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 Early English books online. (EEBO-TCP ; phase 2, no. A96344) Transcribed from: (Early English Books Online ; image set 169781) Images scanned from microfilm: (Thomason Tracts ; 176:E1330[2]) For the sacred lavv of the land. By Francis Whyte. White, Francis, d. 1657. [12], 299 [i.e. 293], [7] p. printed for W. Lee, D. Pakeman, and G. Bedell, and are to be sold at their shops in Fleetstreet, London : 1652. Signatures: A⁶ B-T V⁶. Text is continuous despite pagination. Running title reads: For the sacred laws of the land. Reproduction of the original in the British Library. eng Law -- Great Britain -- History -- Early works to 1800. eebo For the sacred lavv of the land. By Francis Whyte.. [no entry] 1652 313 78154 285 0 0 0 0 0 36.47 D The rate of 36.47 defects per 10,000 words puts this text in the D category of texts with between 35 and 100 defects per 10,000 words. 2012-03 Assigned for keying and markup 2012-03 Keyed and coded from ProQuest page images 2012-09 Sampled and proofread 2012-09 Text and markup reviewed and edited 2013-02 Batch review (QC) and XML conversion

FOR THE Sacred Law OF THE LAND .

By Francis Whyte .

〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 .

LONDON , Printed for W. Lee , D. Pakeman , and G. Bedell , and are to be sold at their shops in Fleetstreet . 1652.

To the Reader .

I Have spoke a little in some of the leafes beneath , of the fulnesse of cur Saxon English Tongue , of its goodnesse and worth ; I will shew here , ( that I may not seem to talk only ) how easily we may utter our thoughts and wills , the drift of our minds , without borrowing of our neighbours , and without going about , nay , and often without waking the sleepie grave , and breathing life again into words hundreds of yeers agone dead and forgotten . We need not delue for buried gold , nor look back for words frightfully old ( as they may goe at the first sight ) such as would be dreadfull in their rising : Were we but ready in the speeches of the sundry Shires , Towns , Boroughs , and Thorps of our Land , of the West and North , ( from whose broad mouthes ( as they are thought ) we may gather enough , though what we gather thus is wronged in them every day more then other ; ) if all these were brought into one heap , and rightly laid together , we should finde our selves rich within our selves , without taking up on trust . The most learned of the wise men heretofore , Aristot . de gener . animal . l. 4. tels us , that he that is not like those who begot him , like one or other of his house before him , is to be wondered at as a thing against the kind . There are those froward ones now , who , as if the blood of their Forefathers were more foule then the sin of our birth , and its guilt , hate nothing more then them ; not their outside onely , but their goodnesse ( which never any breasts were fuller off ) is loathed by them , as are loathed , not onely their speech , understanding , and lives , but their lawes and beliefe ; sleighting all things before themselves , as if nothing were well laid hitherto , but we were to begin the world from the bottome , upon another groundworke : like some sonnes of another adders teeth , or of our mother earth , lately sprung up , sons of the warmer Sunne , and slime , risen but yesterday . As to the Laws of our Saxon English , that I may deale within my own reach onely , ( For from those as from springs of wholsome waters , the streames of our later Laws spread ; ) Whoso will read them ore with a stedfast eye , will not meet the work or hands of highlanders , but all things as far otherwise , as Heaven and Hell are asunder . When he shall looke on the strength and height of the walls , the smoothnesse of the walks , the goodnesse of the whole building , he must see God has been there , or men of heavenly off-spring , the sonnes of God . A worshipfull Bishop amongst our greatest for all kinds of knowledge , but no friend to the Halle , bewailes us in this - That of the comming in of the Saxons hither , of their first workmanship , of the setting up and frame of their Kingdoms , the wisdom which upheld them , of their deeds of the field , and their home Laws , worthy to be everlastingly kept in mind , to outlive the day , so little is now in being to be found . It cannot be withsaid , that through the retchlesnesse of men ( to say no worse ) in the great earthquake of King Henry the eighth , stones did not fall alone , many of our English Writers were overwhelmed in the breaches , hid in their dust , and the mists and darknesse must be the thicker after . This is true , and we cannot be enough sorry for it ; yet besides the hoords of books now left , those which have not seen the light , ( and likely never shall ) and which have , and are in every mans hands , can teach us , not sparingly , no small deale of that which is bewailed as lost forever . And if there were lesse ( which I hope shall not be ) the skill of a cunning hand may be seen by the shortest stroke . But blesse me , I am got abroad in open sight , and must make a stand ; The Readers leave ( this cannot be helped ) must be asked to goe on . I am told this is looked for from men unknown and untrusted ( how ever from such as come out alone , such as want their throngs of wits , making room before them , and bespeaking heartily the meinies smiles , who must be taught how to like , and whom . ) I aske my leave then : but come on t what can , I will not buy it too dearly ; I will not sell my freedom for it ; I wish the good will of all men , and that this child of mine might have a faire welcome into the World ; but I will not throw my selfe at any mans feet , nor licke up his spittle for the kindnesse . He whose end is nothing else but the good of others , should not feare himselfe , he ought to stand upright above this lownesse , as indeed he is ; yet am I not so idle to thinke my selfe some merry Knight of the Booke , and that my over loving Witch by her mighty spels has kept these fields for my wonders , that this inthralled Queen cannot be freed but by my arme , and that I was born for the hit . If some great undertaker , such as the World would freely and willingly follow , had fallen on here , ( which every Englishman is bound to , how learned soever ) I had not stirred , I had stood still somewhat more in the shade . Now all that I shall get by this light , will be the loosing of other mens tongues upon me , if I come off with a few short blowes of dulnesse , heavinesse , or weaknesse , I am well ; the best of men , such as the wildest Heathens would stick amongst the Stars , are stung by some ; what is the most unmanly unthankfulnesse , the hallowed ashes of the dead are cursed and torne up , of the dead who living held the Heavens up with their shoulders , made the Sunne shine , and the clouds raine : so farre is this bitternesse from being ill thought of ; backbiting is the token of a good man : he that would not be ill spoken of , must fly from men . He alone who hides himself , never shoued up and down in the streets , is wise . But we live not onely for our selves , something we owe to mankind , more to our own blood , to our mother England . And as many other men easily outgoe me , so there may be those who may make but slowly up , who may be left behind ; in so many houses of flesh there may be undersoules to mine . It is not any overweening which has thrust me thus farre : The undertaking fairly to heal the unbeliefe of some weak ones ( for I am not so brainlesse to think that those who side , and hate for their own sakes will be shaken with words , that such a stubbornnesse can be ore come ) who without any ill within , any unsoundnesse of their own are led blindfolded by others , whom they ( it may be ) have trusted too unwisely , who would drive on to the utmost that hatred ) is not heady boldnesse to be chidden by any . I would shew these forlorne ones , how sadly they lose themselves , how good and even the old rode is , how dark and uneven their own by-paths ; how in the first they may finde the holy footsteps of their forefathers , and the wary steadinesse of their treading : in the last nothing but winding and giddinesse , nothing but everlasting wearynesse ; where , as is said of the old Ghosts below , they shall wander for ever , more flitting then smoke , and sparks of fire , which however hindred by the winds , striking them down , climbe upward on wings unseen , and at last are swallowed up , and taken in to their own home . If these be as willing to heare others , as they are empty themselves , he who sayes least may win them ; and so be , that they will bow at all , they may meet with stronger leaders , of the highest worthinesse , such as it will be no shame to them were they more , and better then they are , to yeeld to , if yeelding it selfe be not a shame ) ( where we run heedlesly upon things forbidden , which we should shun , where we scorn to own , and as it behoves us forsake our oversights ) which now with too many it is . If nothing else will take here , this may ; I bring a mind free from love or hatred , I am sworn to no mans words , I am bound to no man ; I may say it , and believed ; there is not the least tie upon me which might sway me fowly from the truth , if I stood not so fast as I should doe . So then , as I am not worth the sin ( nor any man else ) I am not bought , I have no wicked , no unrighteous score to be wiped out ; Nothing but dearest truth has drawn me forth , and that without the trimming or gilding of any mans hand or wit , has its kindly lovelinesse ; like Heaven above , it shines bright from its own beames .

Faults of the print .

