FOR THE Sacred Law OF THE LAND.  
By Francis white.  
〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉.  
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 leaves beneath, of the fullness of cur Saxon English Tongue, of its goodness and worth; I will show 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 sleepy grave, and breathing life again into words hundreds of years ago dead and forgotten. We need not delve for buried gold, nor look back for words frightfully old (as they may go at the first sight) such as would be dreadful 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 mouths (as they are thought) we may gather enough, though what we gather thus is wronged in them every day more than other;) if all these were brought into one heap, and rightly laid together, we should find ourselves rich within ourselves, without taking up on trust. The most learned of the wise men heretofore, 
Aristot. de gener. animal. l. 4.  tells 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 foul than the sin of our birth, and its guilt, hate nothing more than them; not their outside only, but their goodness (which never any breasts were fuller off) is loathed by them, as are loathed, not only their speech, understanding, and lives, but their laws and belief; slighting all things before themselves, as if nothing were well laid hitherto, but we were to begin the world from the bottom, upon another groundwork: like some sons of another adders teeth, or of our mother earth, lately sprung up, sons of the warmer Sun, and slime, risen but yesterday. As to the Laws of our Saxon English, that I may deal within my own reach only, (For from those as from springs of wholesome waters, the streams of our later Laws spread;) Whoso will read them over with a steadfast 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 look on the strength and height of the walls, the smoothness of the walks, the goodness of the whole building, he must see God has been there, or men of heavenly offspring, the sons of God. A worshipful Bishop amongst our greatest for all kinds of knowledge, but no friend to the Halle, bewails us in this- That of the coming 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 retchlessness 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 darkness must be the thicker after. This is true, and we cannot be enough sorry for it; yet besides the hoards of books now left, those which have not seen the light, (and likely never shall) and which have, and are in every man's hands, can teach us, not sparingly, no small deal of that which is bewailed as lost forever. And if there were less (which I hope shall not be) the skill of a cunning hand may be seen by the shortest stroke. But bless me, I am got abroad in open sight, and must make a stand; The Readers leave (this cannot be helped) must be asked to go 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 hearty the meinies smiles, who must be taught how to like, and whom.) I ask 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 fair welcome into the World; but I will not throw myself at any man's feet, nor lick up his spittle for the kindness. He whose end is nothing else but the good of others, should not fear himself, he ought to stand upright above this lowness, as indeed he is; yet am I not so idle to think myself some merry Knight of the Book, and that my over loving Witch by her mighty spells has kept these fields for my wonders, that this enthralled Queen cannot be freed but by my arm, 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 losing of other men's tongues upon me, if I come off with a few short blows of dulness, heaviness, or weakness, 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 unthankfulness, the hallowed ashes of the dead are cursed and torn up, of the dead who living held the Heavens up with their shoulders, made the Sun shine, and the clouds rain: so fare is this bitterness 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 shoved up and down in the streets, is wise. But we live not only for ourselves, something we own to mankind, more to our own blood, to our mother England. And as many other men easily outgo 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 fare: The undertaking fairly to heal the unbelief of some weak ones (for I am not so brainless to think that those who side, and hate for their own sakes will be shaken with words, that such a stubbornness can be over come) who without any ill within, any unsoundness 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 boldness to be chidden by any. I would show these forlorn ones, how sadly they lose themselves, how good and even the old road is, how dark and uneven their own by-paths; how in the first they may find the holy footsteps of their forefathers, and the wary steadiness of their treading: in the last nothing but winding and giddiness, nothing but everlasting weariness; where, as is said of the old Ghosts below, they shall wander for ever, more flitting than smoke, and sparks of fire, which however hindered by the winds, striking them down, climb upward on wings unseen, and at last are swallowed up, and taken in to their own home. If these be as willing to hear others, as they are empty themselves, he who says lest may win them; and so be, that they will bow at all, they may meet with stronger leaders, of the highest worthiness, such as it will be no shame to them were they more, and better than they are, to yield to, if yielding itself be not a shame) (where we run heedlessly 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 man's 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 foully from the truth, if I stood not so fast as I should do. 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 gild of any man's hand or wit, has its kindly loveliness; like Heaven above, it shines bright from its own beams.   

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. soldiery 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 gay & 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, DUCTIO for DUCITO 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 (add) has. p. 99 l. 6. after Aelfred (add) 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 (add) to. 171. l. 9 Tenth read True. l. 12. read we will. p. 178. l 1. place and (after) uncle. 181. after Conflicts (add) are there 187. l. 9 Many read May. 194. l. ult blot out not only. 260. l. 27. after is (add) in. 191. after Rome (add) which was. 176. l. 17. for a, read as a. 146. in the Margin to Saxon is (add) Mancus. 131. in the marg. to Cheding (add) 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 easy to make a stay, naturally where we cannot proceed, we must go back; there may be an unhappy weakness of men not to love long, be the object never so excellent, a weakness born with us, and which Nature only 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 ancient 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, than the smallest rotten part is the whole; made up chief of Anabaptism or Levelling, referring all things to themselves, willing to embroil every where, of restless spirits, and not likely to be satisfied with any form of Government, nor with any Laws, it being Order, and Law, of what kind soever they strike at and undermine, Breakers of all Laws, and enemies of the league of mankind, whose fanatic 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 ruin 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 Vid. Sleid l. 10.  But should these men's 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 than 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 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, unless 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 always in the state of war, (unless all men will be contented to gather crumbs under a King John of Leyden's table) and the strongest arm carries all. For the Leveller a near kinsman, either we know not yet (which is the most likely) his full meaning, Or he is not got past the old Agrarian Gavel-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 himself nor his. (So Livy in that speech made for the Consuls M. Genutius, and P. Curtius, 
Lib. 4.  against Canuleius the Tribune and his Laws.) 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 dissoluteness. 
c Republ. 939.  Il n'y eut jamais de Republique ou ceste equalité de biens, et d'honeurs fust gardee, says the French Bodin. This equality could no where be kept: with it there can be neither Magistrate nor Laws. 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 enclose their fruits, that alone they might sit over things hidden, but admit the poor to the communion of their own labour 
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 find. Adam as is observed, was the universal Lord of things by donation from God, & not without a private dominion, 
e Gen. 1.28.  or propriety excluding his children without his Session or assignment, by which they had their Territories distinct in his life time in their own right 
f D. Seld. Ma. claus. 13. . (which proves this home) Abel who is a feeder of sheep, had his  and Pastures; Hence is Cain called a tiler of the ground, & had his Corn and Cornfields. 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 days 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 Gen 10.25.31, 32. . I'm had the south, Sem the east, as Josephus, Eusebius, The Chronicle of Alexandria, etc.  
Grotius speaks thus; Things came into propriety, not by the only act of the mind (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 pact expressed, as by division or , 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 own 
h De jure Belli. etc. 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 he adds, That introduced, it is unlawful for me to take that from thee against thy will which thou hast a propriety in. Natural law itself shows, that long or continual occupation or possession, and lawful taking the profits is sufficient title. 
i D. Seld. ma. claus. 1.  That trick 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 Concil. Trid. 402.  more for the first occupant, the ancient owner, having perhaps not only 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 he had there, should claim a share in the possession; nay what adventurer, who shall at his own charges bring others with him, (as in the first rudeness of the world, And since, when the first homes were too much crowded, the descendants of the Patriarches and others, as Captains 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 himself upon the best soil of his new discoveries, and assign his followers their proportions, which no second comer ought to beat them out of? Every man we know in the first ages made wells his own by occupation. 
l Gen. 21  It is plain this propriety was amongst the Jews, and allowed by them; besides that command from God, Thou shalt not steal. Abraham their father tells the King of Sodom, I have lifted up my hand to the Lord, etc. from a thread to a shoe latchet, that I will not take any thing that is thine 
m Gen. 14. . God by a Covenant gives Canaan to his seed 
n Gen. c. 15. . The same Abraham purchases the Cave of Machpelab, he gives all he has to Isaac 
o Gen. 23.25 . Jacob, buys a parcel of a field where he had spread his tent, at the hand of the children of Hamor, Sichems' father, for one hundred pieces of money or Lambs 
o Cap. 33. . Moses and Joshua divided the Holy land amongst the Israelites; It is said, And Moses gave inheritance unto the half Tribe of Manasseth, and these are the Countries which Moses did distribute for inheritance 
p Iosh. 13. : But this distribution made not the Tribes intercommoners, the Families had their distinct inheritances; Hebron (as the Holy Book) became the inheritance of Caleb, etc. to this day 
q Iosh. 14. . This was the lot of the tribe of the children of Judah by their families 
r Cap. 15. . Ruth gleans 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 Gen 21.  Joseph (as we read) bought all the land of Egypt for Pharach, only the land of the Priests bought he not 
t Cap, 47. . Nor did our Saviour, who was no judge (as himself speaks) of inheritances, take away the law of propriety, more than any civil law else; but the law of Moses only, and that partition wall which separated the Jews from other Nations. 
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, etc. can make nothing against this, being a voluntary act, an huge trial of a rich converts piety, still as Saint Peter to Ananias; Whiles it remained, was it not thine own, and after it was sold, was it not in thine own power. This is more plain by our Saviour in three of the Evangelists, where he tries the faith of a rich man, sell all (says he) which is liked well enough by them; But than follows, And give to the poor, which will not please much. These meek ones are merely for taking away, neither hath this Communion been faithfully observed by themselves. The successor of the great Prophet at Munster (their sty, or kennel,) 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 unlawful; 
Sleid. l. x.  And in the siege of that place their mock-King had his private storehouses, for himself, his phrenetic apron Peers and whores, whom he feasted daily, while the racaille, the rascality 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 patriarchs of the new world, (who outlived the ages of Kingdoms, and Commonwealths, 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 we find amongst the Alarbes, or those of Florida, whose character is, that they are barbarous sordid and inhuman; although I say we 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 cattles or pasture, (for gold and silver were then of no use, and in Mexico and the West, served only of late for arms 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 Patriarches then (as it is likely) any since, whom they obeyed, and reverenced willingly, more out of piety than fear, as in a paternal government, where the Father as chief of the house, was the Prince and Priest of the Family, and every wrong was done to a brother, an uncle or a kinsman. But when men began to spread into Families, Tribes, and Nations, not contented with the homeliness and simplicity of their Fathers, nor with things freely growing, and at hand, every man employed himself to get those things which he conceived necessary, either for his subsistence or pleasure, which no man would have done, if like Virgil's Bees, or Oxen, he had not toiled to his own benefit. This made Noah plant his Vineyard, and others busy themselves to find out all those arts, which might either make the earth fruitful, or delight and profit themselves; so that (as we find 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 universal confusion it cannot be taken away: the least concession, the least slackening of this law of propriety must be fatal; a huge licence and deluge of injuries would follow, when our experience makes it manifest, that laws in force, and all the Courts of Judicature cannot reftrein the injustice of wicked men, from gripping the just and lawful inheritance of others: kill, and possess, would be familiar. Our own advantage would be the measure of right, we should return to, or rather set up that state which is called merely natural, in which it is said every man might do what he listed, and against any man, in which every man might possess and enjoy what he would and could wrest and force from another. Those who removed the Terminall stones, or boundary marks were punishable by the Civil Law; 
w Modest. l. 2. the term. ● moto.  which certainly as many others in the twelve tables might be taken out of the Jewish Laws given by God; By whom Cursed is he that removeth the mark of his Neighbour's 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 Cannibals of Guadalupea, who yet devour not one the other; 
x Pet. Mer. Dec.  or such savages living ever upon spoil and inhuman robbery, whom no civil 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, says he, is not more worthy than such affection of mind, not to hurt or wrong any man for my own sake 
y Offic. 111. . Zenophon tells those of Sinope, that either amongst the Greeks' or Barbarians, where the market was denied him, his manner was to take what he wanted by force, yet out of necessity 
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 yields not up his own, than his who demandeth that which is another man's. If this violence were common law, and allowed, one hour of our greatest peace (if any peace could be) would be less secure, more pernicious than the plunder and sack of unruly war, which how boisterous soever it be, like rivers overswolne, returns often into its own channel, 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 firm, which at least for a while he may enjoy alone; in the other case our own 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 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 be no more thought of, Nemo tamen armatus opem a diis petere sustinuit. The fancy that there could be any continual justice in such communion, were all men's desires and appetites more alike and equal, than 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 own proportion of meat) all mankind, nay the herd of these meek ones who are only to inherit the earth, could incorporate into an universal Utopian communion and agreement; where the Lamb and the Wolf should reconcile, all dispositions and tempers, mix freely, and sympathize, would be as impossible as monstrous, as that new and more than 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 heretics 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 be founded in grace. 
jac. rex. Cont. Card. Perren. Tor. Tort. wid. Apolo. Barcl.  These have been sufficiently answered by some noble Pens of our side, and of their own. Doubtless if there were any such thing, Saint Paul either knew not of it, or forgot it in his appeal. Had this been Primitive Apostolical truth, our Saviour's blessed legacy of peace charged upon his successors with so much earnestness could not have been kept two days; the waters of baptism 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 Imperial Edicts of amortization, after it was thought fit to be restrained; Yet all were not of the same spirit, some would willingly have made this advantage of their faith, and ere faith itself could be settled, have raised those troubles upon this colour in the beginning, which perhaps had not only given a check, and stop to the happy progress of the first planters, but with the general offence and scandal of the most moderate in opposition have swallowed up all rights, divine and humane together. Farther, if this were authentic, the condition of Christians would be more hard and unhappy, then that of their infidelity before; And that of our Saviour, Seek the Kingdom of heaven first, and all things else shall be added to you, more specious than true, (and which were most horribly blasphemous) merely 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 Schools of Divines 
b Tert. Tert. 203: . For the author of both laws of nature and grace being the same, what he has established in the one, he takes not away in the other; nor doth he superinduce grace, that he may untie the bond of nature, but that he 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 settled. In the Pontificate of Gregory the seventh, the Vice god according to the stilo novo: This error began, as some of their own Historians confesses ingenuously 
c Godf. Viterb. in Hen. 1. Otho Frisi●g. l. 2. H●st. c. 35. l. 1. de gest. Frid. ez 1. . Painful discoveries to accomplish arts and sciences are highly honourable, but in these last days to start new articles of faith never heard of in the first, and purest ages, to serve the design, to extend the Papal power (called omnipotency) so fare, that that which in its own nature is evil, by it shall not be evil at all, is an intolerable wickedness, enough to make all men avoid them. And since the best arguments now for laws 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 laws; the fangles of these desperate fanatics who every day arraign these sacred tables, nor can nor will preserve them, by the just and wholesome sanction of the laws obeyed and reverenced, not by the charms of Sibyl's leaves, or Numa's shield did the Roman Common wealth advance her lofty head. Major haereditas venit unicuique 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 laws; let the inheritance be what it can be, there is more taken from the laws 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 be 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 pass the seas, nor the traveller the highway. The malice of the clown, the fraud and dark arts of the City would surround us, and what most we prise, though we want the comforts of it, no man's life could be safe a minute; nothing would be sure, nothing certain without law; There could be no commerce, no conversation amongst men, Kingdoms and states (as Sir john Davies) would be dissolved; this protects the orphan, the widow, and the stranger 
d See Sir I. Dau. Preface. : this is a pillar of fire, a glorious star guiding all men through the darkness of humane actions. I know there are those will tell us, that though this be true, these pains 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 be 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 angelical, that they may say beyond the Gnostics not only that they like not the laws 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 think me a Timon, a man hater, if I cannot believe all this; I have not found it so: I should think it more safe to trust laws than men, he who would shake off the laws, will hardly be bound by conscience. I cannot conceive otherwise, but if things were come to that, that Laws and Chancery were to be seated in every man's breast, there would be much more dishonesty than there is, our own interest would be the principal mover: There has been much foul play, much deceit under the shadow of goodness, there may be a sanctity merely of the face, that of the Pharisees was no deeper; 
Mat. 23.  They devoured widows 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 laws, (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 we look upon the fundamentals, and back to the first rise.) Next to remove those false calumnies which the rash lightness or malicious ignorance of the adversaries, (as malignant clouds betwixt the sun and us) has cast upon them.  quisque est imperitior administrationis & necessitatum publicarum tanto plus sibi arrogat in legibus interpretandis, we may say, abolendis; The more unskilful any man is of government, and the public affairs, the more will he arrogate to himself in interpreting or abolishing laws. The pride and self conceitedness 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 prevail, 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 shelves 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.  
