained; and by the abolishing or alteration of which it is impossible but that present confusion wil fall upon the whole State &c. 1 Jac. reg. c. 2. Twice in [Page 284]Petition of Right is this expression, and other the good Laws and Statutes; once the laws & custows, once franchise of the land. The conclusion is, all which they humbly pray, as their rights & liberties, according to the laws & Statutes 3 Car. Reg.. If publike authority, authority of Parliaments, authority of the English Nation in all ages, can make an authentike and valid testimony, by that authority we see, our Lawes are fa­cred, pious, good mercifull, and just; their ends aym meerly at the peace and happinesse of the Nation, the only ends which Lawes should aym at; and these being had, he must forfeit the Noble reason of man who desires a change, which whensoever it shall happen by the judgement of a Parliament, like the change of death must be fatal to the State. Though here is already the weight I promised, and such as all English men should allow, I wil adde a testimo­ny or two more of private men, not of the profession, yet no strangers in the Law, as the most knowing Sir Henry Spelman, Of all municipal lawes, our law plain and without dresse as she is, is the most noble Lady, replete with all justice, mode­ration, and prudence &c. As Sir Thomas Smith, the people here are accustomed to live [Page 285]in such sort, that the rich have no more ad­vantage then the poor. Dr. Cowel a most knowing Civilian, very judicious in our laws,—sayes of the two Benches, They decide all causes religiously according to the rescript of the Common law Justit. Angt. 24. sect. 2.: a most learned Knight of our age praises high­ly our forefathers for their vertue abroad, and their exquisitenesse of counsel and judgement at home, amongst whom as he (in Livies expression) The commands of the laws were ever more powerful then those of men, and Iustice was administred with that sineerenesse and judgement, you would believe it to have proceeded from Papinian himselfe, of all men who are, shall be, or have been the most skilled in the laws D. Rog. Twisden praefat. ad Ll. Guil. 1. & Hen. 1.. Our laws are not written in any general tongue, and so cannot easily be known by forreigners, but by the effects, long continuance here, or acquaintance, and seldome so, strangers every where for the most part desiring to take notice of every thing else, rather then of laws. The French man who wrote the estates of the world, discoursing of the charges pra­ctised in other provinces in his time, sayes, But the liberty of England is mar­veilous in this regard, no Country any where being lesse charged Les Esta. &c. p. sci­ [...]ur D. T. V. Y. v. Sir Rob. D a­lingt. sur­v [...]y of Tus­cany.. The Lord [Page 286]of Argenton as much experienced as any man in his age, or perhaps since, who had seen Venice and the order of things there, and praises it sufficiently, yet speaks in his plain manner of England. Now according to my judgement, amongst all the Seigneuries of the world, which I have had any knowledge of, where the Commonwealth is best managed, and where there is lesse violence used upon the people, it is England Liure 5..

It was otherwise of France in the days of his Master Lewis the 11. In many places so grievous were the Taxes, men, women and children were forced to draw the plough by their necks, and that by night for fear of the Collectors P. Mat. Lon. 11.. If we look upon the Peasants of France flead alive, the Villano, or Contadino of Italy, either under the Spaniard or Venetian. Where Fruit and Salades Sir Rob. Daling­tons Sur­vey of Tus­cany., nay, and Asses dung all things whatso­ever pay Tribute but mens sighs, where one word gabelle is of the largest extent, and more used then all the other in the Languages (& leave out the chains of the Turkish Gallies, and the most sad thral­dom of those Natives of America under the Spanish Conversion of the newest Fashion, Baptized but as Bede says of the [Page 287]Protomartyr Albane in their own blood) we shall finde nothing so mise­rable, so unhappy in Nature. Our Yeo­man, as Sir Tho: Smith, is a free Eng­lishman, a man well at ease, and having honestly to live. He savours, says a Reve­rend Church▪man of our Nation, of civility and good manners, living in far greater reputation then the Yeoman in Italy, France, Spain, Dr. Heyl. Geegr. or Germany (I may say for some of them more freely, more plentifully then the Gentry of either Spain or Italy) being able to entertain a stranger honestly, dyet him plentifully, and lodge him neatly. We may read the words of a Parliament to this purpose (after the discovery of the Powder-plot; No Nation of the earth hath been blessed with greater benefits then this now enjoy­eth 3. Jac., and whatsoever benefits we have received, we owe them all to the Laws, they are derived to us thence, we can at­tribute them to nothing else. Honour gi­ven to the Professors of the Laws As Justice is the most excellent of all