LIteral faults in words where there may be a mistake of one letter for another , a letter out of rank , too much , or too little , I leave to the mercy of the reader ; where a word is left out , or too much , or changed , and disorders the sense , there I restore the place . Of the first kind , are p. 72. Cafariae for Caefaria , p. 118. Souldierie for Soldur●● . p. 120. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , p. 126 Rdnerret for Banneret p. 85. srotera for sno tera . p. 87. & 137 the Saxon ƿ in words should be r p. 146. has gae & ul for gaful . geþtnege for gepitenege . p. 217. Aerenrdac for Aerendrac . gegmired for gesmired p. 147. Caute for Cunte . p. 133. l. 15. has Inland for Jnland . p. 187. ARIS for AERIS , DVCTIO for DVCITO p. 219. Comicas varco for Comic ( as Varro . ) p. 220. si is left out , p. 269 , has Bribeing for Bribed &c. of the second kind , p. 17. l. 7. blot out or , p. 79 , l. 12. for which read what . p. 87. l. 1. after p●acr ( adde ) has . p. 99. l. 6. after Aelfred ( adde ) this . l. 10. for our read one , 114 l. 20 , blot out unto 128. l. 23. wherein l. 15.17 . for it read them . p. 134. after Charter ( adde ) to . 171. l. 9. Tenth read True . l. 12. read we will . p. 178. l 1. place and ( after ) uncle . 181. after Conflicts ( adde ) are there 187. l. 9. Many read May. 194. l. ult blot out not onely . 260. l. 27. after is ( adde ) in . 191. after Rome ( adde ) which was . 176. l. 17. for a , read as a. 146. in the Margin to Saxon is ( adde ) Mancus . 131. in the marg. to Cheding ( adde ) Ley. 117. with cast read with a cast , p. 110. l. 3. blot out cast away .

The Preface .

I Take not upon me to censure this age by the wisdom and constancy of those which have gone before , perhaps when we have attained to the perfection of things , it is not easie to make a stay , naturally where we cannot proceed , we must go back ; there may be an unhappy weaknesse of men not to love long , be the object never so excellent , a weaknesse born with us , and which Nature onely is to be blamed for . I should think so , if the Nation were a weary of their old Laws and this were a disaffection of the whole body . We know the five thousand of Athens , those who would be called so , go for so many , were but four hundred . The full enemies here , whose hatred to the Laws is as antient as their name , and being , are the dregs of the basest of the people , neither considerable for number , nor worth : No more the body of the Nation , then the smallest rotten part is the whole ; made up chiefly of Anabaptism or Levelling , referring all things to themselves , willing to embroil every where , of restlesse spirits , and not likely to be satisfied with any form of Government , nor with any Laws , it being Order , and Law , of what kinde soever they strike at and undermine , Breakers of all Lawes , and enemies of the league of mankinde , whose fanatick giddiness is such ,

Homine imperito nunquam quidquam injustius .

Qui nisi quod ipse facit nihil rectum putat .

they will like nothing they do not set up , and will ruine every thing they do not like , with whom Lex una legem nolle , whose principle of Anabaptism it is , That there shall be no principle ; who would live as they list a a Vid. Sleid l. 10. But should these mens discontents prevail , what would become of the next age , there being the same dominion of inconstancy still , the same irresolution must pursue the posterity . If we be more just , and righteous then our forefathers it will appear by our actions , but if they be irregular , we must be bounded by rules . Yet to these wicked heads who abhor all Law , b b Sleid. ubi sup . condemn Magistracy , deny propriety , and are pleased with nothing but that communion which beasts enjoy in their wildness . It is as great an absurdity as any of theirs to talk of Law , unlesse it be first made plain , That there is any dominion , or propriety which may make that Law of use . For if according to these Brethren ( whose dreams are Oracles ) there be none , then are we alwayes in the state of war , ( unles all men will be contented to gather crums under a King John of Leyden's table ) and the strongest arm carries all . For the Leveller a neer kinsman , either we know not yet ( which is the most likly ) his ful meaning , Or he is not got past the old Agrarian Gauel-kind , so often contended for , almost to the destruction of the then but budding Rome , by the Tribunes there . Where it was the great reward of seditions , that all distinction being taken away , no man might know himselfe nor his . ( So Livie in that speech made for the Consuls M. Genutius , and P. Curtius , Lib. 4. against Canuleius the Tribune and his Lawes . ) However , our Leveller is too unreasonable to fancy such equality of Lands , and Honours , it being against the Law of Nature , which made some , more wise and ingenuous , more resolute and adventurous , others , blockish , dull , and stupid ; some ( as if of purpose ) fit to command , others to obey . It is highly injust too , that the frugal painful man should gain nothing by his honest industry , nor the riotous disordered sot , lose by his debosh dissolutenes . c c Republ. 939. Il n'y eut jamais de Republique ou ceste equalité de biens , et d'honeurs fust gardee , saies the French Bodin . This equality could no where be kept : with it there can be neither Magistrate nor Lawes . As to the pretended fantastical communion of these Arreptitious ones , so much admired by Poets , lactantius will not allow it in the first ages . He puts this construction upon those Poets who are so much for it . Not that we imagine nothing then ( saith he ) to have been private , but after the manner of Poets figured , that we may understand men then to have been so free , not to inclose their fruits , that alone they might sit over things hidden , but admit the poor to the communion of their own labour d d De jnstit . c. 5. . Which the famous golden age should be , when the earth and all things else for the use of man , were as common as the light of the Sun , Ceu Lumina solis & aurae , I cannot finde . Adam as is observed , was the universal Lord of things by donation from God , & not without a private dominion , e e Gen. 1.28 . or propriety excluding his children without his Cession or assignment , by which they had their Territories distinct in his life time in their own right f f D. Seld. Ma. claus. 13. . ( which proves this home ) Abel who is a feeder of sheep , had his Cattel and Pastures ; Hence is Cain called a tiller of the ground , & had his Corn and Corn-fields . His place Nod , where he built his City Enoch , and seated himself . That the earth was divided soon after the flood appears by these Texts . The name of the one was Peleg , for in his dayes was the earth divided . These are the sons of Shem after their fathers , after their tongues , in their lands , after their nations . Again , These are the families of the sons of Noah , after their generations , in their Nations , and by these were the Nations divided in the earth after the flood g g Gen 10.25.31 , 32. . C ham had the south , Sem the east , as Josephus , Eusebius , The Chronicle of Alexandria , &c.