La 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 Instit. l 1. tit. 1.  long before. The Law (says the Gloss) intends only 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, Precedents have only so much of Law, as they have of Justice 
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 Bract. l. 4. c. 4. , Force, and Law are opposites 
d In Orot. pro P. Sextio. . Horace notes the fierceness of Aebilles' thus, 
* See chap 2.137. here.  jura 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 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 says in civil society either Law or force prevails. In his judgement mere force (those are his words) is the fountain of in justice 
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 Bulla Clement. 13. , sentencing the Templars thus, Although of right and Law we cannot, yet according to the fullness of our power, we condemn the said Order. As one, although you may with force rule your country and parents, and reform things amiss, yet is it unseasonable, especially when all changes portend slaughter, flight, and what else is histile 
h Sallust. 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 Bract. l. 4. c. 4. . We may read in our old Laws. In the times of the Danish kings, right was buried in the realm (such are the words) the Laws and customs slept together; in their time, wicked will, force, and violence rather reigned then judgement in the Land 
k Ll. Edu. con●●ss c. 16 the invenri●●e murdri. . I would not be understood to speak against public 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 tie up the hand of Justice. By several Statutes, which it would be tedious to repeat, I might show what opinion our Lawmakers had of injust force which only 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 only darling of the Law: another Statute speaks thus, No man shall come before the justices, or other of the King's Ministers doing their Office with force, etc. Except &c. and upon a cry made for arms to keep the peace 
m 2 E. 3. . Power ought to follow the Law, not to go before it 
n 3 Inst. 160. . As Britton. We will that all men rather use judgement then force 
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 Fleta. l. 1. c. 29. . briton unites Peace and Law (in another place) as fully, Peace says be cannot well be without Law 
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 fear than love is given it. And as force cannot, as little can the Arbitrary will of man be Law, Laws cannot be just unless they be certain. It is the best Law (says the illustrious Viscount) which leaves least to the arbitrariness of the Judge 
r Aphorism 8. . We are Judges ourselves of our own inconstancy, how often we disagree with ourselves, what repugnancies there are daily within us, how we are carried away after any thing that is new, and which we have not at all experienced, not seldom without repentance enough, commonly our wits being but afterwits, every man is his own Phaeton, his passions and affections never so disorderly, oftener command then his reason, so that sometimes he is rather a Geryon or Chimaera 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 soul as it is clogged, taking the beginning of its understanding from the senses, it takes such impressions as are offered to them, and is not itself, rushes furiously and rashly upon things ill represented, and as ill understood, without any reflection upon Reason (which we call Judgement) or deliberation. And not seldom 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 Governors, They would sound horribly in a Judge's mouth. Therefore Rinalde protests in Machiavelli, That he would not esteem it worth much to live in that City, where men were of more power than the Laws. Bragging of our own subtleties and contrivances is nothing to the purpose to make this invalid, too often we have our ends, and designs in them, which the Law does 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 world's 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 descendants capable, never so disobedient, and unnatural should take all; yet as if every man might make Laws for his own patrimony, how lawless soever, and exploded, this perverseness will not be given over, although according to the rule of that Reverend Chief Justice upon this case, men's Policies are to be fitted to the Laws, not the Laws to their Policies; 
s Sir Hen. Hub. 134.  This writhing the Laws 
* 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 lib. 2:  A most reverend Bishop tells a Roman Adversary, (as ill satisfied with our Laws, as this State which made them was with the Treasons of his Order) That he is unworthy to be endured in a Commonwealth held with Laws, who departeth from them. 
u Tort. Tort. 145.  We read, That is lawful which the Law of the twelve Tables and the julian Law permitteth, 
w Wel. 7. si paciscat Dr etc. li. 1. D. de Just. & jur.  and in the same Civil Law we say, That is lawful which by the Laws the custom of our Ancestors and institutions is allowed. Every thing we may or can do is not lawful, 
x Cicero Philip. 13.  in which sense Ulpian interprets that clause of the Edict Quod eius Licebit. And again, that is lawful which is permitted by the Laws, to which is opposed unlawful, and that is unlawfully done, which is done against the Laws, Customs, etc. 
y de legate. l. 3.  Although the Romans, as the Spartans from whom they are borrowers had their Customs unwritten which was Law approved only by use; Quibus saepenumero, says a Civilian, Gliscentibae perniciosissime (Lacones) errabant; 
z Lexic. Ju. Ciu. tit. Lex.  Yet to the end that neither favour nor hatred might approach the tribunal, nor judgement be left to the arbitrary will of man, and that the Laws might be made certain and notorious, the greatest part of the Roman Laws were written, that no one (as is said) might do and undo, bind and lose at his pleasure; because of humane frailty, all men being liars, it is not safe to trust the Magistrate without a written rule as another. 
a ibid.  The Jewish Laws of the Decalogue by God's command were written, the Laws of the Athenians were written, by which they are said to excel those of Sparta. 
b ibid.  The Republic commends highly the publishing the twelve Tables, than (as that) the Magistrates were constrained to govern the Subjects following these Laws, so that Equity and arbitrarines had not any place. 
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 Biblioth. Li. xii.  his reason is from the absurdity that private men should meddle (for this he reserves to the supreme power) though things be amiss. He speaks not more to Magistrates in his prohibition then to any others, but generally; nor of equity, both which Bodin would seem to prove by this place. 
e Republ. L. sixieme  And although in a Court proper a Judge of Equity 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. Equity would, as more plausible, be every where cried up, like Caesar's consulship, the Law suspected in every case, as unjust (in time being lost in opinion) would wear out, and fall insensibly as useless; and in all Courts there would be nothing but equity left, which aequum & bonum, or equity is in plain terms 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 Customs and Law written: the Estates of the Country were quickly weary of this equity, they could find 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 Laws without any variation ny sa, ny la, neither here nor there, a thing quite contrary to the passions (says Bodin) of favourable Judges. 
f Vbi supra.  The mischiefs and oppressures done by Emps●n and Dudley are imputed to the Statute of King Henry the seventh, authorising to hear etc. offences committed against poenall Statutes, etc. According to discretion (not according to Law and Custom of England) which the Lord Cook seems to dislike, 
g 4. Just c. l. p. 40.  yet which is the same, discretion is (so he) thus to be described— To discern by Law what is justice. 
h ibid. 41.  When a Jury doubting the Law, has found the special matter the entry is, and upon the whole matter, etc. They pray the discretion of the Judges, or the advice and discretion of the Justices in the premises, etc. The Statute 3. of King Henry the eight of Sewers, allows to make Statutes according to their own wisdom and discretions, etc. which words are to be to be intended and interpreted according to Law and Justice. 
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 hear and determine according to Law and Custom, etc. or otherwise according to their sound discretions. That clause was against Law. 
k 6. Jac. B. C. 4. Jnsti. 245. Miser scravitus ubi jus vagum, etc.  Where Laws are written, the Magistrate knows what to command, the people to obey; where it is otherwise, the Law must necessarily be Law errand, wandering, uncertain, & unknown, (which is a miserable, nay, the most miserable slavery) and become nothing but shadow and name. Cicero makes it Justice to obey Laws. 
l de leg. 1.  Ulpian will have Antiquity to be instead of a law, or as a law, instead of a constitution, instead of consent. 
m Dictum. l. 1. sec. ult de aquae pluae arcend.  Pliny Secundus writing to Trajane, (as the manner was when the case exceeded the terms of equity resulting from the law, to have recourse to the Emperor for advice) upon the Honourary, usually given by the Buleutae or Decurions at their admittance into the Court. The Emperor answers him, (out of his religious as I may call it observation of the law) Whether all the Decurions chosen for every City of Bythinia should give it or no, generally he could not set down. But (saith he) what I think to be most safe, is to follow the law of every City. 
n Lib. 10. Epist. 13.14  To Pliny next question, whether the Censours might choose into the Senate of one City, Citizens of other Cities, yet of the same Province; The Emperor writes bacl, 
o Ibid. Epist. 116.  The authority of the law, and long custom usurped against the law, might draw thee divers ways: 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, continued, 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 says of the laws of England, Hitherto used, and approved. The Court in the Lord Cook uses that of the Emperor's Honorius and Arcadius. The usage, or manner of most faithful antiquity is to be kept, 
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 custom of our forefathers neither please nor seem right. But to make it more visible that antiquity ought to beget a reverence toward laws. Let all Histories be searched, you will meet with them wheresoever you find men civilised. 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 continual messages by Prophets the watchmen of the jews, the great wisdom did not think it fit to leave them without laws writ with the divine singer, and published by God himself, 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 Greeks' long after borrowed many things from the laws of Moses, as the Romans again from them ten of their tables, (the other themselves added, who could scarcely live twenty years without a certain law. 
q Li. 2. sec. ex actis deinde legibus. de orig jur.  Solon cotemporary with Croesus and Gyrus, is said to be the borrower, and Diodorus Siculus the authority vouched, 
r Lexi. ju. civ. lit. Lex.  who names Moses, 
s l. 2. c. 5.  but not as if he knew him much; he speaks of his laws which, says he, he pretended to be given by Abiao Jao as the Greek, whom they call God; he tells us Solon traveled for the laws of his Commonwealth; nay, and the most renowned of Greece for wisdom and learning, as Orpheus, Musaeus, Daedalus, Homer, Lycurgus, Piato, and Pythagoras; but into Egypt 
t Li. 2. c. 6. , and again Lycurgus, Plato, and Solon brought many laws taken from the Egyptians to their Commonwealths, by the most ancient friendship and mutual traffic betwixt the Athenians the most ancient of the jonians, and the Phaenicians, (from whom Linus and Orpheus are said to have received much 
u Vid. Grot. Annot. in lib. de verit. 23.38. ;) Nay by the affinity betwixt the jonians & Phaenicians, from whom the jonians had their letters, as the others theirs from the jews, whose tongue and dialect was the same with the old Hebrew 
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 jews especially near Sidon, and Tyre.) The Greeks might easily come to the knowledge of many things in the jewish laws, (as Herodotus 
x In Terpsichore. 135. .) The Phaenicians who came with Cadmus into Boeotia, brought into Greece, much learning, as also letters, the jonians having learned those letters of the Phaenicians used them with a little change. I have seen, says the Historian, at Thebes of Boeotia in the Temple of Ismenius Apollo Cadmean letters cut in certain Tripodes very like the jonians. The Egyptians had their learning from the Patriarches after Noah, chief from Abraham, Joseph, Moses, etc. who conversed with them as their posterity did after 
y Vid. Mentac Eccles. c. 3. . Before Ptolemy 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 Vt. Euseb. de p●aepar. Evang. c. 5. Hesi●d. in Theogon. Ovid. An●xagor as Epicharm. Plutarch. . The Greeks' 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 Ark, 
a V Grot. ib. sup. in li. 1.  more directly to the purpose whence the Greeks' had their Laws. The most ancient Attic Laws had their original from the Laws of Moses, as appears by the Law of killing the night-Theefe. 
b Gell. l. 20 c. 1.  By that of the Heirs Females. Thus in Terence his Phormio 
* Act. 1. Seac. 2. Exo. 21.24 Levit. 24.19, 20. de Talione in Tabulis. .  
Lex est, ut srbae, qui, qui sint genere proximi,  
jis nubant, Et illos ducere eadem haec lex jubet.  
He that will search for it (says Grotius) shall find more, as the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 from the Feast of the Tabernacles, that, that the High Priest should marry 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 memory of men approved, may be thought essential 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 implicit, 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) ready without more ado, where they do 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 Liberty of the Quodlibets, where what we please may be disputed without any imputation of slander or impiety, though never so absurd, 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 certain would be subverted, as Suarez, The reason of the Legislator cannot always be known. This I say of all Laws, 
c L. 2. de Legib. c. 14.  all have certain principles and foundamentals to be granted, not now to be disputed; humane Laws are nothing else but rules by which Justice is taught; yet why this particular way of remedy should be laid for that part, or such a rule for another mischief (for no doubt they would desire remedies for mischiefs) which might have been and as properly (for there may be several means to one end) supplied another way, would be a very vain thing now to seek into; This is the opinion of those of the Civil Law, though they cannot as (they say) give a reason of all their fiore Fathers Institutions, 
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 pains to find it in their books; It has reason everywhere (says Gentilis) 
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 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 Laws (when understood by long study; for Revelation can do nothing here) The Law (of Orphans says he) is full of grace and favour; but if any shall weigh, and interpret it, by the superficies and bark of the words, be will think but meanly of it; but whoso looks profoundly and diligently into it, he that searches to the bonc and marrow, will judge it to be made by the wisest counsel, worthy singular admiration. 
g Biblioth. l. xii.  The age of the Law of the Land, shows its reasonableness; Curtius did not speak at random where he says, nothing can be lasting which is not propped up by reason; the ground of the Law is as Saint Germane 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 Do right according as Law and Reason demandeth, the fourth of Edward the third hath Right and Reason. The mischief or danger attending and going along with this prying and disquisition into the Laws, is commonly a change of the Laws, which is followed by a change of manners at least if that be all. Those busy Libertines, Extravagants, New-fangled Fantastics, whose conceptions are so admirable, and who can so easily overdo that which by the testimonies of all orders of Englishmen, of all ages (as I shall show in my next Chapters) has been concluded to be most excellent, would serve their Country better, and show more care of its quiet and peace, if they would obey these Laws already settled, then by troubling themselves & others in that which very likely neither themselves nor others shall be happy 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 rabble ignobile vulgus, either in the City or Country have their Trades, their Husbandry to attend to busy themselves in, those are their Arts, Laws, and Government, & policy are above them, Nan est consilium in vulgo, Mount Sinai where 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 near it. If this sweet and beautiful garden be overgrown with a few weeds, it would be no discretion to turn Herds of unclean Swine in, to root them out. Some Chariotiers drive not easily, let the House be fowl as Augeus' Stables, we should not open the floodgates of the deep; strike like Aeolus the den of the Winds, and pray in aid of the storms and tempests, and the Sea itself to cleanse it, rather than the precious Pallas of their brains should not be brought forth; Some new Lusinia or Utopia might be found out, where with more innocence their new Commonwealth might be set up. He that will judge, says Aristotle, 
h 2 Top.  It is better to judge according to the Laws, than out of a man's own knowledge and sentence, (although a man out of knowledge may see clearly) yet I may say the Laws have more eyes than Argus, they see with the eyes of many ages, with the eyes of all the most noble, most wise, & most learned Counsellors of State, and Judges of all the most judicious, pious, and peaceable Citizens of this our Country; The ignorance of the Judge is the calamity of the innocent, 
i 2 Just. 30  So it must be here of the Law: I speak not of polishing, refining, or ading to the Laws to complete them, where they are not full, & may be overreached by the cunning of injust men, had not this been often done, the Laws 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 repair. Aristotle thought that Laws received were not to be changed, although there were some incommodiousness in in them. 
k Pol. 2.  And Cleon speaketh thus in Thucydides his sense and words, A City with the worst Laws , is better than one with good Laws not binding, (or as I may say, subject to to the capricious humours of every peevish, shallow tradesman, of every paltry Chafferer for small Wares) and a plain wit with modesty, is more profitable to the government then arrogant dexterity. 
l Thucyd. l. 3.  In the gloss upon Justinians Institutions; to set up Laws and pluck them down is called a most pernicious custom, in many places as there declared so by Plato and Demosthenes 
m f. 28.  The Lord Cook his judgement of the Laws of England is; That having been used, and approved from time to time, by men of most singular wisdom, understanding, and experience to be good and profitable for the Commonwealth (as is there implied) they are not to be changed; 
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 Counsel do, which the Lord Cook 
o 2 Just. 98.  collects of them out of the 26 Epistle of Robert Bishop of Lincoln, to the Archbishop of Canterbury) to legitimate the antenate or bastard eigne borne before marriage, with this reply in these terms; And all the Earls and Barons, with one voice answered, That they will not change the Laws of England which hitherto are used and approved, 
p Stat. Mert c. 9  what is less than change? the same Lord Cook likes not correction of the Laws; It is an old rule in Policy and Law, (so he) that correction of Law be avoided, 
q 4. rep. Pres.  which some will think is overdone a strain too high, yet it has its reason: Laws are the walls of Cities to be defended as walls, & no caution can be too much; like the Sovereign 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 conveyance from God himself, pronounced with his own voice, or delivered by an Angel to us; One word Liberty, specious Liberty, more admired then understood, (with which of late Laws are idly imagined inconsistent) were enough to cancel and blot them all: I am unwilling to show here how much and often, but how seldom 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 Laws 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 L. 18. c. 2.  agreed with the Pharises in other things, but on fire with the most constant Love of Liberty; they believe God is only to be taken for their Lord and Prince, and will more easily endure the most exquisite kinds of torments, together with the most dear to them, then to call any mortal Lord. If it might have been 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 Sons of Israel. There are no such words, nor any to that sense, in any of the received languages 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉? are the Greek words, as our English amongst the Daughters, and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the place signifies, not one who pays Tribute, but one initiated in the mysteries of the Pagans, by them called sacred; 
s Orig. Eccl. Tom. 1.1317.  yet had this Heretic, as all others ever brag of it, Scripture authority from this Book; 
t Deut. 6.  and with the words, Thou shalt fear the Lord thy God, and him only 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 1 Sam. 17  The man who killeth (Goliath) the King will make his father's house free in Israel. This the Georim, and Epimicti, the Posterity of the Canaanites, and of those which came up with them from Egypt did not only pay, but the Israelites also, as is clear by that text, and this, That Solomon made Jeroboam ruler over all the tribute, or burden of the house of Joseph. 
w 1 Reg. 11  As others were over the rest of the Tribes, Adomiram being said generally to be over the Tribute. 
x c. 4.6.  Though Judas inturning the people after him and his Liberty, as it is called, with his Sons perished, yet the dregs of his sedition were gathered 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 dear Liberty, they fall upon their own swords. 
y Joseph l. 7. c. 28.  The Jews of late have made some change with their borderers, with their next marchers, this as before is become Anabaptism now, of which some of those of Rome, who will be any thing rather than stand out, where they may do mischief fall not much shorter. Christ, as Cardinal Bellarmine, freed his Apostles from all earthly subjection; So that therefore they were subject of fact, not of right. To pass by all these, there is not that fullness in the word Liberty which is expected. Cicero makes it a power to live as we list, 
z In Paradox.  which cannot be in any government or society, nor in any the most retired exile of ourselves 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 Justin. J●stit. 31. , unless by force, or Law, he be forbidden, which (as the gloss renders it) is a power given by nature, to do what we will, unless one more potent hinder us. As Scipio hindered Hannibal, yet was Hannibal free still, Or that the civil Law of our country forbidden us 
b Et libertas. . Which last is explained thus: Cicero sees his destruction contrived by Clodius, and hanging over his head, he desires to preserve himself by prevention, and to kill Clodius, that he may free himself from the danger, but dares not (as I may say either reverencing the Laws as a good and a just man, for he is injust who does 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 subjoined in the definition, Unless any thing be forbidden by the Law 
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 enjoined by St. Paul strictly to obey 
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 men's persons are free, and their estates (in which they have a propriety) unless in such cases whereby their public 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 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 war undertaken by the public 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 enjoyed under it, all are bound to, is Liberty, as the Magna Charta 
f c 29. . No Freeman (so here is this liberty) shall be taken, or imprisoned, or disseised of his freehold, liberties or free Customs, nor be outlawed, banished, nor in any manner destroyed, etc. 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 Tit. of Honour 1. edit. 344.  This chapter of the Magna Charta is partly repeated in a later Statute 
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, Process by Writ Original, and course of the Law; another Statute recites it, and instead of the words Law of the Land, puts in Process of the Law, as equivalent, and Synonyma, signifying the same thing 
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 Process and Writ Original according to the old Law of the Land 
k 42. E. 3.3. . So we see the free man hemmed in with all his liberties and free customs, if he abuse them, if he be found guilty of a public 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 wills 
l c. 14. , That no Freeman be amerced for a small offence, but according to the manner of that offence, etc. The Statute of Merton provides 
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, etc. 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 than 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 years 
n Mach. Hist. 57.67 69.99 90.115.166.171.237. , the proscriptions and slaughter of the best Citizens and the pangs and throws 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, Sallust in his description of the Aborigines gives the best character of these lawless libertines in these words, They were a kind of savage wild men, without Laws, without command, or government; free and lose, 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 only Cato's wise and just, or honest man be at liberty, and all wicked men slaves, and villains 
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 wind, 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 Laws which are the heart, and vital parts in a Government are practised upon, we idly and fond charge destiny, and the period and ruin of things upon fatal families, or boundary years, when the truest cause of the calamity is our own unworthy lightness. The reason why the Commonwealth of Sicyon survived the policy and Estates of all Greece besides, is made this; in seven hundred and forty years 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 Laws brought down to Magna Charta, and there settled. The fundamentals are Saxon-English. The English-Norman Laws since, because of new offences, of Tenors.  