vertues, seat­ed in the Will. as more sedate, and nearer to the reason, its object being the profit of others. So it is with good cause preferred before Fortitude (as Peace before War) which ought to be ruled by a certain Justice, and if all men [Page 288]were just there would be no need of Fortitude. The ancient Chief Justice, whatsoever may be talked of the Con­stable, or others, was the Great Officer of State, and as he had more power, so had he the precedency of all men else. Odo Earl of Kent, Chief Justice in the time of William the 1. is called Prince of the Palace by Ingulphus Hist. Sa­vil Edit. 907.. Sometimes the Chief Justice is called Warden of the Realm, Vice Lord of England, and Justice of England: as the Alderman of England was most Honourable in the Saxon times, So was the Justice after, (which was the same,) from the first time the word is heard of till Henry the third, if we except Hugh of Bocland, and Ranulphe of Glanville, we shall not finde one of these Justices but he was a Bishop, a Peere, or at least of the Nobi­lity, of one of the illustrious families. Aubreye of Ver Earle of Guisnes high Chamberlain of England, Justice, and (as some) Portgrave of London, father of Aubreye of Ver, the first Earl of Ox­ford (which familie so Mr. Cambden justly, is the most antient, (funda­tissima familia) amongst the English Earles) as Matt. Paris, was ready in the variety of causes, exercised in them In Sitph. reg.. And [Page 289]of Geofrey Fitzpeter. Then dyed Geofry Fitzpeter, Earle of Essex, and Justice, of great power, and authority, a generous man skilful in the lawes, allyed either by blood or friendship to all the great men or Barons of England Id. in Joh­rege.. Henry after king, son of Hen­ry the second, was chiefe Justice of En­gland. By the Statute of 31 of Hen. the 8. c. 10. which ranks the publique great Officers: The Lord Chancellour, or Lord Keeper is the first man. The great Chamberlain of England, Constable, Marshal, and Amiral are to sit below him; the Justices are accounted Peers, and fellows of Peers. Magna Charta sayes, No free man shall be amerced but by his Peers, and according to the manner of his offence. It is observed. As to the amerce­ment of an Earle, Baron, or Bishop, — for the Parity of those who should a­merce them when this Charter was made that the Justices and Barons of the Ex­chequer were sufficient. Bracton, as the most learned Mr. Selden cites him, sayes, Earles, or Barons are not to be amerced, but by their Peeres, and according to the man­ner of their offence (as the Statute is) and this by the Barons of the Exchequer, or be­fore the king 1. H. 6, 7 v. D. Spelm­ver he Baron Scaccer.. All Judges sayes (the same Mr Selden) were held antiently as Barons [Page 290]which appears in an old law of Henry the first, which is—Regis Judices sint, Barones Comitatus qui liberas in eis terras habent per quos debent causae singulorum alterna prosecutione tractari Villani vero Cotseti vel Ferdingi (Cocseti vel Perdingi in legibus nuper editis sed perperam) vel qui sunt viles & inopes personae non sunt inter Judices numerandi c. 29.. The Barons of Counties who had free lands in them, were to be Judges, not common base fellows—hence (as Mr. Selden) again are the Iudges of the Exchequer called Ba­rons. The black book of the Exchequer makes it manifest, the Judges of the Ex­chequer (before Hen. 3. or Edw. the 1. for thereabouts the Exchequer had its ordi­dinary and perpetual Barons) were of the Baronage by these words part. 1. c. 4. There sits the chief Iustice of our Lord the King, first after the King, &c. and the great men (or Barons of the Realm) most famili­arly assistants in the kings secrets. By the decree of king Iames 28. Mai. 10. Jac. reg.. The Chance­lour and under Treasurer of the Exche­quer, Chancelour of the Duchie, chiefe Justices, Master of the Rolles, chiefe Ba­ron of the Exchequer, all the other Judges, and Barons are to have preceden­cy of place before the younger sons of [Page 291]Viscounts and Barons, and before all Baronets, &c. there the degree of the Coif, is called an honourable order, the Serjeant is called by Writ— The words used to be, we have ordained you to the state and degree of a Serjeant at Law. Vos and Vo­bis in election of Serjeants, and sum­mons of Judges to Parliament (ever ap­plyed to persons of quality) are used. One Statute speaks where he taketh the same State upon him 8 H. 6. c. 10.. And another, At the Creation of the Serjeants of the Law 8 E. 4. [...], 2.. Which is observed ever to be applyed to dignity Rep. 10. Epist.. The Patrons of causes called (pleading advocates, and Narratores; Coun­ters of the Bench or Prolocutors of old, as Paris) Hist. 516. vit. Abb. 142. all Lawyers were antiently of the Clergie; And those now who are so curious for neatnesse of that order, may thank their predecessours for that rudenesse which is so unpardonable by them in the Latine of the Law. No Clerk but he was a Lawyer (saies Malmesbury in Lib. 4. Ed. 1. Savil. 