Grotius speaks thus ; Things came into propriety , not by the onely act of the minde ( for how could some know what others would have to be theirs , and abstain from it , and many might desire the same thing ) but by a certain pacte expressed , as by division or tacite , as by occupation , for as soon as communion displeased , nor was any division instituted , it ought to be thought that all agreed , that what any one occupied he should have it for his owne h h De jure Belli . &c. l. 2. c. 2. sec. 2. . Now though humane will is made to bring in the dominion , or propriety now in use , which may fall short of the full title , yet hee addes , That introduced , it is unlawfull for me to take that from thee against thy will which thou hast a propriety in . Naturall law it selfe shewes , that long or continuall occupation or possession , and lawfull taking the profits is sufficient title . i i D. Seld. ma. claus. 1. That tricke of the Spaniards to colour their invasions in America , that the people there abused what they had , and might be justly forced to quit it to those who could use things better , was condemned more justly , though not as theirs : k k Concil. Trid. 402. more for the first occupant , the ancient owner , having perhaps not onely improved what he found not possessed by any other , but by his labour made it delightfully habitable for man : what reason is there , a stranger of another clime , who has consumed what hee had there , should claime a share in the possession ; nay what adventurer , who shall at his owne charges bring others with him , ( as in the first rudeness of the world , And since , when the first homes were too much crowded , the descendents of the Patriarkes and others , as Captaines of Colonies , fought out new places for themselves , and those who ran their fortune : ) I say , what such adventurer has not good right to plant himselfe upon the best soile of his new discoveries , and assigne his followers their proportions , which no second commer ought to beat them out of ? Every man we know in the first ages made wells his owne by occupation . l l Gen. 21 It is plain this propriety was amongst the Jewes , and allowed by them ; besides that command from God , Thou shalt not steale . Abraham their father tels the King of Sodome , I have lifted up my hand to the Lord , &c. from a thread to a shooe latchet , that I will not take any thing that is thine m m Gen. 14. . God by a Covenant gives Canaan to his seed n n Gen. c. 15. . The same Abraham purchases the Cave of Machpelab , he gives all he has to Isaac o o Gen. 23.25 . Jacob , buyes a parcell of a field where he had spred his tent , at the hand of the children of Hamor , Sichems father , for one hundred pieces of money or Lambes o o Cap. 33. . Moses and Joshua divided the Holy land amongst the Israelites ; It is said , And Moses gave inheritance unto the halfe Tribe of Manasseth , and these are the Countries which Moses did distribute for inheritance p p Iosh. 13. : But this distribution made not the Tribes inter-commoners , the Families had their distinct inheritances ; Hebron ( as the Holy Booke ) became the inheritance of Caleb , &c. to this day q q Iosh. 14. . This was the lot of the tribe of the children of Judah by their families r r Cap. 15. . Ruth gleanes in the fields of Boaz. Naboth had his vineyard , the Shunamite is restored to her field again by King Jehoram . The nations were for propriety , Abimelech the King of Gerar is reproved by Abraham in these words . Because of a well of water which his servants had violently taken away ; He answers , I heard not of it , but to day ; s s Gen 21. Joseph ( as we read ) bought all the land of Egypt for Pharach , onely the land of the Priests bought he not t t Cap , 47. . Nor did our Saviour , who was no judge ( as himselfe speakes ) of inheritances , take away the law of propriety , more then any civill law else ; but the law of Moses only , and that partition wall which separated the Jews from other Nations . u u Eph. 2. That after , of the possessors of lands who sold them , and laid the prices at the Apostles feet ; and of Ananias , who seld , &c. can make nothing against this , being a voluntary act , an huge triall of a rich converts piety , still as Saint Peter to Ananias ; Whiles it remained , was it not thine owne , and after it was sold , was it not in thine owne power . This is more plain by our Saviour in three of the Evangelists , where he tries the faith of a rich man , sell all ( saies he ) which is liked well enough by them ; But then followes , And give to the poore , which will not please much . These meek ones are meerly for taking away , neither hath this Communion been faithfully observed by themselves . The successor of the great Prophet at Munster ( their stie , or kennell , ) not only claiming the throne of his father David ( as they speak ) but the Empire of the whole Earth . So only power , and riches in others are abominable and unlawfull ; Sleid. l. x. And in the siege of that place their mock-King had his private store-houses , for himselfe , his phrenetic apron Peeres and whores , whom hee feasted daily , while the racaille , the rascallity of the herd drop down on heaps starved in the streets . But although we cannot imagine Adam the most wise , and most excellent of men , and the Patriarches of the new world , ( who out-lived the ages of Kingdomes , and Common-wealths , who had lives as long as the arts are said to be ) so rude , to live on prey and the snatch , with as little honesty , and civility as wee finde amongst the Alarbes , or those of Florida , whose character is , that they are barbarous sordid and inhumane ; although I say wee cannot imagine this , and it is demonstrated that there was dominion and propriety in the Golden Age , as men love to call the first time ; yet there was no such great need then as since to make division either of cattell or pasture , ( for gold and silver were then of no use , and in Mexico and the West , served onely of late for armes and common utensils ) the number of men being small , and not divided perhaps so much as into large families , when dens and woods are fancied houses , and coverts , and skins of beasts clothes ; when ( to omit fancies ) men were more civilly bred , and knew more from the instructions of the Patriarkes then ( as it is likely ) any since , whom they obeyed , and reverenced willingly , more out of piety then fear , as in a paternall government , where the Father as chiefe of the house , was the Prince and Priest of the Family , and every wrong was done to a brother , an unkle or a kinseman . But when men began to spread into Families , Tribes , and Nations , not contented with the homelinesse and simplicity of their Fathers , nor with things freely growing , and at hand , every man imployed himselfe to get those things which he conceived necessary , either for his subsistance or pleasure , which no man would have done , if like Virgils Bees , or Oxen , he had not toyled to his own benefit . This made Noah plant his Vineyard , and others busie themselves to finde out all those arts , which might either make the earth fruitfull , or delight and profit themselves ; so that ( as we finde it in all Histories ) there was a necessity for propriety then . And as with great reason , and I may say of divine right , propriety came in , without great wrong , and universall confusion it cannot be taken away : the least concession , the least slackning of this law of propriety must be fatall ; a huge licence and deluge of injuries would follow , when our experience makes it manifest , that lawes in force , and all the Courts of Judicature cannot reftrein the injustice of wicked men , from griping the just and lawfull inheritance of others : kill , and possesse , would bee familiar . Our owne advantage would be the measure of right , we should return to , or rather set up that state which is called meerely naturall , in which it is said every man might do what he listed , and against any man , in which every man might possesse and injoy what hee would and could wrest and force from another . Those who removed the Terminall stones , or boundary markes were punishable by the Civill Law ; w w Modest . l. 2. de term . ● moto . which certainly as many others in the twelve tables might be taken out of the Jewish Lawes given by God ; By whom Cursed is he that removeth the marke of his Neighbours land : a plain grant of propriety , if any thing can be plain at all . As is observed : This hath been generally received amongst all Nations , if we except some few , such as the Canibals of Guadalupea , who yet devoure not one the other ; x x Pet. Mer. Dec. or such savages living ever upon spoyle and inhumane robbery , whom no civill eye will take to be reasonable , nor manly , not by the outside . Cicero in the case of hunger would not take bread from another who deserved it not ; my life , saies hee , is not more worthy then such affection of minde , not to hurt or wrong any man for my owne sake y y Offic. 111. . Zenophon tels those of Sinope , that either amongst the Greekes or Barbarians , where the market was denied him , his manner was to take what he wanted by force , yet out of necessity z z Cir. min. exped. 463. . Armatus leges ut cogitem , this was the Philosophy of the field . That of Curtius has more justice in it ; Melior est causa suum non tradentis , quam poscentis alienum . His cause is better who yeilds not up his owne , then his who demandeth that which is another mans . If this violence were common law , and allowed , one hour of our greatest peace ( if any peace could be ) would bee lesse secure , more pernitious then the plunder and sack of unruly warre , which how boisterous soever it be , like rivers overswolne , returnes often into its own channell , and leaves the harrassed Citizen , or naked Peasant , to begin sadly the world again , to lay the foundation of a new fortune which may be more firme , which at least for a while he may enjoy alone ; in the other case our owne unworthy sloth , would be Zenophons necessity . The Scythians ( as Arian ) having no certain seats , nor possessing any thing , the love of which might restrein them , continually are in war , disquieting themselves & others a a Arrian . 202. : Whatsoever can be said for necessity , it is impious and unreasonable to frame pretences of injustice upon necessity of our own making . Piety too , upon which in all our distresses before our own industry we are to rely , would bee no more thought of , Nemo tamen armatus opem a diis petere sustinuit . The fancy that there could bee any continuall justice in such communion , were all mens desires and appetites more alike and equal , then we can look they should be ; and the supposition that after the manner of a few Spartans , and their Phiditia ( whither yet every man brought his owne proportion of meat ) all mankind , nay the herd of these meek ones who are only to inherit the earth , could incorporate into an universall Utopian communion and agreement ; where the Lamb and the Wolfe should reconcile , all dispositions and tempers , mix freely , and sympathise , would be as impossible as monstrous , as that new and more then African generation , or Common wealth , where the damned are allowed procreation , and shall beget others to be damned . This alone may condemn these Commoners , and their Communion : It was never known , that any of them who cry up division , had any thing to divide . Other hereticks there are to serve their turn at Rome ( if no where else ) who allow dominion or propriety , but ( so heavenly are the Nephews of Loyola and their allies ) It must bee founded in grace . Iac. rex . Cont. Card. Perren . Tor. Tort. wid . Apolo . Barcl . These have been sufficiently answered by some noble Pens of our side , and of their owne . Doubtlesse if there were any such thing , Saint Paul either knew not of it , or forgot it in his appeal . Had this been Primitive Apostolicall truth , our Saviours blessed legacy of peace charged upon his successors with so much earnestnesse could not have been kept two daies ; the waters of baptisme had quickly been discoloured with blood ; and although the piety and glorious devotion of some of the first converts , was so forward to give every thing to the Church , that by the Imperiall Edicts of amortization , after it was thought fit to bee restreined ; Yet all were not of the same spirit , some would willingly have made this advantage of their faith , and ere faith it selfe could be setled , have raised those troubles upon this colour in the beginning , which perhaps had not only given a check , and stop to the happy progresse of the first planters , but with the generall offence and scandall of the most moderate in opposition have swallowed up all rights , divine and humane together . Farther , if this were authenticke , the condition of Christians would be more hard and unhappy , then that of their infidelity before ; And that of our Saviour , Seek the Kingdome of heaven first , and all things else shall be added to you , more specious then true , ( and which were most horribly blasphemous ) meerly a show of words ; whereas in truth it should be , seek the kingdom of heaven first , and all things else shall be taken away . As we have a right to our propriety by nature , grace which follows it cannot weaken it , not destroy it , but perfect it rather : This hath been long since received in the Schooles of Divines b b Tert. Tert. 203 : . For the author of both lawes of nature and grace being the same , what he has established in the one , hee takes not away in the other ; nor doth he superinduce grace , that he may untie the bond of nature , but that hee may bind it the more : And amongst no men ( I will not say are ) ought to be so sacred the duties of nature , as amongst Christians . And although the friends of this paradox may pretend , there is full propriety still with , or at least a condition annexed ; let them show how such propriety can be full , and how it came to be so setled . In the Pontificate of Gregory the seventh , the Vice god according to the stilo novo : This error began , as some of their owne Historians confesses ingenuously c c Godf. Viterb . in Hen. 1. Otho Frisi●g . l. 2. H●st . c. 35. l. 1. de gest . Frid. ez 1. . Painfull discoveries to accomplish arts and sciences are highly honourable , but in these last daies to start new articles of faith never heard of in the first , and purest ages , to serve the designe , to extend the Papall power ( called omnipotency ) so farre , that that which in its owne nature is evill , by it shall not be evill at all , is an intollerable wickednesse , enough to make all men avoid them . And since the best arguments now for lawes are from the Estate , those who either by their own providence , or the frugality of their ancestors are full and of considerable fortunes , must know they cannot be safe without lawes ; the fangles of these desperate fanaticks who every day arraigne these sacred tables , nor can nor will preserve them , by the just and wholesome sanction of the laws obeyed and reverenc'd , not by the charmes of Sybils leafes , or Numa's shield did the Roman Common wealth advance her lofty head . Major haereditas venit vnicuique nostrum a jure & legibus quàm à par●rs●ibus . No man is assured , He shall either keeps his estate or transinit it to his posterity , but by the lawes ; let the inheritance be what it can be , there is more taken from the lawes which direct and fix the descent and wall it in , then from our parents . The poorest necessitated man , amidst the calamities of this wretched life , were not the law his sanctuary , would yet bee more unhappy , whatsoever his loathing his present condition may make him imagine ; oppression the heaviest of all miseries would crush him to pieces , and break the repose of his shortest slumber : without law , ( as it is observed ) neither could the merchant passe the seas , nor the traveller the highway . The malice of the clowne , the fraud and dark arts of the City would surround us , and what most we prize , though wee want the comforts of it , no mans life cold be safe a minute ; nothing would bee sure , nothing certaine without law ; There could be no commerce , no conversation amongst men , Kingdomes and states ( as Sir Iohn Davies ) would be dissolved ; this protects the orphan , the widdow , and the stranger d d See Sir I. Dav. Preface . : this is a pillar of fire , a glorious starre guiding all men through the darknesse of humane actions . I know there are those will tell us , that though this be true , these paines may be saved , that where there is no transgression , law is in vain , and a caution too much , that there is a succession of men entered , or ready to enter with the Chiliasts , if there bee room then , non vox hominem sonat , as the Donatists used to brag of themselves , where every one shall be good , and just , so clean so pure and angelicall , that they may say beyond the Gnosticks not onely that they like not the lawes of nature or men , but that they were not needed , they could live innocently and righteously without them ; I wish it , but I hope no man will thinke me a Timon , a man hater , if I cannot beleeve all this ; I have not found it so : I should think it more safe to trust lawes then men , he who would shake off the lawes , will hardly be bound by conscience . I cannot conceive otherwise , but if things were come to that , that Lawes and Chancery were to be seated in every mans breast , there would be much more dishonesty then there is , our owne interest would be the principall mover : There has been much foule play , much deceit under the shadow of goodnesse , there may be a sanctity meerely of the face , that of the Pharisees was no deeper ; Mat. 23. They devoured widdowes houses , and for a pretence made long prayer . It will be time now to show what law is , then to descend as orderly as I can to our own lawes , ( and to make it visible , that there is nothing singular in them , from other the most ancient laws of Christendom . But wherethey excel them in justice mercy and certainty , and in antiquity too ; if wee look upon the fundamentals , and back to the first rise . ) Next to remove those false calumnies which the rash lightnesse or malicious ignorance of the adversaries , ( as malignant clouds betwixt the sun and us ) has cast upon them . Vt quisque est imperitior administrationis & necessitatum publicarum tanto plus sibi arrogat in legibus interpretandis , we may say , abolendis ; The more unskilfull any man is of government , and the publicke affairs , the more will he arrogate to himselfe in interpreting or abolishing lawes . The pride and selfe conceitednesse of an ignorant as it is commonly the greatest pride , so it is the most dangerous ; whose suppositions at the most are the great arguments , and whose imagination , not demonstration , if it must prevaile , no foundation can be so fast but it must be shaken : a weather beaten ship in a winter sea may be our emblem , every day tossed and bruised betwixt shelfes and rocks without an anchor , and where never any unhappy lost men could find a haven .