AS wisdom goes, and must go, it has ever been easier to gain the reputation of wisdom, then of goodness. The good man was he who loved his Country more than himself, who obeyed and reverenced the Laws for Justice sake, and if possibly, would not have outlived them, rather just then shiftingly politic. 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 brass, in the most famous place of the City, a piece of Lysippus his workmanship 
p Diog. lac. . Here though Caesar had won the field, Caeto was the Conqueror, and might well say, He had ever been more puissant than Caesar in right and justice 
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, etc.  
How more illustrious is that by which is signified, 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 go false, counter, and beyond what the Laws command 
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 Liv. l. 24. . It is memorable what a Persian Colonel speaks to Themistoeles of Laws, Stranger my friend, says he, The Laws, and Customs 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 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 show 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 ourselves to bespeak and worship an unknown Goddess (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 Panegyric could not do him full right, as I cannot think he did, what can be said of these Laws, which had more than twenty Trajan's 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 show 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 supplied 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 1. Inst. 11  (besides which there are reasonable customs, etc.) The Common Law excelleth the Statute Laws, and may control Statutes 
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 Cook) they be against common right, or reason, repugnant, or impossible 
x Sir l. Dau. Pref. r. 8.118. : Dr. Cowel a Civilian yet very knowing in the Common Law, says, It is derived from the Law of nature, and of Nations, as well as any other Law, whatsoever, consentaneous to Justice and reason 
y Inst. Jur. Anglic. 25. Dau. rep.. 30. Postrat. . As Moyle, We rule the Law according to the ancient course 
z 33. H. 6.8. . And as Ashton there 
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 Use 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 find it 
b E. 5. , and Markham a chief Justice 
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 precedents be sufficient for us, etc. And Ascue. Such a Charter hath been allowable in the time of our predecessors who were as sage, and learned as we be 
d 37. H 6.22. 4 Inst. 165 Dact. 17. , all Commissions of Justice use to run, according to Law and Custom of England, as of Oyer and Terminer, of Goal delivery, of the peace, etc. The Writs run, To take that Assize, or do that, etc. according to Law and custom 
e Nat. Brev 186.118, etc. , (there is Custom of the manner 
f Na. B. 3. , Custom of the City 
g ibid. 22. ) as Sir john Davies in his Preface to his Reports, long experience, and many trials of what was best for the Commonwealth begot the Common Law. This Law, as the Spartan 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 Romans called their unwritten Law Custom, Custom (so they) approved by the manners of those who use it, obtaineth the force of a Law written 
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 Vbi sup. ; this is matter of fact, and consisteth in use and practise only, nor can it be created by Charter or Parliament. for as the same Sir john Davies 
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 laws made (still he speaks) either by Edicts of Princes, or Counsels of estates, are imposed upon the subject before any trial 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 custom never bindeth till it hath been tried and approved time out of mind, during which no inconvenience did arise, for if it had been found inconvenient, it had been used no longer, but had been interrupted, and so had lost the virtue of a Law: This is declared to be so by the Lords and Commons in Parliament, in the 25 year 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 customs which have been usitatae & approbatae, used and approved, 
m c. 9 Stat. Mert.  make the Common law. The statute called dictum de Kenelworth, speaks thus, the party convict shall have judgement according to the custom of the land. 
n 57 Hen. 3. c. 25.  The 27 of King Edw. the first of Fines.— Contrary to the laws of our Realm of ancient time used. The (34 of the same King confirms to all Clerks and Laymen their laws (liberties and free customs as largely and wholly as they have used to have the same, at any time when they had them best; 
o c. 4.  law and custom of the Realm are made the same. 
p 1. E. 2.34. E. 3.  Abjuration is called custom of the Realm. 
q 9 E. 2. c. 10.  The 25 of King Edward the third says, According to be laws of the land of old time used. 
r C. 2.  The title of the 27 of this King speaks in maintenance of the laws and usages; the Statute 36 of the same King,— Laws, Customs, and Statutes. 
s C. 15.  Statute 42. according to the old law. 
t C. 3.  In the time of Richard the second, Law and usage are the same. 
u 1 R. 2. c. 2.  It would be tedious to heap up more of this kind; I will only add 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 Grace's realm, etc. hath been, and is free, from subjection to any man's laws, but only to such as have been devised, made, and ordained within this realm 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 realm have taken at their free liberty by their own consent to be used amongst them, and have bound themselves by long use to the observance of the same, etc. as to the customed and ancient laws of this realm, originally established as laws of the same, by the said sufferance, consents, and custom, and none otherwise. 
w 25. Hen. 8. c. 21.  Now if what the people of England have taken up out of long use, custom and consent be not good, agreeable, and convenient after so much and so long trial, 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 laws they had; and if they be good, agreeable, and convenient, they would appear the most foolish of all people by their change. No laws ever were, or can be made with more equity than these, to which besides use, and custom, and experience, free liberty, and consent of those who were to observe them gave life. There is custom of Courts which is law too, part of the Common law; 
x Ploughed. Com. 320.  as the Statute of Kenelworth.— If any man shall take revenge because of the late stirs, be shall be punished according to the custom of the Court, etc. 
y C. 26.  Six times is the Common law called by Littleton common right; It is sometimes called right, sometimes justice. 
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 be well kept in all points, and that common right be done to all, as well to poor as rich, etc. later statutes have— Justice, and right, 
a 1. R. 2. c. 2.  full justice, and right, 
b 2. H. 4.1.  good justice, and even right. 
c 7. H. 4. c. 1.  Common droiture in a statute 
d West. 1. c. 1.  is rendered, Justice according to the law and custom of England, 
e 2 Just. 161.  called common right, (as the Lord Cook Because the common law is the best, and most common birthright the Subject hath, for the safeguard and defence, not only of goods, lands, and revenues, but of his wife and children, body, life, and fame also. 
f 1 Just. 142 2 Just. 56.  That which is called common right in the second of King Edward the third. 
g C. 8.  In the first of that King 
h C. 14.  is called common law; Not only as Fortescue, do the laws of England favour liberty. 
i C. 42.  But they are notioned by the word. The word liberties in Magna Charta, signify the laws; 
k C. 1.29.  and in that respect is the great charter called the charter of the liberties. 
l 2 Just. 47  The Statute de Tallagio non concedendo, has these words,— That all the Clerks and Laymen of our realm, have all their laws, liberties, and free customs, etc. 
m C. 4.  In the 38 of Edward the third, the Laws are called Franchises, in the old Books the great Charter (the fountain of all our 
* Just. 81.  Foundamentall Laws) is called the Charter of Franchises, the common Liberty, the Liberties of England, 
n Bract. 291 414. Pleta. l. 2. c. 48 Brit. 178  because (so the Lord Cook) they make frecmen. 
o 1 Jnst. 1  The customs of England bring a freedom with them; therefore in Magna Charta are they called Free Customs, 
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 freemen is administered; 
q Mich. 17. Epist. 1. in come. berot. 221. 2. 2 Jnst. 4.  the Law than is Liberty itself, Liberty and Law are convertible, nor is this Liberty titular only, 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 deceased &c. but by lawful 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 disherited, nor brought to death, without being brought to answer by due process of Law, which is as after in that Petition of right either Customs of England, or Acts of Parliament. 
r 3 Car. Reg  The Lord Chancellors oath is thus, That he shall do right to all manner of people, poor and rich, according to the laws and usages of the Realm: 
s 10. R. 2. rot. Parl. 8.  The Barons of the Exchequer swear, no man's right to disturb, let or respite, contrary to the laws of the land, 
t 4. Jnsti: 109.  which must be meant of the known, 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 custom of England. 
u 2. Jnsti. 51.  The illustrious Viscount of St Alban, amongst his Aphorisms of universal Justice, has this, Let no Court deal in cases capital (our Laws say Civil too) but out of a known and certain law; God denounced death, than he inflicted it; nor is any man's life to be taken away, who knew not first he had sinned against it. 
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 trial, nor are possessors of the worst faith, thrown out without the hand of the Law, only against those who attempt to subvert or weaken the Laws, there is a Writ to the Sheriff in nature of a Commission, to take the impugners and to bring them (as the Register) to the Gaol of Newgate. 
x Regist. 64 2. Justi. 53.  This, as the Lord Cook, 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 Laws, deserves not the benefit of any. Amongst the articles exhibited to King Henry the eight, against Cardinal Wolsey, he is charged with oppression in imprisoning Sir John Stanley, and forcing him to release a farm taken by Covent Seal, of the Abbot of Chester, etc. (as the words) by his power and might; 
y Artic. 38.  And that he threatened the Judges to make them defer judgement: 
z Artic. 39  that he granted many Injunctions, the parties not called, nor any bill put in, by which divers were cast out of their possessions of their Lands and Tenements. 
a Artic. 21.  The close was, That by his cruelty, iniquity, and partiality, he hath subverted the due course and order of the laws. His Indictment went higher, and accused him, That he intended the most ancient laws of England wholly to subvert & weaken, and this whole Realm of England, and the people of the same, to the Laws Imperial, commonly called the Civil Laws, and to their Canons, for ever to subjugated, etc. 
b Mich. 21. H. 8. Coram Rege.  Now although the Civil 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 trial 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 seldom doth any Nation, willingly submit to, or welcome the Customs and Laws of another, which they have not been acquainted with, and our Judges who will not (in our Books) part with one of its Maxims; 
c 2. Jnst it. 210.  would not have fallen down before the shrive of any unknown Themis, and have offered up the whole tables. It were no hard matter to heap up testimonies, 
Vid. chap. 3,  if some would think it lawful to trust men in their own arts or professions, and can it not but be more reasonable, that such should be heard in the defensive, then that those who profess full Hostility, bringing with them only mistakes of their own prejudice, should sit Judges of the trial which is in their own cause, and if thus far the reins be given to turbulent desperate spirits, every thing how sacred soever may be arraigned at these tribunals, the articles of our faith will quickly totter, nor will any principle be safe: This descent will be fatal, there being no stay in the precipice, the bottom only 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 ancient time, 
d. 27. E. 1.  of old time used, 
e 25. E. ●.  the old law, 
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 follows in order to speak something of the Antiquity of this law. 
The Antiquity of the Law.  But as the beginnings of things sometimes are rather guessed at then known; it is no wonder that there should be no general agreement here of opinions: some will make the Law a Colossus of the Sun, knocking the Stars with its head, more ancient than 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 rely upon the authority of a Chancellor or rather chief Justice in the time of King Henry the sixth, upon which the 
* r. 2. Epi. r. 6. Epist.  antiquity should be raised, was less than that of Aventine, who professed History, where after a prodigious link of Germane Kings, before the Arcadian Moon, he will needs bring his  to the Wars of Troy, which he proves out of the laws of Charles the 4. (who lived less than two hundred year before Aventine, and some three hundred years before us) from which he is peremptory there must be no appeal, 
g Boicar. Hist. 49.  for a great Lawyer (continually employed in the public affairs, or in his study where his many volumes upon the law show the whole man might well be taken up,) to fail in a piece of History, if he may justly be said to fail this way, who only trusted another who was careless. It is no blemish, such as can deserve the censorian rod of our Critics, besides all men love to consecrate their originals— This is allowed to antiquity (says Livy) mixing things humane with divine, to make the beginnings of Cities more majestic, and we may say as he doth of his Rome, of our Laws, if it be lawful to canonize any, to carry them up to Heaven, or fetch them down from thence, that glory alone is due (though it needs not) to the most sacred laws of the land. Sir John Fortescue his words are to this effect, That if the laws of England had not been most excellent, the Romans (who cry up their Civil Law) Saxons, Danes, or Normans, had altered them; 
h de lg. Ang l. c. 17.  by which our Laws must be British at least, and our Saxon Fathers who beat the Britons or Welsh, out of their own inheritance into the parts they now inhabit, must be supposed farther (which is strange) to rob them of their Laws, as men who had not wit nor reason to keep peaceably what they had gotten, without the help of their policy and order, whom they had overcome. Caesar if he did but first show Brittannie to the world, did that as Eutropius. 
i L. 6.  He made the Britons 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 L. 4.  Brittanny was not known to be an Island till the coming of Julius Agricola Proprator hither 
l 39.66.  as Suetonious of Caesar, aggressus Britannos ignototantea, none of these commend their Civility, 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 Strabo ubi sup.  Inoulti omnes, says Mela, whom no long peace says Tacitus since Claudius who was here in person, & disarmed them (about 150 years after Caesar) had softened, like the Gauls, but more simple and barbarous; Woods were their Cities, their Cattle and themselves lodged under one roof. 
n Strabo ubi supra.  Heredian who writes thus of the Britons, lived and wrote probably 240 years at least after the Incarnation, and about 50 years after King Lucius or more; So that it would be very strange that such laws as ours which yield not to the best in Christendom for goodness, should have such a Cradle; It would be inquired what laws the wild Rovers of Laboradora or Cafariae have set forth, as little civilised, and living much after the rate. It is scarce possible too out of Tacitus, that there could be any Common Law amongst them; heretofore says he, they were governed by Kings, now they are drawn by petty Princes, into partialities and factions, etc. they have no common counsel together, seldom it chanceth that two or three States meet, and concur to repulse the common danger. 
o Invi ta Jul. Agri.  The first Laws we find here in use, were the Civil Laws 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 years after Eleutherius) to Lucius, or Liever Maur, been no forged piece, which not only in the unhappiness of the Synchronisme, or mistake in the years 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 be: 
p D. Hen. Spelm Council 35.36.  yet what needs King Lucius to send for the Imperial Roman Laws, which were settled here before, and no question only in use here then. Liever Maur being no free King, nor of the whole, but of the Joeni alone, called after the Kingdom of the Eastangles, now Norfolk and Suffolk, merely 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 near all Britain, the Roman Laws prevailed even amongst the brigants, those of Yorkshire North at York, another way amongst the Silureses, 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, says, Strange noises were heard in the Courts, 
q Ann. l. 4.  as Dio. In the Court was heard a barbarous murmur with much laughter, 
r Die l. 62.  and Eutropius says, a strange Colony is brought to Camolodunum with aband of veterane soldiers, to be an aid against the rebellious, and imbue the confederates, to the offices or duties of the Laws. 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 H●●od. l. 3.  that he might look after the business of the Laws, of Justice, and the civil affairs. After the death of Liever Maur, so famous was that Tribunal of the Romans at York that Papinian the most renowned Civilian of his own, or many ages, sat Judge there: There did the Emperor Severus and Antonine set forth the Imperial Constitution, called De rerum venditione, 
t Cod. l. 3. tit. 32  as the most knowing Knight has observed. 
u D Spelm. ubi sup.  Agricola as Tacitus in his life took the noble men's sons, and instructed them in the liberal Sciences, preferring the wits of the Britain's before the Students of the Gauls, as being now curious to attain the eloquence of the Roman language, whereas they lately rejected the speech; a likeness of our Laws with those of the Britain's is endeavoured to be proved by that only place in Caesar's Commentaries, 
w L. 6.  where it is said, (but of the other Gauls, not of the druids, whose employment was about things divine, 
x Ibid.  sacrifices public 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. Caesar's words are, The husbands (amongst the Gauls, which is no part of the Druids 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 Gaul) dies, his kinsmen meet, and if there be any suspicion of the death, inqurie into it, etc. and if it be found, kill the wife, excruciated with fire, and all torments. Caesar where he speaks of the Britain's, shows strange marriages, 
y Lib. 5.  Ten or twelve of them (says he) have common wives amongst them, especially brothers with brothers, and parents with their children. But many hundreds of years since all this, the Britain's were very barbarous, and rude, so that he who shall read the Laws of Hoel Dha, or the good, 
z In Sr. H. Spel. Counsels.  near one thousand years since Caesar, will have little reason to think our Common Law ran from any such fountain; and it seems the old Laws and Customs of this people were far worse, and more rude yet, all which laws and uses (as the Proem) at Guyn upon Taff yn deeved, or at Twy guyn artaff, he abolished, 
a Gloss. D. Spelm. tit. lex. Hoel. etc. è Proaem legum.  and gave new laws to his Britain's from the giver's name called the Laws 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 Laws, by his words there makes it clear, that the Laws of England and of Wales could not be the same; for so there had been no change. The words are, The Laws and Customs of those parts hitherto used, we have caused to be recited before us, and the Barons of our Realm, which having diligently heard, and fully understood (as it is fit were laws worse than those, there should be full understanding ere a change) certain of them by the counsel of our Barons foresaid we have blotted out, certain we have suffered, and certain corrected. 