123. William the second) we read that Mr. Ambrose the Clerke of Abbot Robert of St. Albanes most skilful in the law, an Italian by Nation, amongst the first of the lawyers of England for time, knowledge, and manners is sent to Rome; Vitae Abb. St. Alb. 74. Adam of Linley, is said to be Abbot John the 1. [Page 292]his Counsellor in all his weighty affaires, a curteous man, honest, and skilful in the lawes Ibid., after Archdeacon of Ely, (for most of them held Church-li­vings;) he was after speciall Counsellour and Clerk, saies this this Monke) to the Archbishop of Canterbury, Stephane. John Mansel of whom we read so much in the History of Hen. the 3. is called the Kings speciall Councellour and Clerk, as much as Atturney generall since Ibid. 142. Hence it is that the ancient habit of se­cular Judges was the same; and yet is with that of the Ecclesiasticks D. Wats. Gloss. ad Paris.. Wil­liam of Bussey Seneschal, and chiefe Counsellor of William of Valentia would have losed (saies the same Monk) the staies of his Coife, to shew his Clerkly tonsure, his shaven crown 984, 985 Hist.. And again he sayes, The Clerks who such Writs di­ctate, write, signe, and give counsell 206. A [...]it.. They are restrained by Pope Innocent the 4. his Decretales, who forbid any such to be assumed to Church dignities, &c. un­lesse he be learned in other liberall Sci­ences. Philosophy and Divinity were laid by (as the words there) the multitude of clerks ran to the hearing of secular laws ibid. 190.101.. Hugh of Pa [...]shul clerk is made justice of England by Hen. the 3 Hist. 405. So was the [Page 293]famous John Mansel (before) Keeper of the great Seale. There have been se­ven Wardens of the Kingdome, or Vice­royes of the Clergy, twelve great chiefe Justices, neere 160 times have Clergy men been Chancellours, about 80. of them Treasurers of England: all the Keepers of the privy Scale of old, the Masters of the Rolls, till the 26. of King Hen. the 8. the Justices of Eire, of Assise, till Edw. the third, were of that order D. Spel. Epist ad conc [...]l.; men whom the Lawes were beholding to 1 Inst. [...]ect 524. rep. 5. C [...]wd. 2. Just. 265.. else they had been told of it. Many great Families have been advanced by the Law; many of the best and noblest thought it no disparagement to professe it. Some of our illustrious names may be met with amongst the Serjeants and Apprentices of our yeere books as well as in the Heralds books. If like Boc­cace his Ghost all those who laid the foundations of their houses, who first broke through the miste of time, where­in they and their ancestors were hid be­fore, who first shewed their names to the world, were to appeare before us in the habit of their sprouting up, with all their sordid cheats, with all the crafts & several close arts of thrive­ing used by some, displayed, and reveal­ed, [Page 299]all the false sleights of the Town and Country laid open, where every peny is got oftentimes too too dishonestly, by the unworthiest sins a man can commit, how would the gawdy off-spring curse his own rise, the branch be ashamed of its own root, vertue alone is honoura­ble, mony can neither make men wise, valiant, nor good. Arts, and Armes onely and really innoble, that of all o­thers most deservedly whose object is meerly the good of mankind, which imployes men continually for the pub­lique, for the preservation of the people pacique imponere morem. The souldier as Cicero, may once profit his Country, the Lawyer always. Our most Reverend Judges and professors of the Laws have in all ages Ancient­ly part of the Persi­an kings title The ophyl. risen with the Sun, and gi­ven eyes to the blinde night. But I have offered my selfe too far to ingrate­ful dangers. Here I will stop, and give over. Not that much is not left out which might have been said of the sa­cred Law of the Land, and the admini­stration of Justice here. Much is left out and I wish some more happy and more able would undertake the whole. It is enough which again I may protest, that I speak not in the midst of Fetters, and [Page 297]that I have defended (and the defence could not but be easie) truth onely for its own sake, yet I believe he who knows most, who commands most in language, and Sciences, who pretends justly a ti­tle to the kingdome of the barre or schooles, with all his mouths, and tongues if he had more then one hun­dred, could not do full right, would be short and wanting here. Not in our right hands (as is said of those souldi­ers in Curtius) but in our Laws, our helpe, our hope, and liberty lie. We need not aske for propriety, not for peace, not for order, concord, security, not for wealth, nor honours, one wish comprehends them all, carries all these with it, the safety of the laws, is all these propria haec sidona — We have seen at large what excellent blessings we have received from the Law, these blessings may be everlasting if that be made so, I know nothing it ought to yield to (and our Parliaments have thought so) but eternity; and the change by that.