For the sacred Laws of the Land .
CHAP. I.

Of Law what it is . It 's Antiquity and necessity , of Liberty .

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 words of Justinian a a 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 b b 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 c c Bract. l. 4. c. 4. , Force , and Law are opposites d d 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 e e 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 either Law or force prevailes . In his judgement meer force ( those are his words ) is the fountain of in justice f f 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 g g 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 h h 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 i i 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 k k 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 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 m m 2 E. 3. . Power ought to follow the Law , not to go before it n n 3 Inst. 160. . As Britton . We will that all men rather use judgement then force o o 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 p p Fleta . l. 1. c. 29. . Britton unites Peace and Law ( in another place ) as fully , Peace says be cannot well be without Law q q 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 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 r r 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 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 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 ; s s 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 . t t 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 . u u Tort. Tort. 145. We read , That is lawfull which the Law of the twelve Tables and the Iulian Law permitteth , w w Wel. 7. si paciscat Dr &c. li. 1. D. de Just. & jur. and in the same Civill Law 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 , x x Cicero Philip. 13. in which sence Vlpian 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. y y 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 ; z z 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 . a a ibid. The Jewish Lawes of the Decalogue by Gods command were written , the Lawes of the Athenians were written , by which they are said to excell those of Sparta . b b 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 . c c 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 ; d d 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 . e e 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 , 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 . f f Vbi 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 seemes to dislike , g g 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 . h h 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 . i i 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 . k k 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 . l l de leg. 1. Vlpian will have Antiquitie to be instead of a law , or as a law , instead of a constitution , instead of consent . m m 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 . n n 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 , o o 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 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 , p p 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 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 . q q 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 , r r Lexi . ju . civ . lit . Lex . who names Moses , s s 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 Common-wealth ; nay , and the most renowned of Greece for wisdome and learning , as Orpheus , Musaeus , Daedalus , Homer , Lycurgus , Piato , and Pythagoras ; but into Egypt t t Li. 2. c. 6. , and again Lycurgus , Plato , and Solon brought many lawes taken from the Egyptians to their Common-wealths , 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 u u 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 others theirs from the Iewes , whose tongue and dialect was the same with the old Hebrew w w Voss . G●ammat . l. 1. c. 10. Grot. de . 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 x x 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 y y 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 z z 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 , 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 , a a 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 . b b 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 . .

Lex est , ut srbae , qui , qui sint genere proximi , Iis nubant , Et illos ducere eadem haec lex jubet .

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 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 , c c L. 2. de Legib. c. 14. all have certaine principles and foundamentals to be granted , not now to bee 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 , d d 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 ) e e l. 2. Epist. c 2. but not every where conspicuous , Alciat blames Bartolus for denying reason to be the essence of the Law , f f 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 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 . g g 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 , 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 Pallas of their braines should not bee brought forth ; Some new Lusinia or Vtopia might be found out , where with more innocencie their new Common-wealth might be set up . He that will judge , saies Aristotle , h h 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 , i i 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 over-reached 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 were not to be changed , although there were some incommodiousnesse in in them . k k 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 . l l 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 m m 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 ; n n 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 o o 2 Just. 98. collects of them out of the 26 Epistle of Robert Bishop of Lincolne , to the Arch-Bishop of 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 , p p 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 , q q 4. rep. Pres . which some will thinke is over-done 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 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 ) r r 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 , by them called sacred ; s s Orig. Eccl. Tom. 1.1317 . yet had this Heretick , as all others ever brag of it , Scripture authority from this Booke ; t t 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 , u u 1 Sam. 17 The 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 . w w 1 Reg. 11 As others were over the rest of the Tribes , Adomiram being said generally to be over the Tribute . x x 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 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 . y y 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 , z z 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 a a 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 free still , Or that the civil Law of our country forbid us b b 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 , Vnlesse any thing be forbidden by the Law c c 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 d d 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 . 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 e e 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 f f 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 g g Tit. of Honour 1. edit. 344. This chapter of the Magna Charta is partly repeated in a later Statute h h 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 i i 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 k k 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 l l 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 m m c. 10. That 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 n n 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 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 o o Plut. in Catone Vtic. , 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 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.

Of the Law of England , and what it is : Its Antiquity , not Norman ; King Edward the Confessor his Lawes brought down to Magna Charta , and there setled . The fundamentals are Saxon-English . The English-Norman Laws since , because of new offences , of Tenures .