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 Laws, Ordinances, and Statutes of this Realm of England for ever, and none othr Laws, O rdinances, nor Statutes, shall be had, used, practised, and executed in the said Country and Dominion of Wales, etc. 
c 27 H. 8. c. 26.  The Saxons as M. Daniel, made such a subversion of State as is seldom 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 Customs came to pass over unto us from the Britain's, nor had our Ancestors any thing from them but their Country. 
d Hist. 9  But the Author of the patches to the Laws 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, says he— which was builded a long while ago, like and after the manner, and in memory of old great Troy, and to this day it containeth in itself the Laws, Rights, Dignities, Liberties, and Royal Customs of old great Troy, 
e Ll. S. Ed. c. 35.  etc. which like the Phoenix lives in its ashes, and here (such is the kindness of some of our acquaint Authors) has overcome Greece in the grave, being more fruitful in noble Colonies then her Enemy, so that it must be a very fair descent, where the pedigree is brought down from old great Troy. As of old the Greek Laws, so since the Germane Nations have overflown Europe, now are the Germane Institutions every where received and in force, says Grotius. 
f De jure belli. etc. 133.  As the Lombard's, Burgundians, Franks, Swevians, and Vandals, and other the brothers and kinsmen of the Saxons seated themselves in Italy, France, and Spain, and spread their Laws where they over-ran, upon no other Title but that of the Sword; so did the Jutes, Angles, and Saxons plant themselves, and the customs 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 Country, they make a league with the Picts, the public enemies, destroying those whom they were called in to protect, in which manner they settled themselves, leaving none of those amongst them, but such as were content with slavery: Their own Countryman venerable Bede, borne 227. years after their landing, tells us, (comparing them to the Chaldeans, whom I choose to refer him to, who would know more) 
g Bede hist. l. 1. c. 15. p. 59  their Laws and Language, though themselves have suffered by their own 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 main to this day. These Nations so poured out of Germany retaining the rites and terms of their own Countries, all of the same manners and tongue. It cometh to pass (as the most knowing 
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 laws, 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 laws, 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 find 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 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, rend, tribute, etc. from the Saxon geld, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a bill, schedule, etc. and many more which Meursius in his Graeco, barbara, has collected; the most ancient laws of all 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 year of Pharamont king of the German Franks 105 years before Justinian the Emperor, 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 year 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 Germane libraries like our Doomsday 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 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, etc. These Customs went with Pharamont eight years after into France, then after those of the western Goths in Spain, the Burgundian Laws, the laws called Alemaaic, Boian, and Frank, other than 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 Lombard's, who as they were a Colony of the Germane Saxons, so are their laws full of their and our Customs, agreeing together in many things yet 
k Dn. Spel. gloss. 440. . When Austin the Monk was sent hither by Gregory the great to convert the Saxons in the year 597. (Not one hundred and fifty years after the entrance of the Saxons) he was commanded by him, to take interpreters with him out of France in his way 
l Bede l. 1.25. , and it was unlikely while the Saxons yet kept the language of their Countrymen, they should have forgot their Customs, contrary to the manner of all the other Tribes of that Nation. The first Saxon laws 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 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 policy, and order ever since observed, called by the book of Ramsey 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, etc. to establish jurisdiction in every of them 
n Archaolog 15. ; again it is said, he gave not only laws, but Magistrates, Shires, Hundreds; etc. which (so one place speaks) we have often observed 
o Gloss. tit. Ll. Angl. jugulph. . Though no man can honour the sacred memory of this most glorious Prince more than myself, and I know viros magnos sequi est pena sapere, yet I cannot believe this. Malmesbury speaks only of the Hundreds and tithings, the invention of which he attributes to this King 
p de Gest. reg. c. 4. . He might (which the Glossary is once contented with) review the Laws of Aethelbert, Ina, and Offa; transcribe and insert whatsoever was worthy into his laws, 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 add much, and polish what he found, being never idle, ever employed for the good of his people, either in his Courts, and Counsels of State, or in the head of his Army. But he that looks upon the laws 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 alfred's great Grandfather was born, there being near 200 years betwixt these two kings 
q Fasti Savil.  Not to recite the laws upon offences, we read in the laws of King Ine, of the Shire, the Alderman, and the King's Alderman. One law speaks thus: If any man shall let a thief escape, or hid the theft, etc. If he be an Alderman þolige hisscire he shall forfeit his Shire, &c 
r Ll. Ina c. 36. . Another— If any man shall demand Justice or right before the Shireman (the Earl) or other Judge 
s c. 8. u.c. 6.51.  etc. The Proem. & mid eallum minum ealder mannum and with all my Aldermen the chapter of breach of the peace— In the King's Town, Alderman's Town, Kings Thames Town, etc. 
t c. 46.  Thorold a Benefactor to Crowland Abbey 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 Sheriff of Lincoln 
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 York converted to the Faith Blecca with his family Line coal ere szre geƿefan 
w Bede l. ●. c. 16. l. 5. c. 4. p. 375. . The Gerefe of Lincoln and elsewhere says he, Hanwald the gesiþ (a word rendered comes) with his geref with his Sheriff Aethelwine betrayed King Oswine 
x l 3. c. 14. l. 4.22. l. 5. c. 4 5. . Hundreds and tithings are not named in the Laws of the Kings, Ina or Aelfred. In King Ina's Laws pledges borgas are named, by which probably we may think tithings 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, etc. if he have no pledges 
y Ll. Ina. c. 21. Ll Edge 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 called 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 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.  
— Fancies non omnibus una,  
Nec diversa tamen qualem dicet esse sororum.  
Yet King Cnut as much resemblance as there was, liked it not, out of all these laws he composed one Common Law which King Edward the Confessor observed 
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 laws of Edward to this day 
a Ranulph, cester. l. 1. c. 550. Hou. 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 abyss, and delivered to be kept as his own. As another, he was the lawful restorer of the English laws 
b Gemetic. l. 6. c 9  all this may be, he restored them, and recalled them from the deep Abyss, they might be forgotten (dedicated as the Paraphrast speaks to oblivion wholly, but not as he adds 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 customs, such as they brought with them out of Germany, which (as since) lived, and were preserved in the memory of the people, 
c V c. 1. sup. Gless. D. Spelm. tit. Lex Lomb.  as well as their laws written. After all this, as we find in the laws of William the I. there was a difference in the estimation, of men offending according to the customs of Provinces. 
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, etc. He that will look into the Saxon laws, will find as clearly as can be, considering the distance made by so much time, which is but a distance of words, the fundamental stones of the building, he shall find freedom enough, and peace every where provided for, (in the words of those Laws) the peace of God, of the Church, of Religion, etc. Laws concerning Tithes and Church-rights, &c concerning Sacrilege, false Witness, Adultery, Incest, Fornication, marrying a woman by force, Perjury, Slander, Usury, Murder, Homicide where it is Chancemedly, Robbery, Theft, of the Fly-man or Thief 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, repair of Castles, Towns, Bridges, Highways, 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 Appeals when Justice was denied in the Hundred, or too rigorously administered, trespasses, wrongs, battery, affraies, incendiaries, the wife of a thief, pledges of good behaviour, amercement of Towns 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 loss of Liberty, of a Slave by whipping. The reason of which M. Lambard makes, because of the rareness of offences then; 
See Ch. 3  fight in the King's 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 capital, could not be expiated with money. The Jury of twelve men is denied to be more ancient than the Norman Conquest by M. Daniel, 
In Will. 1.  and Polydore Virgil, but with a great deal of bitter vehemence by the last, who says, 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 John's Charter alone confutes, or that the Hotspur Lord Percy was taken alive at the battle of Shrewesbury, and lost his head by the axe, which are his relations. That this Trial is of English Saxon descent, is manifest by the Laws of King Etheldred, ordained at Wanating, 
e C. 4.  which speak thus: In all Hundeeds let Assemblies be, and twelve Freemen of the most ancient together, cùm praeposito, 
f Ll. Ed. Sen. c. 5.11.  in Saxon gerefa, with the Reeve of the Handred, shall swear not to condemn the innocent, nor absolve the guilty. 
g Lamb. in verbo Centur. D. 5 ●el. in Jura●a. Vid. C●asultum de Mantic. 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 says, the Confessor gave Laws to the Normans when he was amongst them, and in the first Chapter de Appella, he mentions the Custom of England, to prove things by the credence of twelve men of the Neighbours or Visne. After all the ill Customs (so much decried in the Baron's wars) taken away, and Sr. Edward's Laws 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 D. Spelm. gless. verb. in Quaest. Vid. Gesta de villa novilliaco post appendic. ad Fledvardum.  This Law of S. Edward I think is above all exception, and full to the thing— by which after a prohibition that no man buy a live beast, etc. without pledges, and good witnesses— is said, and if any man buy otherwise, etc. after the Justice shall inquire by Lagemen— (legal men) and by the best men of the Borough, Town, or Hundred, etc. 
i C. 38.  This trifler Polydore reviles our inquests by twelve as devised (so he) to oppress men under the show of equity; and the Canonizers of Gunpowder Garnet, calumniate it as upstart and unjust. (Of these hereafter.) For Polydore, says the excellent Sir Henry Savil, he was an Italian, a stranger, not conversant in our Commonwealth, neither of much judgement nor wit, 
k Epist. ad Eliz. Reg.  snatching at things, and often times setting down what is false for the true. M. Selden bids all Readers in these things, or such like, to take heed of Polydore, and his fellows; for (says he, and no man can say it better) out of carelessness being deceived, he attributes many things to William as the Author, which it is most certain we own to the most ancient times of the Saxon Empire, etc. 
l Notae in Ead. 194  Courts of Justice were erected before the Normans were heard of, as the Halmot or Court Baron. 
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 seldom 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 (says M. Lambard) and as it may by Law, then should the peace of the Land be better maintained than it is. 
n Office of Constab. 9  this Mr. Daniel affirms. 
o H●st. 38.  By the due execution of this Law, as the Lord Cook, such peace was universally holden within this Realm, 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, etc. 
p 2 Inst. 35  few Suits, or causes of Suits must needs then be. The Hundred which was ten tithings, a Germany Institution, 
q Gapit. Car. Calui apud siluacum.  where every man was bound to attend, in the North called Wapentake, than the Trything, Thryhing, or Leet, the Jurisdiction of which extended over the third part of a Province, containing three or four Hundreds. 
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 week, where the Sheriff was to decide civil and predial causes, and every sfraec (as there) plea, was to have an end at the day: 
s Ll. Ed. sen. c. 11.  The supreme Provincial Court was the Sciregemot, or Shire Court, the same which now we call the Sheriff's turn, kept twice the year, 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 Ll. Eadg. c. 5. ll. Aethelst. m. s. c. 20. Il. Cnuti. c. 7 ●. p. 2.  here Causes Civil and Criminal were determined. This Court and its Jurisdiction was very ancient, being famous, and used in the same manner amongst the Franks and Lombard's, as may be seen by their laws. 
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 Ecclesiastical 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 speaks) who have lands in the Bishopric of Remigius, Bishop of Lincoln, (though there only the Hundred be named) 
w Not in eadm. 167.  yet there is added— The Episcopal laws which were not well kept nor according to precepts of holy Canons, etc. and (as this is recited elsewhere) They shall bring nothing to the Hundreds, or Judgement of secular men, 
x M. S tab. Rob. Winch. Arch. Cant. in eadm. 168.  and every secular Court is alike forbidden to Churchmen by the Canons. In one or other of these Courts, in the less or greater, all causes were to be determined at men's homes, and at their own 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 appeals be to the Palace, to the King there, (whose Court is called the High Court of Justice for law and equity) 
y Ll. Aelfr. c. 38. Ll. Edg. c. 2.11. Cnuti. c. 16.  after the manner of the ancient Jewish Commonwealth, a course observed says the most knowing Knight, all Europe over. 
z Gloss. tit. Cancellaria.  Our ancient Kings (as he) swore before the Realm and the Priesthood, right Judgement to do in the Realm, and Justice to keep by counsel of the Peers of the Realm. 
a Ll. Edu. Con. c. 16.  viz. (In this Court) every City and Borough had their Courts, the Burgmote kept thrice the year, the Wardmote, the Husting, the most ancient and supreme Court of the City of London, is of Saxon extract, which every Monday used to be held, now on Tuesday, yet does the stile still say held on Monday, Lincoln, Winchester, York and Shepey have their Hustings, it held Pleas as it does of things real and mixed; Judges there were too in the manner we find 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 King's Alderman (as the most knowing Knight thinks) 
b Gloss. tit. Aldermannus.  like the Missi, 
c In Capit. Gar. m. & Franc. ll.  as our Justices in Eire, or of Assize. The Alderman of the County jesse then the Earl, but equal with the Bishop, which three sat together in the County, the Earl was to take care of the Commonwealth, the Bishop of the Church, the Alderman of the County, to declare and expound the law. 
c Gloss. ibid.  (Besides as to execution of public Justice upon the contumacious, he might (which our Posse of the County resembles) use force, raise the people.) This difference is plain in that law of King Aethelstane Be ƿerum— of the estimation of heads, 
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 joined as equal) is fifteen thousand thrimsa— of a Bishops and Alderman's, who next follow, and are joined, but eight thousand, etc. Sometimes the same things are said of both the Earl 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 Earl whom they called Sagibarons, as Ingulphus, who is altogether for King Aelfred; King divided the Governors of Provinces, who before were called Vicedomini into two offices, into Judges, whom now we call 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 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, Suitors 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 Germane their own Elders, who in Tacitus Jura per pagos vie●sque reddehant, made distribution of Justice not only in one Town, or in the Prince's Palace, but also at sundry other special places within the Country, 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 Arch●ion. 89.  But to satisfy 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 Milan or Pavia, after so many hundred years they would endeavour to distinguish the Lombard, and Insubrian, the Insubrian Gaul from the Italian, in France the Gaul, and German-Franke in Spain, the Carpetane and Wisigoth,) I say to satisfy 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 Laws, called the Laws of King William the first, published by M. Selden, with his learned Notes upon Eadmer, (and since with the Saxon Laws) is this: These are the Laws and Customs 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 Cousin beld before him. In these Laws recited by Hoveden in the life of King Henry the second ' King Edward's Laws 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 Laws which we have added for the profit of the English. 
g Pars Poster. 661.  This Confirmation was not freely given, but in this manner— King William having heard the Laws of the Danes and Normans, and approved them,— (as the Chronicle of Lichfield having approved the Laws of those of Norfolk, Suffolk, Grantbridge, and Deira, etc.) he commanded they should be observed through the Kingdom, as more just than any others, because himself 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 kill blow, then that of his Victory, they beseech him (and by the soul of King Edward, etc.) to permit them to enjoy their own ancient Laws and Customs, under which their Fathers lived, themselves were borne and bred up, to wit, the Laws of holy King Edward, and they tell him, it could not but be very hard to receive Laws unknown, and to judge of those things they understood not. 
h The Paraphrast of these Laws Chron. Lich.  The King long resolute at last yields, and as these, with much authority were venerate, and through the whole Realm corroborate, and before other Laws of the Realm, the Laws of King Edward, not because he found them, but because be restored them, says Gemeticensis of the same age with King William. 
i l c. 9  The Chronicle of Lichfield and Hoveden are more large, with which agrees the first Chapter of the Laws of good King Edward, (thus it speaks) Which King William confirmed, all of them use near 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 enjoined 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 Customs, nothing omitting, nothing adding, nothing out of prevarication changing: 
k Hoved. 601 Chron. L●ch. ll. Ed. c. ●.  Further, yet in that Chronicle Aldred the Archbishop of York (not Thomas Archbishop of Canterbury, as the Paraphrast would have it, there being no Thomas of that See, till lawless Beckets days, who as this, and Malmesbury) crowned him, 
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, etc. Ingulphus Secretary to William in Normandy, and after made Abbot of Crowland by him, is witness enough alone, and as he, I brought this time with me from London (where he had been about the business 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 authentic, and perpetual, all England over to be kept, under most grievous penalties, & commended to his justices in the same tongue they were set forth 
m Ingulph. p. ult.  This proclamation was not all (to allay the storms which perhaps the violation of these laws had raised) for the good of peace, says an ancient Monk, He swears upon all the relics of the Church of S. Alban, touching the hol, Gospel. Abot Fretherick ministering 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 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 commanded all the County without delay to sit & all the French of the County, & especially the English, in the ancient laws & customs skilled to assemble 
o Not. ad E●d. 198.  William the 2. promises only easy laws, justice, equity, and mercy, and laws desirable 
p Hunting. l. 7.372. ead. 13. Ma Par. 14 Heved. in h. 1. , which his successor 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 customs which flourished in the realm in the time of S. Edward the King 
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 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 foreign 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 laws of King Edward, king Stephen confirms the laws in these words, all the liberties and good laws which Henry King of England my Uncle granted them, and I grant them all the good laws, and good customs which they enjoyed in the reign of King Edward 
s Ex lib. autiqu. Ll. . The Londoners request of Maetildis the Empress, 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 Florent. wig. in an. 11 42. cont. , (which grievous laws certainly were that salic rapuarian Danish medley) 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 How p. pricr in H. 2. , of which below; Hovedens words (this I will note here) that Henry the second made ranulph of Glanville chief Justice of England, by whose wisdom the laws underwritten were made, which we call of England; make no new law, nor that chief Justice a lawmaker, they explain what is intended by the laws of Henry the first his Grandfather— for the laws there underwritten 
w Hoved. pars pest. 6●0. , are merely King Edward's laws confirmed by William the first: king Richard the first swears to keep the good laws, etc. 