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 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 p p 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 q q 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 r r Exerc. 265. . Those of Crotone ( in the upper Calabre ) protest they would sooner die , then mixing with the Bruty ( those of the lower ) change into strange rights , manners , and Laws s s 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 t t 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 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 u u 1. Inst. 11 ( besides which there are reasonable customs , &c. ) The Common Law excelleth the Statute Laws , and may controle Statutes w w 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 x x 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 y y Inst. Jur. Anglic. 25. Dav. rep. . 30. Postrat . . As Moyle , We rule the Law according to the ancient course z z 33. H. 6.8 . . And as Ashton there a a 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 Vse 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 b b E. 5. , and Markham a chiefe Justice c c 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 d d 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 e e Nat. Brev 186.118 , &c. , ( there is Custome of the manner f f Na. B. 3. , Custome of the City g g ibid. 22. ) as Sir Iohn Davies in his 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 h h 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 i i Vbi 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 k k Vbi 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 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 , m m 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 . n n 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 ; o o c. 4. law and custome of the Realme are made the same . p p 1. E. 2.34 . E. 3. Abjuration is called custome of the Realme . q q 9. E. 2. c. 10. The 25 of King Edward the third saies , According to be lawes of the land of old time used . r r 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 . s s C. 15. Statute 42. according to the old law . t t C. 3. In the time of Richard the second , Law and usage are the same . u u 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 . w w 25. Hen. 8. c. 21. Now if 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 ; x x 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. y y C. 26. Six times is the Common law called by Littleton common right ; It is sometimes called right , sometimes justice . z z 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 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 , a a 1. R. 2. c. 2. full justice , and right , b b 2. H. 4.1 . good justice , and even right . c c 7. H. 4. c. 1. Common droiture in a statute d d West . 1. c. 1. is rendred , Justice according to the law and custome of England , e e 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 . f f 1 Just. 142 2 Just. 56. That which is called common right in the second of King Edward the third . g g C. 8. In the first of that King h h C. 14. is called common law ; Not onely as Fortescue , doe the lawes of England favour liberty . i i C. 42. But they are notioned by the word . The word liberties in Magna Charta , signifie the lawes ; k k C. 1.29 . and in that respect is the great charter called the charter of the liberties . l l 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. m m C. 4. In the 38 of Edward the third , the Laws are called Franchises , in the old Bookes the great Charter ( the fountain of all our * * Just. 81. Foundamentall Lawes ) is called the Charter of Franchises , the common Liberty , the Liberties of England , n n Bract. 291 414. Pleta . l. 2. c. 48 Brit. 178 because ( so the Lord Cooke ) they make frecmen . o o 1 Jnst . 1 The customes of England bring a freedome with them ; therefore in Magna Charta are they called Free Customes , p p 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 ; q q 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 . r r 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 the Realme : s s 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 , t t 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 . u u 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 . w w 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 . x x Regist. 64 2. Justi . 53. This , as the Lord Cooke , is lex terrae ; The Law of England , to take a man without 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 ; y y Artic. 38. And that he threatned the Judges to make them deferre judgement : z z 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 . a a 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. b b 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 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 ; c c 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 , Vid. 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 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 , e e 25. E. ● . the old law , f f 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 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 , g g 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 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 ; h h 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 . i i 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 . k k L. 4. Brittanny was not known to be an Island till the comming of Julius Agricola Proprator hither l l 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 of creatures , and gashed , ignorant of gardens , and of tillage ; m m 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 . n n 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 . o o Invi ta Jul. Agri. The first Lawes we find here in use , were the Civill 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 : p p 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 Vske in Munmouthshire , 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 , q q Ann. l. 4. as Dio. In the Court was heard a barbarous murmure with much laughter , r r 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 rebusque civilibus ut prae●sset , as it is translated , s s 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 , called De rerum venditione , t t Cod. l. 3. tit . 32 as the most knowing Knight has observed . u u 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 , w w L. 6. where it is said , ( but of the other Gauls , not of the Druydes , whose imployment was about things divine , x x 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 found , kill the wife , excruciated with fire , and all torments . Caesar where he speaks of the Britains , shewes strange marriages , y y 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 , z z 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 , a a 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 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 . b b 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. c 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 , or Customes came to passe over unto us from the Britains , nor had our Ancestors any thing from them but their Countrey . d d Hist. 9. But the Author of the patches to the Lawes of St 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 , e e 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 . f f 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 , 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 ) g g 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 terms of their own Countries , all of the same manners and tongue . It commeth to passe ( as the most knowing h h 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 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 which stands Francford the head of the Nation i i 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 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 k k 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 l l 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 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 m m 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 n n 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 o o 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 p p de Gest. reg. c. 4. . He might ( which the Glossary is once contented with ) review 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 q q 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 r r Ll. Ina c. 36. . Another — If any man shall demand Justice or right before the Shireman ( the Earle ) or other Judge s s c. 8. v.c. 6.51 . &c. The Proaeme . & mid eallum minum ealder mannum and with all my Aldermen the chapter of breach of the peace — In the Kings Town , Aldermans Town , Kings Thames Town , &c. t t 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 u u 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 w w 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 with his Sheriffe Aethelwine betrayed King Oswine x x 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 y y 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 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 w w 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.

— Facies non omnibus una , Nec diversa tamen qualem dicet esse sororum .

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 z z Malmesb de gest . reg . l. 2. c. 11 ● See here ch. 3. . His title says , The laws of 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 a a 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 b b 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 Germany , which ( as since ) lived , and were preserved in the memory of the people , c c 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 . d d 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 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 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 Wanating , e e C. 4. which speak thus : In all Hundeeds let Assemblies be , and twelve Freemen of the most antient together , cùm praeposito , f f 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 . g g 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 , 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 . h h 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. i i 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 , neither of much judgment nor wit , k k 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. l l Notae in Ead. 194 Courts of Justice were erected before the Normans were heard of , as the Halmot or Court Baron . m m 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 . n n Office of Constab. 9. this Mr. Daniel affirmes . o o 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 , 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. p p 2 Inst. 35 few Suits , or causes of Suits must needs then be . The Hundred which was ten tythings , a Germanie Institution , q q 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 . r r 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 : s s 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 , t t Ll. Eadg . c. 5. ll. Aethelst . m. s . c. 20. Il. Cnuti . c. 7 ● . p. 2. here 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 . u u Ll. Car. & Lud. Im. l 4. c. 26. Car. m. Lom . l. 2. tit . 52. Ll. Aleman . tit. 36. William 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 ) w w 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 , x x M. S tab. Rob. Winch. Arch. Cant. in eadm . 168. and every secular Court is alike forbidden to Church-men 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 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 ) y y 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 . z z 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 . a a 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 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 ) b b Gloss. tit. Aldermannus . like the Missi , c c 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 . c c 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 , d d 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 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 . e e 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 of the same Saxons here , did not so much alter the substance , as the name of the Saxons order . f f 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 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 . g g 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 . h h 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 . i i 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 : k k 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 , l l Malms● . l. 3. 〈◊〉 vita Pontific . and Hugh Bishop of 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 m m 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 n n 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 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 o o Not. ad E●d. 198. William the 2. promises onely easie laws , justice , equity , and mercy , and laws desirable p p 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 q q 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 r r 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 these words , all the liberties and good laws which Henry King of England my Vnkle granted them , and I grant them all the good laws , and good customes which they enjoyed in the reign of King Edward s s 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 t t 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 u u 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 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 w w 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. x x 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 y y 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 z z 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 without a cause , disobedient , unruly Becket a a 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 b b 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 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 ) Vescy , 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 , Mandeville * * Estoteville Munhrey , * * Mowbrey . Montfichet . Munifichet , Montacute , de Gant , Laval , &c c 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 d d 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 , 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 e e 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 u u 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 w w 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 x x id. 317 Ma. W●st . ) the breakers of the Charters are Excommunicated , with candles burning cast away extinguished , and cast away stinking y y 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 z z 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 a a 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 b b 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 c c 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 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 , Whether 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 . d d Ex libro regali . After he is led to the high Altar where he swears to observe them , &c. Further , 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 , e e 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 Withred , neer 700. years after our Saviour , that King being so illiterate , that he could not write his name , as himself confesses , f f 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 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 ; g g 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 , h h Concil. 378. and although there was some breathing , and the storm had some intermission , some calmes were in the two hundred yeeres , 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 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 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 i i 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 , 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 with cast of his eye with 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 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 k k Curt. l. 111 , upon the Kings head l l 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 m m Caes . com . l. 3. . Not upon Nero his kissing the Armenian Tyridates kneeling , which might be thought homage n n Sueton. in in Ner. . Nor upon Alexanders kisse taken by Mr Fulbeck o o 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 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 to their heirs p p 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 q q 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 r r 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 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 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 , ) s s 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 . t t 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 , u u View &c. 71. much augmented and adorned by them they might be , w w 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. x x 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 , y y 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. 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 , z z Cosmegr . 346. after his defeat of the Hongres . a a ibid. 359. Lothaire the Emperour forbad Lords to take away the Vassals fee without his crime , which some interpret signall ingratitude , b b 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 , c c 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 , d d Specul . Sax. Artic. 52. as another they have their fanleben , or principall fees the collation and investiture of which belongeth onely to the Emperour . e e 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 homage to another as Servitors noble , f f Munst . 145. the Land they called Terra salica , was the same with our Knight service , g g 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 . h h 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. i i 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 since 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 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 , k k 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 , 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 estates of the world ) are Gothes , and reteine their Customes though not their name since Roderic l l D. T. V. 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 . m m Jnst . Ju. Angl. pref. 14. Tenures are amongst the Persians , n n 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 ; o o 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 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 ▪ p p 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 . ) q q 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 amongst the French , of the Noblesse , Nobiles militiam exarbitrio tractantes , for service when the fit took them , r r 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 holds 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 . s s 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 , t t 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 . 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 , u u 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 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 , or Husbandmen the Vtland , according to the testament of Bithric , u u 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 . e e 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 non-sense ; 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 , f f 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 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 , g g 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 , h h 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 : i i 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 ; frithsocne is a sanctuary , a liberty of peace . k k 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 ; l l 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 , m m 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 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 n n 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 o o 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 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 , ( which no man now knowes ) yet I see not why these laws should be suspected for it , as they are p p 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 , Vluiet the hunter , Godwin the Falconer , &c. and in a Saxon Sermon q q In Beda 〈…〉 382 . The Queen of Seba tells Soloman blessed are thy servants , theguas and theowan , the Apostles are called thenes r r Bede 483. , yet in other places it may be observed directly and properly 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 s s 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 t t 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 u u D. Seld. tit . Hon. . He acknowledges there were the feudal honorary , 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 Vavassour 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 w w 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 x x 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 ) 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 y y 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 z z 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 a a L● . Ina. c. 52. , and whosoever withdrew himself from the march , forfeited all he had b b Concil. ● Ae●ham . c. 24. , if the king were in the expedition , The Doomesday says — In the City of Hereford — 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 c c 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. Vnder 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 d d 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 ƿaere his mid ƿyrhta that he were his fellow in action e e Cronal . S●x . in an . 945. , of the first of which Harding has .

To whom the King gave then all Eastenglond — To hold of him the Lond.

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 f f 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 , So did the Kings of Wales of high Parage , And all the North-West Ocean For their Kingdomes , and their Lands than .

There is an example of the creation of knight service here before the Normans , in the lives of the Abbots of St. 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 g g Vit. Ab. 46 . In Doomesday is said , That the Church of holy Mary of Worcester , has the hundred called Oswalds hawe in 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 h h 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 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 Vghtred , 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 , &c i i D. Spelm. gloss verb● Dronches . , with the marriage . Whether wardship and marriage ( as the Lord Cook k k 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 l l 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● m m 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 n n Not. in radwes . 152 , and Hereot or relief o o 154. 161 id . , & compares the Hereota to the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Hereor is a service and acknowledgement of the seigniory of another , a tribute ( so Dr. 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 p p 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 q q 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 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 , r r 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 s s ● . 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 , t t c. 3● . and gives his Heires , his Lands , and Money without diminution . u u 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 , 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 , w w 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. x x 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 ; y y Ingulp . hist. Concil. Sax. 328. as another place amongst many things done & said , Ceolnoth the Archbishop before the whole Councell ( of Kingston ) shewed , 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 , z z 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 ; a a 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 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 . b b 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 . c c 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 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 . d d concil. 349. 352. In optona grena ( Vpton grene ) as Ingulphus — St 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 , e e 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 English , and father of the most pious King Edward . f f 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 . g g 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 , h h 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 . i i L. 2 s . 119. Bracton calles the Copy-holder villein sockman ( or sockman of base tenure ) k k 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 I have knowne claimed for a villein being Crouch of Sommerset-shire in Queene Elizabeths time . l l Dy. 266. 283. This too is Saxon English , and preceded the Normans , but was never favoured by the Law . m m 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 . n n 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 Dooms-day 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 — two servants , six villaines , three Bord. with one Sochman , having three Carues , &c. with much more of the same . o o 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 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 p p 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 q q 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 , and Escheates which hold yet in the low Countries and in France , &c. saies Bodin r r 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 s s 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 . 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.

Of the Courts of Justice , of Suites , of Counsellours , of the Judges , of Writs , Pleadings , the Termes of Art , Hotomans censure of Littleton , the common Lawes may easily be digested into method , their principles and excellency in severall respects , mercy , &c. confirmed by Parliaments and testimony of others not of the profession , the professours honourable .

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 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 , t t Ll. Edg. c. Ll. cnum . 16. in this Order saies the same Mr. Lambard , and in these two sorts of Courts was all Justice administred till William the Conquerer , w w 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 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 , x x 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 , y y Addit . ubi sup. and sometimes commands armies , z z 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 , 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 . a a 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 . b b 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 . c c Stat. Marlb . ibid. Here , as another Statute , The Justices are to doe even law , and execution of right . d d 20 E. 3. c. 1. The supreme of these Benches after this alteration , dealt in pleas criminall , called placita Coronae in the books e e 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 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 f f 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 grants the Habeas Corpus out of Term g g 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 h h Hoved. 548. M. Westm . 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 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 i i 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 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 k k 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 l l 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 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 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 , 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 m m 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 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 . n n 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 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 o o V. Ll. edu . sen. c. 5.11 . ) who sentences not according to right , after the testimony of witnesses p p 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. q q ibid. c. 11 like that of the twelve Tables , SOL OCCASVS 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 bocland ( not to be aliened if there were such a condition in the writing r r 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 s s 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 t t ibid. c. 12 . To look downward Magna Charta has it : We sell no man , nor deny , or delay no man justice and right u u c. 29. . It is a maxime in Law , Lex semper dilationes exhorret . The Law alwaies as ( Markam ) eschewes delaies w w 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 x x 20 E. 3. c. 2.28 E. 1. c. 10. , they are sworn to it y y 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 z z 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 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 a a 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 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 b b 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 c c 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 d d 4 Just. 68. . There is a Court erected by Parliament for errours in the Kings Bench , as it is called by the Statute e e 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 f f 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 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 , 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 ; 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 , 't is 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 , 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 g g l. 6. deleg c. 1. . The Statute raising the Court for delays before-mentioned , makes it plain there may be , not onely difficulties , but diversities of opinions , in the Judges too h h 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. i i 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 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 k k 4. Rep. P●af . ) in cases of great difficulty , the Judges being equally divided in opinion , the 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 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 l l Praef. ded. f. 6 , 7. . Thus as there are diversities of opinions amongst the professours of the lawes ; we see there are 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 are oftner tryed in the field then in the Schools m m 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 which hereafter ) were instituted to deter men from injust suits , and defences n n 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 o o 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 p p 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 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. ) 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 ought q q West . 1.3 . E. 1. : Then the great men would not be justified , have and receive Justice in the Courts of Justice r r 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 s s 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 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 persons t t 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 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 u u 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 t is said ) upon the difference of precise and causative compulsion w w 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 x x ●● H. 6.25 . They use to enquire of Surgeons concerning maihem y y 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 z z r. 5. 1. p. 7 . and in another place , Though it be against the reason of the common law a a 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 b b 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 them for vain lawes , which no Nation of Greece could ever be perswaded to use c c Athen. l. 12. c. 22. Polyb. l. 6. . The Lawes of the Tables which dislike him were these : This de injuria paenienda SI. INJVRIAM . FAXIT . ALTERI . VIGINTI . QVINQVE ARIS POENAE SVNTO 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 . RVPIT . 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 . REBVS . Q. JVRE . JVDICATIS . TRIGINTA . DIES . JVSTI . SVNTO . POST . DEINDE . MANVS . INJECTIO , ESTO . IN. JVS . DVCTIO . NI . JVDICATVM . AVT. QVI. ENDO . EO . IN JVRE . VINDICIT . SECVM . DVCITO . VINCTIO . AVT. NERVO . AVT . COMPEDIBVS . QVINDECIM . PONDO . NE. MINORE . AVT. SI. VOLET . MAIORE . VIN ITO . SI VOLET . SVO VIVITO NI SVO VIVIT QVIEM . VINCTVM . HABEBIT . LIBRAS . FARRIS . IN DIES . DAT● . SI. VOLET . PLVS D ATO . TERTIIS . NVNDINIS . PARTIS . SECANTO . SI. PLVS . MINVSVE SECVERVNT . SE. FRAVDE . 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. JVS VOCAT . SI. MORBVS . AEVITAS . VE . VITIVM . ESSET . QVI . IN. JVS . VOCABIT . JVMEN . 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 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 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 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 d d 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 year-books , 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 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 .