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 laws, the kings before and after swore to keep them. K. john absolved from the Pope's 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 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 laws is interpreted) and especially the laws of king Edward 
z Id. 239. , In the same place where king John commands that the laws 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 controversy betwixt Henry the second, and that Martyr of the Roman make without a cause, disobedient, unruly Becket 
a Hou. 492. in H. 2  called by that king as before his Grandfather's laws,) 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 Abbeys of all the Counties) and there tells the Barons of the king's 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 Ancient state revoke, the transcript agreed word for word with the Charter 
b Ma. Pa. hist 55.210 , the great sticklers for the lost liberties, for the good and just laws, for St. Edward's laws, are all of them Normans, or Norman-French, such as came in since Edward, and being settled here for some generations, now made a great part of the whole, amongst which are Fitz-walter Marshal of the Host 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 Earl of Winchester, the Earl 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 id. 254. . These when king John asked them what laws they would have, answered not, Sir, We are the Norman Conquerors, give us this people for a spoil, a prey, make them our villains, but quite another thing, they offer him a Schedule for the greatest part, as this Monk, containing the ancient laws and customs 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 calls 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 id. ibid. . All which laws, with much ado were confirmed by king John, this Schedule is the same, and everywhere agrees with our Magna Charta, or grand Charter (and that of the Forest) granted and confirmed by king Henry the third, called then by this Author the long required liberties 
e id. 323. , or rather by the whole Clergy and Nobility, who tell 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, etc. And strengthened with his seal, and one sent into every County— But (says he) the tenors of the Charters is had above more expressly (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 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 customs &c 
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 inquire upon oath what were the libertics in England in the time of king Heary his Grandfather, (so he is yet called 
x id. 317 Ma. W●st. ) the breakers of the Charters are Excommunicated, with candles burning cast away extinguished, and cast away stinking 
y Id. 861.  Thus we see the stream of the laws of king Edward, the ancient liberties, and free customs, 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 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 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 jast. 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 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 men's over wise policies would fancy; some parts of it being as moral and immutable, as the Decalogue itself. As those, That no man shall distrain for more service than is due, no man shall be amerced for a small fault, but after the manner of his fault; no man shall be destroyed without trial, justice shall not be sold, nor deferred, etc. The observation of these Laws was a condition of Peace, which ever appeased the ancient distempers, and cemented what was lose and disjointed in the great body. The Law's toe of St. Edward are inserted into the oath of the Kings of England, usually taken at their Coronations, which were not only superfluous and abundant, but an impious vanity, if there were no such laws 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 Laws and Gustomes by the ancient, 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 Laws, Customs, and Liberties, by the glorious King Edward to the Clergy and people granted. 
d Ex libro regali.  After he is led to the high Altar where he swears to observe them, etc. Further, so fare are some from allowing our Laws to be Norman, that they are of opinion the Normans received theirs from us, (as they) most of their Customs 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 Laws to the Normans, and made the Customs of England, and Normandy, 
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 suspicious, 
* Sup. 55.  that so few of these Laws are come to our hands (of which something is said before) and of their Book-Cases or Judgements 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 strictness of rules spoke of, writings and deeds either to pass Lands or Privileges, were not in use till King Withered, near 700. years after our Saviour, that King being so illiterate, that he could not write his name, as himself confesses, 
f Concil. Sax. 198 , King Aelfred little less than two hundred years after this complains 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 Latin into English, but in the beginning of his reign on the South of the Thames, he remembered not a man who could have done it; 
g Ibid. 379 Epist. Aelfredi, ad Walsagepiscep.  and although this King of sacred memory, if perhaps (as I cannot think 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 less than beginnings would likely have been, where such a Prince had been the Workman, he could not intent them; the Danes like a fatal whirlwind tearing up root and branch, every where ruining, had long before broke into the Land, which two hundred years together they miserably harassed, with whom he fought fifty six battles, and as may be imagined, had not leisure to perform the duties of peace, but in his arms sometime hid in the poor shed of an Herdsman, as the most knowing Knight, a King without a Kingdom, a Prince without people, so that he could not think of his Laws, 
h Concil. 378.  and although there was some breathing, and the storm had some intermission, some calms were in the two hundred years, some in his reign, yet such ravage and spoil had these barbarous thiefs made, and so universal 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 war, licentiousness, and careless negligence have bred in the parts most sound, are plucked up, and the weeds thrown out, which must be the work of time: The proceed too of the Saxons our Ancestors (as M. Lambard) in judgement was the plane, and without solennity, enough to clear this, though the Saxon Laws than were enough for the Commonwealth, yet they had no great extent whatsoever unto S. Edward, gathered out of the Laws of those who followed this King, and saw more quiet days, or out of the whole body of the Saxon Laws could not reach fare, but not out of any defect in the Law itself, than the cause why the law runs in a larger channel, and spreads into more veins now, is not any artifice, or injust dealing of those who practice it, but the improvement of estates by good husbandry, much traffic, whence contracts are more frequent; As Sir John Davies, there is more Luxury and excess in the world, more force, deceit, and oppression, more covetousness, 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, etc. When the Romans were little better than shepherds, 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 all cases which may happen; for written laws must needs be made in generality, and grounded upon that which happeneth for the most part; because no wisdom of man can foresee every thing in particularity, which experience and time doth beget 
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 than the poor, 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 public 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, unless there could be a stay of men's manners, unless they could move in an orderly course, either continually running upon things forbidden, or avoiding them, either constant to their own goodness, or their lawless sins, there must be new Laws to amend what is amiss, unless Prophecy 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 than their discontent who only 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 only demonstrated to be justly made, and according to the law of Nations, weighed, and allowed, not by the wisdom of a narrow age, but imbelished, and polished by the experience, and wisdom of a thousand years, (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, 
Tenors.  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 jaw, is the vassalage of feudes, or Tenors, 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 German 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 Curt. l. 111 , upon the King's head 
l Plut. in Crasso. . Not upon the soldiery amongst the Gauls, heads devoted to him and his fortune, whom they followed, the Gessel amongst the Gauls and Germans 
m Caes. come. l. 3. . Not upon Nero his kissing the Armenian Tyridates kneeling, which might be thought homage 
n Sueton. in in Ner. . Nor upon Alexander's kiss taken by Mr Fulbeck 
o Paral. 4. Dial. , for the same, Calisthenes is refused this kiss 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 ancient Clienteles of the Romans, 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 Client, and he with all faithfulness to observe the Patron, to attend him in public assemblies, to contribute to the marriage of his daughters, to the payment of his public mulcts, etc. 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 money, 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 soldiers 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 soldiers, and to their heirs 
p Lamprid. in Alex. Sen  Constantine the great appropriated the Lands assigned, for the pay of the soldiers, to them, and their heirs, with this charge, to maintain continually a certain number of soldiers: which came to a near resemblance. Gregory Haloander 
q In praes. Noves. , says, the customs 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 than our livery. The chief Lord, the first year the heir or successor of the Vassal came to the Land, was to have the whole revenue of it, or a certain sum of money, 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 Germany (as the most knowing knight 
r Gless. D. Spelm. scudum. ) brought forth the rights, and customs 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 another's 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, Emperors, Kings, and Princes to reward those who had fought valiantly for their new Conquests, and to plant a perpetual soldiery, prepared, ever ready upon the Ban, to get to horse, or march, bred up to arms, as to a profession, to the intent the Country might be preserved against invasions, and tumults, without the Princes or the public charge, (mischiefs sometimes breaking in so suddenly, that the slowness of any other preparation, where levies of men, and moneys require time, cannot be stayed for) Countries were given to the Capt. who after made subdivisions to their soldiers, the Captain's part being proportioned according to the number of those under him, all being still incorporate, a civil unseen militia, not ever shrieking the eyes of others, quietly mixing, and keeping course in the common stream, 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 tenors have been created according to this rule, (as the Lord Gooke,) 
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 own, nor has the Vassal any reason to complain, 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 testify the gratefulness of the taker. 
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 own reservations to himself; I believe there are few men now without harths or households Gods who would resufe a good manner, because these ties hang upon the Label. Sir Themas Ridleyn a Civilian fetches the Feudes chief from the Lombard's, 
u View etc. 71.  much augmented and adorned by them they might be, 
w Gloss. D. sp. 256.  (which Lombard's 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 ancient Lombard Laws the word feud is not to be found, seldom 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 original, feb fech, from whence it comes being the same with fee in use now: The greatest part of the words taste not only of the German, but of it's more ancient dialect the old Saxon. 
x D. spelm. ibid.  The feuds came but of late to be a volume of the Civil Law, composed by Obert de Horto, and Gerard Niger under the Emperor Frederick the first surnamed Barbarossa, anciently the fee was held merely at the will of the Lord, 
y Ger. nig. l. 1. T. c. 1.  after for a year, for life, made perpetual and hereditary by Conrade the salic, the year 1025. amongst the Germans, where the descent was, as we call it by gavelkind. amongst the French in the reign of Hugh Capet, which he began in the year 988. in the year 913. as Munster will have it Conrade the first changed this custom, he gave the Dukedom of Saxony, to Henry the Falconer as a fief hereditary to the end (these are his words) that he might be the more vigilant to combat the Obotrites (now those of the Dukedom 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 Cosmegr. 346.  after his defeat of the Hongres. 
a ibid. 359.  Lothaire the Emperor forbade Lords to take away the Vassals fee without his crime, which some interpret signal ingratitude, 
b Feud l. c. tit. 20.23.  to which Conrade adds, unless he be convinced of the crime by the judgement of his Peers or equals of the Court, 
c ibid.  which is called Landamentum. It is said of the Germans, the Emperor, because he cannot judge causes in all places, confers upon illustrious men: viz. Princes, Earldoms, and feudal banners, 
d Specul. Sax. Artic. 52.  as another they have their fanleben, or principal fees the collation and investiture of which belongeth only to the Emperor. 
e Stat. German p. 2.52  These were the fees of the great Captains or Barons, called by them freyberens— under which are the Medii Liberi who followed the War, and aught homage to another as Servitors noble, 
f Munst. 145.  the Land they called Terra salica, was the same with our Knight service, 
g Bodin. l. sixieme c. 5.  this was simply called a fee military, held of the Barons and Vavasours, of all which the jaws speak, where are mentioned, the great Captains who received the regal fiefs, called vassi dominici, who held in chief, the middle of a lower sort who received siefs from them, and the lowest to whom those gave. 
h Feud. l. 1. tit. 1. sec. 4. Et tit. 15.  Frederick the first, is made to speak thus, We in the presence, & witness of all the Teutonic's & Lombard's, and of the Bishops, and lay Princes, and Barons, and Vanasours, etc. 
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 Crown itself 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 Earl by Rodolph the 11. for his good service and valour against the Turks at Strigoniun and the parts about) were— we have created him, and all and every of his Children, Heirs, and Posterity, and Descendants lawfully of both Sexes for ever to be born, Counts and Countesses, etc. 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 remains nothing of the latter but the memory of it with us, not yet worn out a mongst the Germans; and as to some duties, as tilling the Lords ground, carrying in his corn, etc. the complaint of the mutinous Clowns of the schwabische kraisse, or circle of Suevia was true, that their condition was little better than servile, 
k Sleid. come l. 5.  fiefs are every where in France upon the reasons before brought in, as all their old Laws & Institutions, by Pharamont, and his Germane Frankes, the Conquerors of the Gauls. The Nobles from the time of Hugh Capet, took their surnames from their fiefs, the French have their fief, dominant en , or tenure in capite, held immediately in chief 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, Customs, jurisdiction 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 rend, or tilling the Lords ground, etc. The Cens was a Custom 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 own their suits 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 naturalised. The right of bannery is the same with us, which is the privilege of having a common Mill, Oven, etc. whereto the tenants of the Manner must resort, so of the dehris for wrecs, or shipwracks, of right of warren, fishing and fowling, of Hereot a Custom of of the Germans yet, of Relief, 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 Spain (as the author of the estates of the world) are Goths, and retain their Customs though not their name since Roderic 
l D. T. V Y.  as Doctor cowel a most learned Civilian; if you look upon the Italians divided enough in their dominions, upon the French, Spaniards, and Dutch, our own Country or the Scots, you shall find the Laws of feudes to be admitted. 
m Jnst. Ju. Angl. pref. 14.  Tenors are amongst the Persians, 
n Jou. Hist. l. 14.  the Turks, the Ruff and the Spaniards of Peru, by the Ordinance of Charles the fifth, the Emperor and King of Spain; 
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) known and in use long before the Normans are heard of: whose appearance which showed them to the world was in inroads and piracy, wherein many years together from their first sally from Norwey and those parts, (places which is every where the fate of the most Northern Provinces barbarous enough at this day) to the days of Rollo more than two hundred years, 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 return, but depopulations and blood; and had they introduced here the rites of Tenors, they had introduced but what themselves took up, (either took up, or brought with them is the same) and what was common, as has been observed, amongst all the victorious German Nations. The only way to make it plain, 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 denied▪ 
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 than any military Tenure will be found to be.) 
q V.C. Dom. Wat. Gloss. in Par. D. Cowel. ver. 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 D●n. Sptl. verbo Alod.  called out at no man's command, in no foedall servitude; yet who acknowledged a Lord, says 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 kind of military Gentry, owing little more than 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 id. verb. Leudes.  The word leudes has several 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 inveigle away another's leudes, 
t Greg. Tur. l. 6.  specially it is taken for the Vassals praedial, servile, feudal, and noble; more restrainedly for the vassals royal, after called Barons, which must be the Frankleudes. I will relate, and only relate what I have found elsewhere amongst us of our Alodiary, Doomsday is cited in these words, And in Sussex Cetingley, 
* Tit. of Honour Cheding.  (for Chittingley a Town in Pevensie Rape) Almar held of Ring Edward, as Alode sicut Alodium. Upon which the Aloarie is said to possess his Land by Clientelar right, 
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 be) the same Doomsday speaks thus, These forfeitures has the King over all the Alodiaries, of the County of Kent, and their men, (vassals) And when the Alodiary dies, the King shall have relief therefore of his land, except the land of holy Trinity, etc. and of their lands be has relief, who have soc and sac.  
Not to fall upon a discourse of the feudal Soldier, who fights ever for his own, 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 be called servitude, and some more willingly obey a condition of their own acceping, than a command: I will show below there were special obligations of this kind upon those who were certainly beneath the Alodiary. The Saxons had their Manors, which they called Berries, sometimes with lesser Manors, or Berewics, as Hamlets of the greater holding of them, which had many plough-lands, many kinds of services, many Freemen, So●mannes, many of those who did the Lords work about the house (from 
* D. Spel. gloss.  board the house in Saxon called bordarii, or from board, which in Saxon is a Table, a word u● said 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 Etymology. If that place in the Doomsday be considered, Tit. Norf. Nereburgh, (a Town, now Nerborough) held Aelwie in the time of King Edward the Gonfessor, now R. etc. Then four and twenty villains, etc. Then and after ten bordarii borders, etc. Tit. Hereford. And other twelve borders working one day in the week. 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 D. Lamb. Itin. Gant.  I bequeath, says he, to Walfege that Inland, (as M. Lambard the demeanes) and to Elfey the outland, as he, the Tenancy. The Ecclesiastical Laws of King Edgar, command Tithes to be paid both out of the Thenot Inland, and the Neatland, the Tenant's land. 