Hic stupor est mundi qui scibile discutit omne .

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 , 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 c 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 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 f f rep. 4.124 Plow . Com. 19. . By Pittacus his law amongst the Greeks , allowed by Aristotle g g 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 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 h h 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 i i 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 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 k k 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 l l 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 m m 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 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 n n 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 o o Vid. Stat. de Bgam . . And again , It is agreed by the same Justices , &c p p Ibid. i. 6. . The Statute of Marlbridge sayes — For default another day is to be assigned according to discretion of the Judges q q 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 s s W. 2. c. 12 , in another place , Whereas the Justices in the plea of Mortdancester , have used to admit the answer of the tenent t t c. xx . , the Statute 27 of Fines , is according to discretion of the Justices u u 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 w w 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 x x 2. Inst. 399. . In the Parliament 19 of Edward the first , Sir Thomas of Weyland chiefe Justice of the Common Pleas having 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 y y 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 z z Inst. 57.59 . . Distresses , are by the Statute of Marlbridge to be reasonable a a 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 , and wrong , what are evil customes , and what not , according to the Laws , they have the use and customes of judgement , saies a Statute b b 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 c c 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 d d 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 e e Rep. 11.1.39 El. . Here is an allowance of the latter , as wel as former ages , whatsoever the change 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 f f 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 may be destroyed with the wicked the Wheat plucked up with the tares g g 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 h h 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 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 which 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 i i 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 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 , 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 l l 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 m m 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 , as a praecept to the men of Luiton , to recognise the truth of the right of the Church , &c n n Vit. Abb. 67. . Another place , has attached according to the law of the Landby the Kings Writ o o ibid. 143 . elsewhere they are called Letters , the Letters of the King , and of the Chiefe Justice are set downe in this Historian , p p 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 . q q 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 , r r 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 . s s id. 735. s . 30. A Writ with us , is a rule of Law , which briefly tells a thing , t t 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 . u u 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 . w w 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 : x x 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 : y y 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 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 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 , z z 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 erit , 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 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 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 which 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 might be returned upon themselves . As the Bishop of Virste , no Law consists in words but in the sense ; not that which the common people or Grammarians bring , but as use and authority affirme . a a 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 , 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 . b b Pr. f. ad Gaess . By the knowledge of this language of our fore-fathers ( as Master Lisle ) we may finde out the Etymologies 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 out-gone , 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 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 . c c 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 , 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 . d d 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 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 Mortalis immortalis si flere foret fas : Flerent divae Camaenae Naeviom poetam . Itaque postquam est orchino traditus thesauro , Oblitei sunt Romae loquier letina lingua .

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 might come short of the former , and not expresse with halfe 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 e e 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 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 . 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 , 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 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 Pellitur e medio sapientia , vi geritur res . Spernitur orator bonus , horridus miles amatur &c. Nou ex jure manum consertum sed mage ferro . Rem repetunt regnumque petunt : vadunt solida vi .

* * 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 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 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 f f 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 , ( 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 g g 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 h h 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 , i i 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 Gentilis and Alciat require , that the authorities , and cases of the Doctors be weighed , not numbred k k 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 l l 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 , 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 m m 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 . It s 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 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 n n 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 o o 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 . As that Senates should be used for revolters , reconciled & reunited . Fortes for good men never revolted p p Tab. c. 49 . Pauperies in the law , Siquadrupes pauperiem fecerit , &c. Should signifie hurt or damage q q 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 r r 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 s s 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 t t Gell. 11. c. 17. . This of the tables will appeare as strange as any thing . QVI. SE. SI. ERYT . TEST ARIER LIBERI . PENS . VE . FVERIT . NI . TESTIMONIVM . FARIATVR . IMARN BYS. INTE . STABILIS . QVE . ESTO . u u Idd. 15. c. 13. A. Gellius 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 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 w w 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 & 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 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 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 shew what the old French was by these words , soffrera , souccours , resceipts , Pees , Trewes , subgitz , forspris , nadgairts , &c. x x 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 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 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 y y 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. 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 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 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 , 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 from 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 z z 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 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 a a 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 b b 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 , 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 t is 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 , 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 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 c c 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 yeer-books , 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 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 he ) to make of the house of prayer a den of thieves d d Van . 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 , communion of women praised by Plato e e 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 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 f f 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 g g Sect. 18. . The Lord had power of life and death over his slave h h 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 trifles ; Vedius Pollio threw a slave to be devoured of Lampries ( which he fed thus ) for breaking a glasse i i 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 k k 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 l l 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 m m 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 without restitution , being disseised of what he had , since no disseised man is obliged to answer in any Gourt , &c. n n 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 o o 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 p p 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 , q q 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 , r r 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 Judgement to hang him . s s 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 . t t 3. Inst. c. 2. The Judges as in Humphrey Staffords case is observed , u u 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 w w Plowd. 66 Dy. 13.76.119 , 120. . Every restraint of a free man though not within the walls of a prison , is imprisonment x x 2. Just. 482. Rot. Pael . 2. H 4 nu. 60. . No man is to be arrested , or imprisoned against the form of the great Charter before recited y y 2. Just. 54. . No man is to be imprisoned but for a certain cause to be shown z z 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 a a 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 b b 8. H. 4.18 . . The Abbot of Crowland forfeited his Franchise for deteining prisoners after acquittal , and their Fees paid c c 20. E. 4.6 , such deteining after the Habeas Corpus is false imprisonment d d 2. Just. 53. , there are many provisions for those who are grieved in these cases , by Indictment , Writs , and Action e e 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 f f 3. Just. 35 91 , 92. . The prison , as Bracton , is not for punishment but custody . A certain Priest arrained in the 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 g g Fish . Corene 432. ; and as to irons ( saies the Lord Coke ) there is no difference betwixt a Priest and a layman h h 3 Inst. ubi sup . . No felons comming to answer in judgement ought to be charged with irons . i i 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 k k 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 l l 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 that kills by misadventure escapes , the Towne where the Fact was committed is to be amerced m m Fitzher . Corone 302 2. Iust. 148 , 149. . So where the killing is se defendendo n n 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 o o 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 p p 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. q q 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 r r Coroue 304.320 . v. 339.402 , 421. , so where a man dyed suddenly of a Feaver and was buried without viewing by the Coronour s s ibid. 329. , a Lunatick kills a man he must sue for his Charter of pardon t t 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 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 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 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 used for amercement , there must be mercy in it ; saving his countenance ( salvo contenmento &c. ) the Merchant saving his Merchandise , the villain his wainage x x 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 y y 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 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 .

Quae fecit si quisque ferat jus fi●t & aequum .