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 confirm to the foresaid Monastery of the gift of Geolph, son of Malt in Halington, four Oxganges of land of Jnland, which the Margin once corrects by Luland, for Juland, both which make it nonsense; there is added, and ten Oxganges in service: The words— Manor, Mansions, Tevements, Marshes, common of Pasture of all Beasts, are frequently met with in the ancient Grants made by the Mercian and West Saxon Kings to the Monastery of Crowland, 
f Inulphus Savil 859, 864, 881.  with the terms, acres, hides, Carves Oxeganges, Yardlands, Firmes, Rents, etc. many of those Manors had their Royalties, or huge Privileges, (as Ingulphus calls them) annexed, both of Jurisdiction in some parts lessened since, and profit. King Edgar's Chatter this Monastery, describes and grants them, I grant and confirm, says he, etc. free from all secular charge, and that they have all the free Customs with all that which is called Soc, Sac, Tol and Team, Infangthef, Weife, and Streye, 
g Id. 881.  amongst which Sac in the Halmot, since Court Baron, was common to all Manors. In the great Plea of Pennedene, (of which before) the Archbishop is said to darrein all the Liberties and Customs of his Church, Soca, Saca, Tol, Team, Flymena, Fyrmthe, (for Flymen firm) Grithbrice, Forsteal, Haunfare, (for Heinfare) and Infangennetheof, 
h Not. in Ead. 196.  most of which are now worn out, unknown 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 myself, as they are upon whom I rely, for Soca D. cowel citys S. Edward's Laws: 
i c. 23.  He says— some will have it an Inquest, as if it were seek, some. Suit of Court; others an exemption of the Tenants from any public duties without the Manor or Liberty, called still soak; soon— socne is in Saxon liberty, 
* Ll. Cnuti. c. 69 4.  free Jurisdiction; frithsocne is a sanctuary, a liberty of peace. 
k Ll. Eccles. r. Cnuti. c. 2  In the lives of the Abbots of S. Alhanes, we read, with all the lands which William Chamberlain, or the Chamberlain held in the Soak of Luiton; 
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 do their Suit, and out of which they are not to be drawn— Sac is conusance of Pleas; Tol is said to be a liberty to buy and sell within the Manor, 
m Ll. Edu. c. 24.  more likely, some duty paid to the Lord upon such sales. Team in other Saxon out of the Laws is progeny; 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 Courtbaron of things claimed, stolen, where he in whose hands the goods were found might vouch his Vendor, and he over till the Thief was discovered, if he were teams ƿyrþe, as King Cnuts Laws speak, if he deserved the right, as having bought before legal 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 Laws, tyman, team in those of Aetheldred, team, teams time in Cnuts, in the same sense 
n Ll Ina l. 74. Alfr. 4. Edu. sen. 2. Aethelft 24 Aetheld. 9, 10. Cnuti. 21, 22. Edv 3.25.  the other terms may be rendered by Mulct of sustaining Fugitives or Outlaws, of breach of the peace, forestall, departing of a Servant, Trial of a Thief 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 Doomsday, where they are are called Parcisylvatici bestiarum, Wood Parks of Beasts. Forest's too here are as ancient, called Bucholt, and Buchurst, is the same, holt and hur'st both signifying a Wood King Cnut in his Laws 
o c. 77. v. man Ferest. D Sp. gloss. verb. Forresta.  gives any man leave to hunt in his own Woods or Fields, forbidding only to meddle with the King's Venison in the places of freedom, other Forest laws were after set forth by the same Cnut, one of which in the thirty chap. gives leave to hunt, but not so generally, it names not woods. If the Saxon original were as narrow, (which no man now knows) yet I see not why these laws should be suspected for it, as they are 
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 king's game, not wheresoever according to the word, but wheresoever he will have it (according to the other law) gefƿiþod privileged, free. What the Thane was, and how he held his Lands, and Lordships, I will next inquire.  
The word Thane, Thegen, thein, thegne, (we find theowan too) and all these ways it is written, is used sometimes indifferently, in some places merely for the king's servants, merely for a servant, as in Doomsday Cola the bunter, Vluiet the hunter, Godwin the Falconer, etc. and in a Saxon Sermon 
q In Beda 〈…〉 382 . The Queen of Seba tells Soloman blessed are thy servants, theguas and theowan, the Apostles are called thenes 
r Bede 483. , yet in other places it may be observed directly and properly restrained to, intended of a Thane, holding Ta'en 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 Mass praying for his soul, as supposing him slain in the battle with Elwin king Egfreds' brother) who feared to confess that he was the king's 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 Bede. l. 4. c. 22. , and being questioned, answered he was the King's Thegne. There is the King's Thane & the ðeoden mean or under Thane. The first, the King's Baron, the other the Lord of a Manor 
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 Earl, and their Thanes, according to the Charter of the Confessor for the Lands of St. Paul's Church there, which runs thus: Edward king Great mine Bisceops, and mine Forles, and alle mine Thegnes ou Thou shiren, where mine priests in Paulus Minister habband Land 
u D. Seld. tit. Hon. . He acknowledges there were the feudal honorary, ninrges Ðegne King's 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 makes 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 citys, Si Ceorlman prove batur ut habeat 5. hidos terrae ad ut Waram (which should be utfaram expeditionem) regis, etc. That is, says he, held of the King by knight service 
w Tit. Hon. 2. edit. 622 624. . In Doomsday tit. Bockingham scire, is, Burchard Teigue. 1. Baro Regis Edwardi— That is Baron of King Edward. Amongst the witnesses to the privilege 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 king's thene a t raed of his Council 
x Concil. 500, 501. , which certainly were Thanes or Barons by the service of these places. We read of those in the Saxon chronology, who served not (n ordinary, lived not continually at Court, 
* v Sax. Cron. 534, 543.  or near the king's person (like those in the Confessors Chatters here) yet are called the Kings Thenot. The words are these, And in those three years, many of the kings most choice Thenot died, amongst which were Suithulfe Bishop of Rochester, and Ceolmund Alderman or Earl in Kent, and Beorhtulf Alderman amongst the Westsaxons, and Wulfred Alderman in Hamptonshire, and Ealheard Bishop at Dorchester, and Eadulf the king's Thane amongst the South Saxons, and Beornwulf the Gerefe in Winchester, and Ecgulf the king's Master of the Horse, his horse Thene, and many other of the most noble 
y Cronolog. Sax. 545.  Which I shall make yet more clear, when I come to speak of Hereot out of the Laws of King Cnut. This Law is meant of the less 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 Ll Edg. 2 , to make it more full (as before is said) that the policy of these German Nations tended much to war, the very ceorl●● or ploughman could not under such a penalty keep at home, when an Army was to march 
a L●. Ina. c. 52. , and whosoever withdrew himself from the march, forfeited all he had 
b Concil. ● Ae●ham. c. 24. , if the king were in the expedition, The Doomsday says— In the City of Hereford— The Burger serving with his horse when he dies. The King shall have his horse, and arms. As there. Wallingford in the time of King Edward the confessor contained 276 hages or houses, rendering ten pounds of rent or gable, and who remained there performed the king's service with their horses, or by water. We find in the Saxons times in a gift of lands reservations of services, and creation of Tenors: 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 Concil. Sax. 379. Asser. men vens. . John Pik who writ in the reign of king Henry the first says, king Aelfred gave these Provinces, etc. Under 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 de gest. reg. l. 2. c. 4. , in the Chronology we find. 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 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, Hwal (Hoel Dha) Jacob, and Judethil, whom Edgar bound to himself in a perpetual oath 
f l. 2. 4. c. 8. v. tit. Hon. , which may be called Fealty. Where the same Harding recites the beneficiary Clients or Princes (who had sworn Fealty (says Mr. 
* Mare claus. 280.  Selden to king Cnut) he adds, 
So did the Kings of Wales of high Parage,  
And all the North-West Ocean  
For their Kingdoms, 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. Alban. Then says the Monk in the time of Abbot Leofstane and Edward the Confessor. The Chilterne a small country near the Monastery was full of Woods, in which lodged divers beasts, wolves, (not then it seems extinct) boreas, wild bulls, and dear, and which were more mischievous, thiefs, out laws, 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 thieus, as well from noisome beasts, as thiefs, and answer such loss as by their neglect should happen, and if common war should happen, with all their diligence, and power defend the Church of St. Alban, 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 Vit. Ab. 46 . In Doomsday is said, That the Church of holy Mary of Worcester, has the hundred called Oswalds hawe in which lie 300 hides, of which the Bishop of that Church from the constitution of ancient 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 Doomsday 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 Manor 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 clear (so the Glossary) that these Drenches were a kind 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 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 ughtred, 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 die; his heir being within age, the Wardship of the heir, and land belongeth to the Lord of which, &c 
i D. Spelm. gloss verb● Dronches. , with the marriage. Whether wardship and marriage (as the Lord Cook 
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 Mirror in the place cited by him are for the affirmative 
l Inst. 1. p. 76.4. Inst. 292. mire. sect. 3. graft 911. etc. . By a law if any man die intestate, the Lord is to have nothing but what is due by the name of Hereo● 
m Ll. Cnu●● c. 68 , by Mr. Lambard this is acknowledged Engish-Saxon, and thought to be the same with relief: one place says— Relief, or rather Herent 
n Not. in radwes. 152 , and Hereot or relief 
o 154. 161 id. , & compares the Hereota to the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Hereor is a service and acknowledgement of the signory 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 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 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 saddled, four not, four Helmets, four coats of mail, and eight spears, as many shields, four swords, and two hundred 
* Saxon ●,  Marks of Gold. The greater Thanes, the king's Thanes, four horses, two saddled, too not, two sword's, four spears, as many shields, an helmet, a coat of mail, and fifty marks of Gold. The Medmere or under Thane, one horse ready, his weapon, or as amongst the West Saxons, his neck ransom, amongst the Mercians two pounds, amongst the Eas●-Angels two pounds. The King's Thanes Hereot amongst the Danes who has free jurisdiction ðe his socne haeb●e four pound, and if he be further known to the King, two Horses, one saddled the other not, one Sword, two Spears, two Shields, and fifty marks of gold: The conclusion has not Infimae conditionis Thani as the Latin is— But he that has less and less, may be he two pound, 
r Ll Conti. c 69.  other Lords had their Hereot too. The Laws of Kings William, which as the title, were the same which King Edward observed— calls this which in these Laws is Hereot, relief, and the Earl, 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 ●. 22, 23, 24, v. c. 20.  with little difference. King Edward's Latin Laws where any man falls in war before his Lord by Land or else where forgives his relief, 
t c. 3●.  and gives his Heirs, his Lands, and Money without diminution. 
u ibid.  I will observe a little out of those old grants and Charters which preceded the Normans, by which the religious heretofore made their titles, only careful to get, and to be free, where we shall find other men were not so. The confirmation of Pope Agatho, of the new raised Monastery of medeshamsted after Peterborough, before the age of Charters, 
w An. 680. Concil. Sax. 164.  recites the immunities. It was to be in no ðeudom in no kind of servitude, neither to King, Bishop, nor Earl; No man was to have any rent or tribute there; in the Council of Becanceld King Withered freed the Church, from all difficulties of saecular servitude, from feeding the King, Princes, aldermans, Earls from all works, the greater and lesser grievances, etc. 
x Council Becanceld. Au. 694. Concil. Sax. 190.  Witlafe King of the Mercians, in the year 833. confirms to the Monastery of Crowland their Lands and Tenements thus; I grant, deliver, and confirm, those Lands and Tenements, etc. for a peaceable and perpetual possession, to have from me and my Heirs, whosoever Kings of the Mercians after me to succeed in puram Eleemosynam, in perpetual and pure frankalmoigne, Libere, quiet et solute, or (as we now use it) quit, and discharged from all saecular charges, exactions, and tributes whatsoever, by what name soever; 
y Ingulp. hist. Concil. Sax. 328.  as another place amongst many things done & said, Ceolnoth the Archbishop before the whole Council (of Kingston) shown, That the aforesaid Kings Egbert, and Aethelwulfe his Son, gave to Christ-Church (at Canterbury) the Manor called Mallings in South-saxon, free from all secular service 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 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— says— in England before the Normans were military fiefes, the Earls and Thanes were bound to a kind of Knight service, all the Lands of the Kingdom (except some privileged, etc.) held of the Crown mediately or immediately; but says he, the expedition mulitary, etc. those three were not so much by reason of tenure, as general subjection to occasions of the state; 
a Tit. Hon. 1 Edit. 321.  likely so, yet to recite the opinions of others, there are that think 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 twelve men with their shields, cum scutis, burgbote, etc. as the most knowing Knight. In the ancient Charters and Leases often profectio militaris and expeditio are the same which amongst the Saxons is called here fare, amongst the Germane Hereban, with us and the French escuage at least that which is certain. 
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, Manors, Mansions, Milles, Marshes, free and discharged from all secular service and earthly charge, etc. and I free from all duty of the King, and of every other Lord and man, of what dignity, excellency, and honour soever. 
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. He will have that tenth part to be free (as the several 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, only 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, etc. to serve God only, without expedition, repair 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 General Council 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, slain by those Danes. Hence the most worthy Knight thinks the rectory and the glebe to have had their beginning, though fair additions from the munificence of pious patrons have been made to it since. 
d concil. 349. 352.  In optona grena (Vpton green) as Ingulphus— St Gutlac (the tutelar special Saint of Crowland,) had and bathe Woods and Marshes, etc. in the time of King Edward, free and quit from all services, 
e Hist. 909  & from the time of King Etheldred was the Seat of our Abbey (says he) quit and discharged from all secular services, and our Abbey was quit and free from all secular services in the time of that King, who was the lawful Successor of the royal blood of the English, and father of the most pious King Edward. 
f p. 911. s. 30 40.50.  And again, a great part of the Marshes and Meadows of the Seat of our Monastery (says he) I demised for a certain yearly rent, and other services to be done. 
g 912.  The Folcland (of the basest tenure) amongst the Saxons as M. Lombard, which passed without writing, was that which now we call Copyhold at the will of the Lord, 
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, etc. 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 annual rent, etc. yet the name, etc. remaineth, and in divers places the Tenants yet do such services with their Ploughs to their Lords. 
i L. 2 s. 119.  Bracton calls the Copyholder villain sockman (or sockman of base tenure) 
k L. 2. c. 8.  others tenant in villeinage, servitude indeed, or villeinage since Richard the seconds time is by degrees rather worn out, then abolished by any law, nothing now is left but the name, the last man which I have known claimed for a villain being Crouch of Sommersetshire in Queen Elizabeth's time. 
l Dy. 266. 283.  This too is Saxon English, and preceded the Normans, but was never favoured by the Law. 
m Dy. 267. lit. s. 193. Forost. c. 42.  The Saxon laws 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 work on Sunday by his Lords command, be he free, and the Lord shall pay thirty shillings for a penalty, if he work without his Lord's knowledge, he shall lose his hide, (be whipped) or his hide gild, the price of it, but if a Freeman work that day without his Lords command, he shall lose his freedom, or sixty shillings. 
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 Doomsday Book by Ingulphus the Abbot, we find in Langtoft, S. Guthlac bas, etc. viz. five Carves, 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, etc. There in Dominio one Carve, five villains, two Bord. and seven soem. with two Carves in Soudnave slound— two servants, six villains, three Bord. with one Sochman, having three Carves, etc. with much more of the same. 
o Ingulthus Savil. 908.  In the year 1051. Thorold of Buckenbale Sheriff of Lincolnshire, likely of the the blood, a descendent of the former Thorold, who had Lands in Buckenhale, grants the Manor of Spalding to Wulgate Abbot of Crowland in these words, I have given, etc. to God and St. Guthlac of Crowland, etc. all my Manor situate near the Parochial Church of the same Town, with all the lands, and tenements, rents, and services, etc. which I had in the same Manor, etc. 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, etc. also Harding the Smith, and his whole sequel with all the goods and chattels which he hath in the same town, etc. also Leftan the carpenter, and his whole sequel with all the goods and chattels, etc. also Ringulph the 
* Ringulphum primum.  first and his whole sequel, with the goods, and chattels, &c also Elstan the Fisher, and his whole sequel with the goods and chattels, etc. Also Gunter Liniet, etc. Outy Grimkelson etc. Turstan Dub, etc. Algar the black etc. Edric the son of Siward, etc. Osmund the miller, etc. busy Tuke, etc. Elmer of Pincebeck, etc. also Goose Gamelson, etc. With the same clauses to them, as before. The conclusion is; these my servants (servos) and their goods, and chattels, with all my Cottages, etc. together with my Piscaries as well in the marches adjacent as in the sea coming up to the same Town, &c 
p Ingulph. 913, 914. . Plain denotations of the Villain regardant, this was done in the tenth year of Edward the Confessor, fifteen years before the Conquest; and unlikely those rents, services and the villeinage of these men should begin the day before the grant. This Ingulphus himself makes plain. It is (says he) to be declared, that in the seat of Crowland villeins, borders, nor Sochmans' are not received, unless out of fear of war over our heads 
q p. 911. . I should think this Sochman very base, neither of much esteem nor freedom where he is so ranked, and keeps such company as in these places. Nor here was our law more inhuman than those of all other Christian Nations. The Civil law suffered this slavery, till Justinian by a general Edict restored all men to their freedom, 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, etc. says Bodin 
r Republ. luire. 1.  In Poland the Villain is yet in being, he is called there Kmetoes 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 Country. 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 An. 1558.  (in Boains' time) pretended not only a right of succession to the goods of his Subjects (so the Peasant or Vassal 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 Meadows, reap and thresh his Corn, build his House, to pay his ransom, and the taille in the four cases anantiently accustomed (viz. for Knighting the King's eldest Son, marriage of his Daughters, voyage over Sea, and Captivity) and, if they straggled 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 Suits, of Counselors, of the Judges, of Writs, Plead, the Terms of Art, Hotomans censure of Littleton, the common Laws may easily be digested into method, their principles and excellency in several respects, mercy, etc. confirmed by Parliaments and testimony of others not of the profession, the professors honourable.  
NO Nation can compare with us in the Justice and Majesty of our Courts, 
Courts.  where (so general is their extent, and power to redress 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 entangle. The first judges— posito modo praetor aratro— be said to give Laws to administer Justice to the people while the Plough rested, but upon the same reasons which make Laws at first (as is said) plain 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 own doors. There was but one high Court of Justice ever moving with the Prince, which judged (as Mr Lambard out of those Laws of appeals, 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 Laws are, unless he cannot find right at home, or right be too heavy, 
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 administered till William the Conqueror, 
w Arch. 20.  and after him this Court continued under the chief 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 Chief 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 King's Court, though this Charter was before granted by King John, in the 17. of his reign, it should seem by the charge against that much wronged gallant man Hubert de Burgo, chief Justice in King john's time, and in the time of Henry the third, after the death of William Earl of Pembroke chief Justice, 
4 H. 3.  that this huge office was not shrunk, that the chief Justice was then whole and entire, 
x Ma. Pa. addi●. 149.  besides the pleas of the Crown, and common pleas, he had the power of the chief Baron of the Exchequer, and of the master of the wards, 
y Addit. ubi sup.  and sometimes commands armies, 
z Ma. Pa. 193.  an employment too much for one man, and business 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 will say something, but briefly; my aim being to make a trial 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 show them, that if justice only be desired (the pursuit of which lawfully and civilly is fair 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 administered as well to the poor, as to the rich, without any respect to be had of persons. 
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 Stat. Marlb. c. 1.  The times had been unruly before, and many of the great men (says 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 Stat. Marlb. ibid.  Here, as another Statute, The Justices are to do even law, and execution of right. 
d 20 E. 3. c. 1.  The supreme of these Benches after this alteration, dealt in pleas criminal, called placita Coronae in the books 
e 4 Inst. 71 Stamp. Pleas of the crown.  examined, and corrected errors, misdemeanours, 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 personal actions of ejectione firmae, and the like against any in the custody of the Marshal, or any Officer of the Court, who may implead others in those actions, of all trespasses with force and arms, of Repleviu● Quare im●●dit, etc. of Assize of Novel disseisin. These Justices are the sovereign Justices of Oyer and Terminer, of Gaol delivery, and conservators of the peace, &c 
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 jurisdiction; The Ordinary held pleas of s●ire facias to repeal the King's 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 recognizance 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 Ibid. c. 8. . In the Court of Common pleas, or common bench all real actions are determined, and all common pleas mixed, and personal. Besides the Stationary Courts at Westminster, there were the Justices in Eyre, the sitinerant Justices. Charles the bald in the year 853. divided France into twelve parts, and over every of the parts placed men famous for Religion and Law, who yearly travelling their own Divisions, took cognisance of wrongs done betwixt party and party, and of the public offences according to justice. By which pattern King Hen. the 2. of England in the year 1176. divided this Kingdom into six parts, over every of which he appointed three Justices yearly to go their Circuits 
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 year, and at certain 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 deal with Treasons, Murders, Felonies, and all misdemeanours whatsoever, they have one other Commission of the peace in the Counties of their circuits, by virtue of all which together they sit. More perhaps cannot be devised for the ease of the people. Thus is justice brought to their own doors, the same thing with a fixed standing Court, and as it may chance more safe. The less the Judge is known in the Country, the less is the danger of siding or biassing. I speak not this as if I had more fears then other men, or were for any of the new jealousies, these are the fears of several of our Parliaments. There is aprohibition in two Statutes, That no man of the Law shall be from henceforth Justice of Assizes, or of the common deliverance of Gaoles in his own Country 
i 8 R. 2. c. 2. 13 H. 4. c. 2. : and a third Statute of confirmation is more full, it says, That whereas it is enacted, that no man learned in the Laws of this Realm should &c. be Justice of Assize in the Country where he dwelleth, since divers men learned in the Laws, etc. have by their means and policy, and for their own commodity etc. obtained to be Justices of Assizes, 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, etc. hath been conceived and had &c. enacted etc. that no Justice etc. use nor exercise &c. as before 
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 Country, sit upon the Bench with the Justices of Assize 
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 celestial 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 mischiefs and inconveniences, yet some failings incident to the imperfections of man in itself, and by corruptions from without, their grace and flourish may be but short, nothing is so incertain in the taking as new Laws, much must be ventured, much committed to fortune, and if according to the Saxon form (which is shown is not yet extinguished, and what is lost in jurisdiction, or rather in use in the lower Courts is supplied, as is shown 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' door; 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 encouraged by it to molest others, the trouble and expense being so little, and the way to embroil so ready and near, 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 only say so, would have them imagined to be; actions would fly thick, and swarm so fast, one year would bring forth Volumes more swelling than 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 conscientiousness 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 only 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, unless we think ourselves 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 oppress and devour 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 fountain, 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 than the Irenarchae of old) appointed to take care not so much of the public discipline, and correction of manners; as for the peace and security of the highways 
m Cod. Thead. in rub. de Irenarch. l. 1. . Their name shows why they were instituted: They are in their sessions quarterly to hear, and determine all Felonies, breaches of the peace, contempts, and trespasses. They are to suppress 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 soldiers, to punish rogues, beggars, forestallers, and engrossers, etc. to commit or bind over offenders to the Sessions, or Gaol; to take recognizances for the peace, etc. such a form says the Lord Coke of subordinate government for tranquillity, and quiet etc. as no part of the Christian world hath the like, if the same be duly executed. 
n 4 Inst. 170. suits.  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 Ass' shadow, yet as in some Countries the custom is to threaten they will have a London process for him, the poorest clowns will trudge to London on foot from the farthest parts of the North, or West, more miserably than Carrier's horses, and undo themselves (which is no hard matter) with one journey, rather than not discharge their full spite; 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 only as an heinous crime, but such as must by all means be born with them, inseparably inherent to them; something I will speak of that: I will make it evident that delay is more odious to the Law, then to those who complain of it, and that it bred from nothing else but the corruption without. We find in the Saxon laws not only one which fines the sheriff (for doubtless of him is the word gtrtfan there meant 
o V Ll. edu. sen. c. 5.11. ) who sentences not according to right, after the testimony of witnesses 
p ibid. Ll. c 5. , but also another; commanding the sheriff 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 month; 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, etc. 
q ibid. c. 11  like that of the twelve Tables, SOL OCCASVS SUPREMA 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 plainness 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 Ll. Aelfr. c. 37. ) in a few words. No man might change any thing but in the presence of the gtrtfan or Bailie, or of the Mass. Priest, or of the Hordre, or of the Lord or the soil, &c 
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' witness in the Folcmote 
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 c. 29. . It is a maxim in Law, Lex semper dilationes exhorret. The Law always as (Markam) eschews delays 
w 22 H 6.40. a.u. w. 1. c. 40, 44, 45. w. 2. c. 25. sta. Glou. c. 2. . The Barons of the Exchequer are commanded to do right to all men without delay 
x 20 E. 3. c. 2.28 E. 1. c. 10. , they are sworn to it 
y 4 Jnst. 109. . The common Law requires often that full and speedy justice (according to the words of those waits) be done to the parties 
z Na. Br. 23.182. 4 Just. 67. , all writs of Praecipe quod reddat, are, That justly, and without delay, he render etc. all Judicial Writs are without delay etc. When any Court makes delays, and will not give judgement, the Writ de procedendo ad judicium lies. The words of which are, Because the rendering of judgement of the plea which is before you etc. hath taken long delays etc. We command you that you proceed to give judgement thereupon with that speed which is according to Law and Custom. When execution is denied, the Writ of execution of judgement lies: by which the Justices are commanded to cause execution to be done without delay of the judgement lately given 
a Na. Br. 20. v. 2. J●s. 270, 271. . There was a Court raised by Statute for redress of delays in the great Courts, where yet the delays are not imputed to any foul play of the Ministers of justice. The words are, Because divers mischiefs have happened of that that etc. the judgements have been delayed, sometimes by difficulty, sometimes by divers opinion of the Judges, and sometimes for some other cause, it is assented etc. a Prelate, two Earls, and two Barons henceforth at every Parliament shall be chosen, which shall have Commission, and power of the King to bear etc. the complaints of those that will complain to them of such delays etc. and to cause the same Justices to come before them &c to hear the cause and reasons of such delays, which cause and reasons so heard by good advice of themselves, the Chancellor, Treasurer, the Justices of the one Bench and other etc. shall proceed, and make a good judgement etc. if the difficulty were so great to require it, they were to bring the tenor to the next Parliament, Where a final according (as this Statute) was to be taken, according to which the Judges were commanded to proceed to give judgement without delay 
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 V 1. , warranted says the Lord Coke, by the common Law, and ancient precedents 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 4 Just. 68 . There is a Court erected by Parliament for errors in the King's Bench, as it is called by the Statute 
e 27 El. 8. 3● El. c. 1. ; and for those who love no errors, another Statute commands, That judgement be given after the demurer is joined and entered, notwithstanding any defect in process, or pleading, other than such as the party demurring shall particularly express 
f 27 El. c. 5 . If things were truly looked into, we should find delays, and other indirect courses to proceed from the artifice, and unjust subtleties of suitors, of those who prosecute bad causes to infest and wrong other men; and from the cheating Mountebanks (a scum 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 solder the most broken title, by sleights and false daub, to the ruin at last of those who employ them, though not without some mischief, and infinite vexation of the adversary, and the injust Client having consumed himself 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 himself wholly up, till he is wilful, and at last like a Gamester swearing over his last stake, he loves every tergiversation, and struggles with all his power and cunning to avoid the disgrace, and loss of being overthrown; when he must see while there is any justice left it cannot be avoided: but when this blow hits him, though himself was the worker, and the motion began and continued from his own hand, than he implores the faith of God, and man. Hence is a never dying quarrel to the Laws, the justly deserved calamity is imputed to nothing else. If deceits, and wrong may not be secure, and happy, the Laws shall be cursed and blasphemed, like Tacitus his Gods, rather careful of any thing else then to provide (as he profanely) for our safety. But in these exceptions to the Laws the kindness would be wonderful, if the professors should go free (as it might) we meet with an old censure which at the first fight seems something, 
Counsellors.  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, seldom 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 prevail. 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 Empirics are employed about wills, and Conveyances, where if the words of their general precedent, or receipt (if they have any) will fit the sense of the party who conveys, 'tis well, and lucky, otherwise the patches of their own prove dangerous. And some ambiguities in clauses and expressions may happen which cannot easily be tried by any law before, nor can any Counsellor very often assure himself, 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 Civil Law, weighty, (because in every Art the judgement of the skilful of that Art is of great moment) and inducing at least probability (that is all) for if all were of one mind, they would make a moral certainty in these things 
g l. 6. deleg c. 1. . The Statute raising the Court for delays , makes it plain there may be, not only difficulties, but diversities of opinions, in the Judges too 
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 gins, For the avoiding of all such doubts, questeons, and ambiguities as have risen, and been moved, etc. in and upon the 3 and 4 of Edward the 6. 
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 Councillor should guess 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 Uncle, the Nephew, in Queen Elizabeth her time, the Lord Cook reports thus. After the said case was openly, and at large argued by the Council of either party in the Queen's Bench three days; the Queen hearing of it, (for such was the rareness 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 near of blood, which would be the undoing of both of them, Gentlemen of a good and ancient family: commanded the Lord Chancellor 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 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 himself, believe and apprehend truly 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 only 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 falseness to be stuck upon him for it: truth is said to be the adaequation of the speech with the species, and if here any mistake be, as there may, the falseness is in the notions, not in the man who speaks, and thinks he speaks truth. I know no reason, where there is no leading judgement to sway, why the professors of the laws 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 Mirror joins them) There is no law nor usage, and where there are no precedents 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 alleged, and proved by either party. The Councillor, when he is first retained, hears only one part of the matter, and that also from his Client, who ever puts his case with the best advantage for himself, after pleading of the parties when they are at issue, when they have examined witnesses in course of equity, or are descended to a trial in course of law, after publication and hearing in the one cause, and full evidence delivered in the other, then perhaps may the Council of either side dicern the right from the wrong, and not before. But then are the causes come to their catastrophe, and the Counsellors act their last part 
l Praef. ded. f. 6, 7. . Thus as there are diversities of opinions amongst the professors of the laws; 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 minds. 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 Counsels 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 Ceremony, 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 untied, (says 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 laws) how well they agree, the immortality of causes proves. Sick men can witness what concord there is amongst Physicians, what unlikeness of minds is there about things sacred, and Religion; where the differences are oftener tried in the field then in the Schools 
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 (asks the most learned Knight) is the Plaintiff 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 2 Inst. 28 , the French impost of 100 sous upon the Process, is thought injust, yet says the Republic, never was any so necessary in this Realm, where there are more suits then in the rest of Europe; which have sprouted chief from the time of Charles the sixth, when by Edict the ancient custom to condemn those in costs who had lost the cause, was cassed 
o Bod. Rep. 889.  By the Saxon laws he that denied 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 Ll. Ina c. 8. Ll. Edu. sen. c. 2. Ll. Cnuti c. 7. , such laws 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 prevail with all men. Nor can we expect any continual peace from vexatious suits, nor any security from delays & deceits in them, till a Christian generous honesty diffuse itself 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 sprightliness, Spain for its gravity, Germany for the arts, what clime is renowned for any such honesty: Unless the new Atlantis can be found again, and its Idea of a Commonwealth, the Magic Region of the Moon throughly discovered, and it lie 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 than I can say of my own knowledge, and I would lead no man's Faith where things are not plain and certain. Other causes of multiplicity of suits in these latter ages are observed by the Lord Cook 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 Baron's wars. Then as says 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 entreated than they ought to be, the peace less kept, the laws less used, and malefactors less punished than they ought 
q West. 1.3. E. 1. : Then the great men would not be justified, have and receive Justice in the Courts of Justice 
r Stat. Marle v. 1. . Plenty, dissolution, and dispersion of Monasteries, etc. Informers, concealers, multitudes of Attorneys, more than are limited by law are next made causes by him 
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 Attorneys, they are to be examined by the Justices, their names to be put into the Roll, the good, virtuous, 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 foreign, 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 inferior Courts. The 16. chap. appoints a limitation of Actions, gives them age and death, it allows in the common Action of Trespass, 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 kind, provides for the rights, and liberties of all men; for the quiet of their estates, and persons 
t 3 Car. , enough to satisfy 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 easy to hate then to show a cause, Non amo te volusi,— worse then beastly wilfulness sometimes must be allowed: and the mean, and contemptible malcontents are not more guilty of this immodesty, than 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 hear an old Physician censure the order of the Imperial, and Swedish battles: a m●er plain Captain, the Aphorisms of Hippocrates, 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 careful 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 believed in his own art is their maxim. We pray in aid, says Justice Saunders; when any thing falls out in our Law concerning other Sciences, and faculties. This is honourable (says he) and commendable in our Law; by this (as he goes on) it appears 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 general learning) other sciences than our own, but allow and commend them, as things worthy of commendations 
u Ploughed. come 124. v. r. 7.19.  Upon this reason was Huls (a Bachelor of both the Laws) sent for by the Judges in the time of King Hen. 6. to hear his Legick (as 'tis said) upon the difference of precise and causative compulsion 
w 7 H. 6.11 . Again, where an appeal 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 ●● H. 6.25 . They use to inquire of Surgeons concerning maihem 
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 Ecclesiastical Judges. (still there) This is the common received opinion of our books 
z r. 5. 1. p. 7 . and in another place, Though it be against the reason of the common law 
a V 4.29. . Our predecessors (as the Justices, Brown and Stamford) in things touching Grammar, have used to consult with Grammarians, and to pursue their rules 
b Ploughed. come 122, 127. and the books there. : This love of ourselves is the most dishonest of all others, an Empire in sciences is not often heard of, some studies may employ a long age, those who will be thought so sublime that they fill all places, beyond the Sun, and Heaven's 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 Laws of the twelve Tables with no great good luck, as he was met with, he shall be my example, how easy it is for him who will be at all to miscarry somewhere. He had read over he says the twelve Tables (which was something, his exceptions may seem the more reasonable) as eagerly as Plato's ten books of Laws. One would think he was pleased well enough with Plato's laws which he read so very eagerly, yet the Athenians and Polybius justly reprove them for vain laws, which no Nation of Greece could ever be persuaded to use 