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 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 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 z z 3 Inst. 222 . Subtilty which wrests a manifest text of the Law is condemned as unrighteous a a 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 b b 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 c c 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 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 d d 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 e e Fleta l. 2. c. 1. , then fine and ransome f f Brit. 38. , Now forfeiture of a certain sum , and imprisonment g g 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 h h Trin. 6. Car. reg. in Camara flell . . It would take up too 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 , i i 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 k k 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 l l 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 , 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 m m 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 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 n n 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 , and town , the mulct of wrangling was made 30.8 . o o 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 p p 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 q q 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 r r c. 8. . Amongst the Prerogatives of the West Saxon kings , are these , breach of peace , & house freedom s s 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 t t ● Inst. 9. . The 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 u u 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 w w 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 warders of the peace , so are Tithing men , Borougheads , Constables , and petty Constables in their limits . As the first of Ed. 3. x x 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. 7 and 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 y y Becket in Ma. Par. 101. ; Such as without a saving the honour of God , and of holy Church z z Hoved. Savil. 492. , are not to be sworn to , against the faith , as the Bishop of Rochester , may be thought to mean . a a 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 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 b b 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 c c 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 d d 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 e e Ll. Aethelst . proem . . So have the Kinge Edmund and Edgar f f Ll. Edm. c. 2. Edg. c. 2.3 . . The same Aethelstane concerning Church-Burglarie g g C. 5. . Edmund again concerning repair of Churches h h C. 5. . King Cnut for the peace of God and the Church i i Ll. Cnut . c. 2.3 . . The Councel of Aenham a Lay Councel , Commands that all men defend Gods servants , and honour them k k Ch. 30. ll. Cnut . c. 4. . As much respect was to be given the Priest as the Thane l l ibid. c 2. . The head of the Mass Thegne , and of the Wordly Thegne or less Thegne are valued alike m m Ll. Aethelst . Be ƿerum . . What priviledges the Church injoyed in its possessions may 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 n n Concil. Aenh . c. 9. . Let peace be binnaen ƿagum , within her walis o o Ibid. . 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 p p 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 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 q q 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 r r 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 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 where : who doth not need an Epitaph ? Victory over our selves , over our own passions , private interests , pride , vain-glory , 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 s s 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 t t c , 5 , 6. . And again there in the Chapter of the Maletot . u u 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 , No Tollage , nor aid was to be set or levied but by common consent w w 34 E. 1. . All new Offices with new Fees are within this Statute x x 2 Inst. 533. . No man is to be charged by any benevolence , which is condemned by a Statute , as against the Law y y 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 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 z z 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 a a 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 now men swear to keep under the name of King Edward ; not that he ordained them , but because he observed them b b 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 c c 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 d d 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 . e e ibid. 384. Stephane of Segrave , the chiefe Justice is charged in another place , with corrupting the laws , and introducing new ones f f 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 , &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 g g 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 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 h h 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 i i 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 k k 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 , to preserve those things which are neither worth a care nor being . The Statute 28 of Edw. the 3 l l An. Dom. 1363. speaks thus : The good , ancient Laws , customes and Franchises of the said Realm . The second of Richard the second m m 2 R. 2. c. 1 Wills that the great Charter , and the good laws of the land be firmly holden . The 3d. That the good laws and customes &c. be bolden n n 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. o o 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. p p 1 Jac. reg. c. 2. Twice in 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 q q 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 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 r r 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 s s 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 t t Les Esta . &c. p. sci●ur D. T. V. Y. v. Sir Rob. D alingt . surv●y of Tuscany . . The Lord 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 u u 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 w w 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 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 x x 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 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 y y 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 a a In Sitph . reg. . And 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 b b 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 c 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 d d 1. H. 6 , 7 v. D. Spelmver he Baron Scaccer . . All Judges sayes ( the same Mr Selden ) were held antiently as Barons 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 e e 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 f f 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 g g 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 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 h h 8 H. 6. c. 10. . And another , At the Creation of the Serjeants of the Law i i 8 E. 4. ● , 2. . Which is observed ever to be applyed to dignity k k Rep. 10. Epist. . The Patrons of causes called ( pleading advocates , and Narratores ; Counters of the Bench or Prolocutors of old , as Paris ) l l 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 ; m m Vitae Abb. St. Alb. 74. Adam of Linley , is said to be Abbot John the 1. his Counsellor in all his weighty affaires , a curteous man , honest , and skilful in the lawes n n 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 o o Ibid. 142 . Hence it is that the ancient habit of secular Judges was the same ; and yet is with that of the Ecclesiasticks p p 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 q q 984 , 985 Hist. . And again he sayes , The Clerks who such Writs dictate , write , signe , and give counsell r r 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 s s ibid. 190.101 . . Hugh of Pa●shul clerk is made justice of England by Hen. the 3 t t Hist. 405 . So was the 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 u u D. Spel. Epist ad conc●l . ; men whom the Lawes were beholding to w w 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 , 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 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 .

FINIS .
The Table . A. AIde to Knight the eldest son , &c. 127 Alodium , alodiaries , 129 , 130 , &c. Aelfred the King not the founder of the Saxon policy , 85 , 86 Aequity , and judging according to equity , how to be understood , 31 , 32 Aescuage 127 , 149 Aldermen amongst the Saxons , 98 B. Barons , Norman and English , ever lovers of the Laws 107 , 280 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 Bocland 140 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 Britannie and the Britains under the Romans , 71 , 72 , 73. The Civil Law the first Law heard of them amongst them , 73 , 74 , governed by Kings , 72 C. Casars Commentaries l. 6. concerning the Gaules and their wives , 75 L. Chancellours Oath , 65 Chiefe Justice the greatest subject , 159 , 288 , 289 Church highly favoured by Lawes , 273 , 274 Circuits of the Iudges , 163 Civilians what opinion they have of the Pandects , &c. 226 Clergy men heretofore Lawyers , 292 Cnut the king composed the law called the law of St. Edward , 88 Counsellours , 175 Courts of Iustice are of Saxon original , 94 , 95 , 96 Courts since , 159 , 160 , &c. Courts standing and ever open , 165 , 166 Customes unwritten why , 89 D. Delayes odious in the law , 169 , 170 , &c. De rerum venditione , that constitution set forth at Yorke ; 74 Drenches , 143 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 The Duilian ba●k , 218 E. Earles amongst the Saxons , 98 Edilinges , 140 Edward the third first changed the Welsh lawes , 76 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , what , 200 Eleutherius his Epistle to Llever Maur , a forged piece , 73 F. Faulehen what , 124 Feudes , 121 Firdfare , 149 Foleland , 129.152 Forstale , 134 Frankalmoigne , 127 Frankleudes , 129 , 130 The French Policie and ours much alike , 126 Fyheren , 124 Frilinges , 126 Fundi limitrophi , 119 G. Gavelkinde in Germany , 125 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 The Germanes and their institutions , have over●●owen all Europe , 78 , 79 , 80 Their lawes called salic more antient then Justinian 81 Glebal gold , 120 , Adscriptitius ; ibid. Grithbrece , 134 H. Henry the eight imposed wholely the English lawes upon the Welsh , 77 Heinfare , 145 Hereban , 150 Herefare , 127 , 143 Hereot , 127 14 High Court of Iustice , 97 , 159 Hotoman his censure of Littleton , 240 I. Infangennethiefe , 134 Iudges not to decide causes according to discretion , how to be intended , 32 , 33 Their authority , 199 , &c. Assistants to Kings and Parliaments there , heretofore Barons , 290 Honoured , 292 , 293 Iuries , tryals by them not brought in by the Conquerour , 92 , 93 Iustice to obey laws , 33 K. Kings of Macedon ruled by law , 24 Of Mexico might not be touched , 45 Kings of England their Oath , 111 Might free men from the Firdfare , Burgbote , &c. 151 Kisses given to Princes , 118 L. Laudamentum , 124 Laws — the enemies of them , 1 , 2 Necessity of them , 18 , 35 Law , what it is , 34 , 35 Force is not law , 23 , 24 , 25 Nor the arbitrary will of man , 27 , 28 Why laws were written , 30 , 31 How antient , 35 Law of the land in Magna Charta is not waging law , 50 , 51 Common Law , 75 , excells and may controle Statute laws , ibid. Custome and expirience begot it , 60 , 61 It is known and to be found in books , 60 , 65 , 66 67 Its antiquity not Norman , &c. 64 , &c Laws of Hoel Dha and the Welsh , 76 , 77 Salie Laws , 86 , 81 , 82 The Saxon laws , 84 , the several kinds , 88 Our fundamental laws Saxon , 90 , 91 , known by the name of St. Edwards laws , 100 , 101 , 102 , 104 , setled in the great Chaster , 108 , 110 then called Common Law . Letters of the Ionians and Phaenicians heretofore neer the same , 37 Loudes , 131 Liberty what is , 45 , 46 , &c. Littleton vindicated , 240 , 241 Lombards their laws , 84 M. Manners and priviledges belonging to them amongst the Saxons , 133 Method of our law , 243 N. Normans themselves ever zealous for the laws of St. Edward , 135 , 107 , 108 They as some , received their lawes from the Saxons , 112 O 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. 120 Operae liberterum 119 P Papinian Judge at York 74 Papists ever enemies to the law●s 67 Parkes 136 Plea of Pinneden under Will. the 1. 104 Pleadings 209 Polydore Virgil 92 , 93 Propriety 2 , 3 R Rectories and glebe-land , whence 151 Reliefe 127 , 131 , 147 S Salbuch in Germany 83 Saxons their policy and government 85 , 86 Sac. 134. The Saxons subverted all things 77 , 78 Saxon tongue 215 , 216 , 217 Sicyon never changed her lawes in 740. yeers 53 Slaves thrown to Lampries 252 Soc 134 Socage 129 Spaniards retain the German customs 128 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 120 Subverters of the laws 66 , 67 T Team 134 , 135 Tenures all Europe ever 118 Reasons of them 119 , 120 All lands held of the King 149 Terms of the law 213 , &c. Thanes , Thenes . 137 , 138 , &c. Tol 134 Tribonian censured by Perrinus 226 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 V Vassi dominici 125 Vicedominus 99 Villeins 153 , 154 Vtwara W William the 1. his entry not so violent as is thought by some 143 , 144 Writs , whence they issue 162. See 207 , &c. anciently the Kings letters there . No man to answer or be called in question without a Writ 209 FINIS .