c Athen. l. 12. c. 22. Polyb. l. 6. . The Laws of the Tables which dislike him were these: This de injuria paenienda SI. INJURIAM. FAXIT. ALTERI. VIGINTI. QVINQVE ARIS POENAE SUNTO which at three farthings the assis (it was no more) he says was trivial, and would deter no man from doing injuries. Some things in the Laws he supposes inconsistent, as in that of the Talio, SI. MEMBRUM. RUPIT. NI. CUM. EO. PACIT. TALIO. ESTO. The Talio, or like for like, was to be, unless he that did the mischief 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 debtor's body, being bankrupt, he charges as most cruel and horrible. The words are AERIS. CONFESSI. REBUS. Q. JURE. JUDICATIS. TRIGINTA. DIES. JUSTI. SUNTO. POST. DEINDE. MANUS. INJECTIO, ESTO. IN. JUS. DUCTIO. NI. JUDICATUM. AUT. QVI. ENDO. EO. IN JURE. VINDICIT. SECUM. DUCITO. VINCTIO. AUT. NERVO. AUT. COMPEDIBUS. QVINDECIM. PONDO. NE. MINORE. AUT. SI. VOLET. MAIORE. VIN ITO. SI VOLET. SVO VIVITO NI SVO VIVIT QVIEM. VINCTUM. HABEBIT. LIBRAS. FARRIS. IN DIES. DAT●. SI. VOLET. PLUS D ATO. TERTIIS. NUNDINIS. PARTIS. SECANTO. SI. PLUS. MINUSVE SECVERUNT. SE. FRAUD. ESTO. This which wills 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 says, SI. IN. JUS VOCAT. SI. MORBUS. AEVITAS. WE. VITIUM. ESSET. QVI. IN. JUS. VOCABIT. JUMAN. TUM. 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 remiss. 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 wears out both words, and ancient manners, in which the sense of the laws are comprised, he tells him the tables were composed three hundred years after the building of Rome, 700 years, or little less before their times, he desires 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 tells him that the sickness, named in the last Law (for there he gins) was no grievous sickness, such as might make it inhuman to cite any man. Morbus sonticus is the Law term to express 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 says, in the first law of injuries only lighter injuries were meant, besides the AS, anciently was a pound weight: for greater injuries the Talio was used; which he grants could seldom and hardly be done according to the words and meaning of the Law; but he says in that, The decemviri intended chief to restrain 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 material 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 (says 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 Public 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 perfidiousness of debtors might deceive without some grievous penalty, which went by these steps: after judgement the debtor had 30 days allowed him to procure the money, if he paid it not, he was delivered by the Praetor to the Creditor etc. yet might he redeem himself within 60 days, after three of the great markets he paid the score with his life, etc. The creditors (if more than 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 terror 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 do, lie, 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 sharpness of avenging offences is the discipline of living well and warily. These things (says Gellius) did Sex●us Caecilius discourse, all that were present, and Favorinus himself approving and praising him 
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 himself, will not think the law an easy study, that its height can be taken at a distance, oftentimes in other learning we go about till we meet a choice 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 extrajudicial opinions and conjectures of private men too frequent every where else) several Statutes, with the common customs make but one body, and are all to be read and known; whose bulk as it is not so ample, to weaken the firmness, or soundness of the constitution, or make the symmetry of the parts less admirable, yet cannot it be subject to the carelessness of the first fight, and let the eye be never so steadfastly fixed, I know not who can judge the Architecture of the Escurial by one piece, or perhaps upon the ascent of the first stair. The most knowing, Sir Henry Spelman says of our law, that it is perpetuis humeris sustinenda, it requires the whole man, revelation is of little 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 only, 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 Spalleto, that he could not only recite not only the titles of the laws, but also the whole body, yet he died in the thirtieth year 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 Earls of Mirandula, of the Scaligers, we are told admirable things, of joseph, 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 leisure 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 than 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 only to be feared, if haste, (as Livy of it) be improvident, and blind, what can ignorance be thought to see. Every man ere he gives his censure of Laws, aught to read them over from the beginning to the end, to look into them throughly according to that, In  est nisi tota lege perspecta, una aliqua particula proposita judicare, &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, seldom found by the words, abstractedly, and nakedly, but by the adjuncts, the matter, or circumstances. This is the  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 disadvantageous 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 rep. 4.124 Blow. Com. 19 . By Pittacus his law amongst the Greeks, allowed by Aristotle 
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 lawless good fellows would think all this very unreasonable, in a law only intended to punish the wrong done according to the grievousness of the offence. Since it is evident that mischiefs deliberately done (as they may say perhaps) with advice, and malice, are naturally less 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 privileged by it, as the Court in that place of the Lord Cook. His drunkenness is a great offence in itself, and extenuates not, but aggravates that which follows, whatsoever colourable reasons may be given, this boldness is rather tolerable in an Hotoman a stranger, than an English man. The law is the act of the whole body politic, and aught to overrule every part of it, to bind every man, the actual assent of every single man is not material, nor does the dissent of a single man disoblige, we are tied by our forefathers, their public submission to these laws (at their free liberty, and with their consent made 
h 25. H. 8. c. 21. ) their acceptance of them long since, binds us, unless the revocation be, by the same universal agreement, which I believe is not like to be had. As a most reverend Lord chief Justice, strangers by living here, do tacitly submit themselves to our laws, and forms of Law-making their grant and consent is involved in the consent of Parliament 
i ch. Iust. Hubard. rep. 271. . Much more of the naturals, and if all men's 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 will be impossible any old law should hand, or any new law take. Besides, all public authority (to which only the power of lawgiving belongs) would lose its reverence. As the Mirror. No creance, no belief is to be given to the vain voice of the people, 
The judges.  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 reasonableness 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 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 Chancellor and the Justices of his Bench shall follow him, so that be may have at all times near 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 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 4 Inst. 56 . They were more than 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 Council, and to give Counsel. As Mr. Crompton, they were to be demanded for the Law 
n Jurisd. 2. Postnat. 22, 23. ; a Statute more ancient than the former gins— All of the Council, as well Justices as others, agreed that the constitutions underwritten, &c 
o Vid. Stat. de Bgam. . And again, It is agreed by the same Justices, &c 
p Ibid. i. 6. . The Statute of Marlbridge says— For default another day is to be assigned according to discretion of the Judges 
q c. 13. Mar●b. , and discretion of the Justices, and the Common Law are joined 
1 c. 26. ibid., . The Statute of Westm. 2. for damages in appeals has— According to the discretion of the Justices 
s W. 2. c. 12 , in another place, Whereas the Justices in the plea of Mortdancester, have used to admit the answer of the tenant 
t c. xx. , the Statute 27 of Fines, is according to discretion of the Justices 
u 27. E. 1. . All the Judges of England gave their Answer to the Articles of the Clergy 3. Jacobi, which the Lord Cook calls Resolutions of the highest authority in law 
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 justices ought to be holden for Law 
x 2. Inst. 399. . In the Parliament 19 of Edward the first, Sir Thomas of Weyland chief Justice of the Common Pleas having abjured, etc. for murder. His wife and son Petition the Parliament, for a Manor which the Lord of the Fee had seized as Escheated, in which Sir Thomas had only an estate for life, jointly with his wife, but the inheritance was in the son by fine. There were summoned says the Record. as well the justices of either Bench, as the rest of the realm, etc. expert in the laws and customs, etc. The resolution speaks, Before the Council, etc. there being called the Treasurer and Barons, and justices of either Bench, it is agreed, etc. The famous case of convening Clerks before the secular Magistrate, was debated in the time of a Parliament of Hen. the 8. the justices, etc. being present, and ruled according to the opinion of chief justice Fineux a most reverend Judge 
y 7. H. 8. Kelle vay. 183. . Reasonableness of time for tenant at Will, discharged, to carry away his goods, of incortain fines of Copy holds, etc. is to be adjudged by the discretion of the Judges 
z Inst. 57.59. . Distresses, are by the Statute of Marlbridge to be reasonable 
a c. 4. . No more is said. The Judges have ever yet determined that reasonableness as they have ever (ordinarily) what is reasonable in other things, just and injust, right, and wrong, what are evil customs, and what not, according to the Laws, they have the use and customs of judgement, says a Statute 
b De Bigaem. c. 1. . Good reason then that they be Judges of that use, and those customs, They may claim this authority by a long prescription, it has been allowed them in all Parliaments, and by all Parliaments hitherto 
c V 1 H 7. 3.4.20. 3 Just. 3. . They in all the books do not only 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 find a book speak) By the chief justices Popham and Anderson, and by divers other justice's assistants to the Lords of Parlia. meant in the upper House. That leases to the Queen etc. against the provision of the 13 of El. are restrained by the same act 
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 Whitehall heard what could be said by Council in the presence of the two chief Justices, and of divers other Justices, by whom it was resolved 
e Rep. 11.1.39 El. . Here is an allowance of the latter, as well as former ages, whatsoever the change may be: let us change till we shall not know ourselves, if we retain 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 laws, have not been many, no not in very many ages, much stir there was, much disquiet ere they were had, or rather restored. Never any tumults all the Histories over to undo what was settled. I do not remember any other Law, named against it, but the Law of Wat Tilers mouth 
f From this day says Tiler (in London) all Law shall fall from Wat Tilers mouth. , which we can make nothing of: we hear of Kets Oak of reformation, nothing of his Laws. The Laws 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 heresy are and have been inveteratly spiteful, have more than once attempted to blow the Laws, and the Nation into the air together, according to that divine determination of the Jesuitical Oracle, that the innocent may be destroyed with the wicked the Wheat plucked up with the tares 
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 shall all have their turns, not one of them not yet perhaps traduced by them, as they are offended by it, if it keep their mischiefs from ripening, and be executed against them (though much more ancient) than 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 3 Jac. c. 1. . The Statutes of praemunire and provision etc. are abominable. Parsons the Jesuit, that fury of sedition, charges the Law of Cawdries case highly, and with the least dangerous Poniards 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, condemns our Laws and Courts, and the trial by twelve men, like Polydore Virgil's Ghost, in his words. He was of Crete, so he says, 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 bar; 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 Laws 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 Ambassador) attributes to himself authority to define, and determine even against the opinion of all the world, what Laws are just and unjust, as Dr. Marta. Besides the kiss of the blessed feet, he has the free faculty of making and abregating Laws 
i D' jurisd. c. 46. . Whence this authority is derived, some are not assured, they refer it to the spiritual authority with which the temporal is imagined to be indirectly given. Others speak plainly, that he is a temporal Monarch over all the earth, that he might receive appeals from Princes, give Laws to them, and annul those made by them. That ecclesiastics are to examine whether the Laws 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 chair, 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 well 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 will 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 faithfulness, and vigilancy, but there may be) I see not why this should be a blemish to the Law, unless it may be thought to favour murder or theft, because they are done, Laws 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 will not any where be either science, profession, or order left: and long ago, had this been heretofore allowed, there had been none of these left to demolish.  
The Writs of the Law, 
Writs.  of which I shall next speak, are said by those who are for the Becselenisme of the British antiquity to precede the normans: the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is used by Zonaras for an Epitome, or concise writing: a writing which contains the sum of any matter, it may go amongst the Graecobarbara 
l D. Spelnt. verbo Breve. : from the Empire it came to the Church. Those of Rome a long while have had their Apostolical Writs. In the Laws of King Henry the first, amongst the public 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 Ll H. 1, c. 13. , where they are first heard of. These Writs at the first were but the King's letters, the Monkc of St. Albans makes them the same. In the controversy betwixt William the Chamberlain, and Gilbert of Cymmay concerning the Church of Luiton. A certain Writ of the King (meaning Hen. the 2.) says he was brought, as a precept to the men of Luiton, to recognise the truth of the right of the Church, &c 
n Vit. Abb. 67. . Another place, has attached according to the law of the Landby the King's Writ 
o ibid. 143 . elsewhere they are called Letters, the Letters of the King, and of the Chief Justice are set down in this Historian, 
p ibid. 75.  who again in the Majority of King Henry the third says,— It was provided of the common Counsel of the Arch-Bishops and Bishops, that the Lord the King should have his Seal, and his Letters should run. 
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 ancient than the other is said. And of all recognizances, & of all pleas summoned before the Justices by the King's Writ, or of his Chief Justice, or from the chief Court of the King, 
r Hoved. 744. v. 549  in another place the Writs of King John then Earl 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, etc. who calling before him, etc. the Barons showed them the Letters of Earl John, and their tenor. 
s id. 735. s. 30.  A Writ with us, is a rule of Law, which briefly tells a thing, 
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 forms of them, as there are kinds of actions; they ought not to contain either falseness or error. No man is bound to answer without a Writ. 
u Fleta. l. 2. c. 12. l. 6 c. 35, 36. Brit. c. 84.  The Civil Law makes this necessary, it makes citation parcel of the Law of Nature. 
w C. de unoquoq. F. de re indiciar. etc. c. 1.  The Writs as Doctor cowel contain a summary and succinct repetition of the fact, which brings forth the actions: 
x Instit. Ju. Angl. l. 4. tit. 6.  well may the Lord Cook tell us they are so artificially and briefly compiled as there is nothing in them redundant or wanting: 
y Inst. 73.  and Sir Thomas Smith, Secretary of State, and Privy Councillor to Queen Elizabeth said, It was not possible perspicuously to comprebend so much matter in fewer words. Concerning the execution of Writs, the direction, returns, and process, etc. 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. 
Plead  In the next, it will not be impertinent to consider something of the Plead in the Actions of the Common Law, which whoso shall well consider, he shall not find them so horrible as some imagine them, nor the forms 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, than the person, etc. Every Plea is to be direct, not by way of argument, etc. 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 contain multiplicity of matter to the same thing; there must be certainty and truth in Counts, etc. the replication must not departed from the Count, nor the rejoinder from the Bar, etc. The Count must agree with the Writ: if time, order and form were not observed in these things, the Judge and the Jury would be entangled invincibly, and Suits would be endless. If we look on the Libels in the Civil Law, and the Declarations of the Common Law, on the defences of the one, and the bars of the other, on the judgements of them both, we shall find 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 Paral. 10 Dial. 67.  I will say no more of the Libel and Declaration but this; That the first exceeds the last very much, near a third part in length, things quite differing in nature, enough to encumber the understanding being brought in. I will only compare (yet not at large) the defence of this action of Injuries, of a less bulk than the Libel, and the bar in the action of the Case, after a tedious recital of that which makes little, of the malice, etc. of the actor, after a long prayer to be absolved, and that the accuser may be condemned in charges, stretched near to the length of twenty lines, where the Latin runs (as in all Laws it must) rather in a legal than 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 suspicion, 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, etc. farther on. How is this recital of the parents and their Catholic virtues, etc. pertinent, to make the party innocent, and the Libel malice. The ordinary plea in bar (comprehending the general 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 Attorney and defends the force and injury— Et dicit quod ipse non dixit, non retulit, nec propagavit de praedicto W. verba predicta etc. modo et forma quibus idem H. superius versus eum queritur, et de hoc ponit se super patriam, et praedict. H. similiter etc. He denies that he spoke the foresaid words, in the manner and form which the same H. above, against him complaineth, and of this he putteth himself upon the Country. What can be more brief and neat? the defence here is made in fewer words than are abundant, and to no purpose in the other. The Judgement in this action is five times the length in the Civil Law, of that of the common Law. He that shall find in some of the books, plead as he may imagine of a stupendious frightful length, if he look into them, will find, where a title has been many ways settling, many acts done, many conveyances passed, through which it is derived the case could not be shut up in a less space. That they are only formal, legal, orderly narrations, where nothing is superfluous, nothing impertinent. Those who would be taken for the fine wits, 
Terms of the Law.  men beyond the Harp of Orpheus, who can make the stones and posts dance to the jingle and tune of their Harmonious sentences bred in the shade, (who when they are out of the noise of the wrangling Schools, wonder at every man, and are wondered at as much, think 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 abhor the monstrous barbarousness of the terms as they speak. But if their Schools and Philosophy were tried by Tully's 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 affirm. 
a Cencil Tried 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. Lightness of dress, & false, & artificial hair, and decking is below the gravity and majesty of laws, substance is only to be looked for, simplicity and brevity are grace enough. There is a sweetness, a comeliness of neglect, what is more may abuse and deceive. Laws are not to persuade but command, Reason & Solidity are to be reverenced for their own sakes, we find 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, we retain many of the terms as much Saxon, (besides, our Laws as is proved, are neither derived from a Greek or Latin Fountain) this must be abominable to those that do not understand them; to those who whatsoever they know abroad are ignorant at home, thus must the pure Greek be barbarous to the modern Greek, the Latin to the Italian and others, (called so by Michael the Emperor to the no small displeasure of a Pope) the ancient 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 Germane is a mother tongue. I see says the most knowing Sir Henry Spelman, very many words, & terms used by the French, Italians, and Greeks', to acknowledge the Saxon Fountain (at this day unknown to the present Germans) and by the testimony of Conrade Gesner, the Saxon is said to be the most ancient of the Germane Dialects, and next approaching to the ancient Gothish, whose Manners and Laws, with their terms not yet antiquated we have drank in. 
b Pr. f. ad Gaess.  By the knowledge of this language of our forefathers (as Master Lisle) we may find out the Etymologies and names of our words now used, we may add of our Towns, Rivers, Hills; etc. Offices, Dignities, Magistrates, Royalties or Privileges of Manors, and of our Courts, most of which were of Saxon original, 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 ear, 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 o'er it cannot be outgone, and generally is matchless in) that it borrows less, and is more copious, & significant than others, which I think might yet be shown; for though time as it uses has made its alterations, there are words enough of use still to express ourselves in, without raising from the dead any of those which have been buried long ago and where there can be no progression, I know no reason why it should not be as lawful to restore some of the softest of our own to their birth, and honours which would quickly be 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 Greek or Latin, can in their own Idiom express, Creator, Saviour, Redeemer, Spirit, Trinity, Majesty, Divinity, Eucharist, Baptism, Cross, Passion, Resurrection, Temptation, Remission, Communion, 'Greed, Sacrifice, Prayer, Confession, Grace, Repentance, Regeneration, Humility, Faith, Hope, Charity, Zeal, Sanctity, Truth, Glory, Law, Justice, Peace, Honour, Nature, etc. with infinite others in the Saxon. The Saxon hath words for Unity, Deity, etc. for coequal, coeternal, invisible, incomprehensible, incarnation, ascension, descension, for Catholic and all such words (says Mr. Lisle) which we are now feign to use, because we have forgot better of our own which is much. 
c Sax. Menpres.  The ten Commandments, Lords Prayer, and Apostles Creed, are not beholding for one word, nor the Nicene Creed, both Creeds retain Christ, and one has Apostolican, not out of any want, for they have words of their own which signify the same things, (goe gmired is used for Christ, and Aerenrdac is Nuncius (Apostolus) a Messenger) but because the general custom of keeping these two, and common use have made them as names not well to be changed. If we look upon the translations of these in any other language, we shall not easily find the like. The Saxon Books sometimes take in the Latin, but when it happens seldom without necessity, as being to express such things as were neither known nor in use amongst the English Saxons anciently, as Sacerd a Priest, Sealme a Psalm, Calic a Calais, Eel Oil, Win Wine, Fie a Fig, Ymnan an Hymn, Leo a Lion, Draca a Dragon, etc. in such cases where it is lawful to infranchise Foreign words, though 
* V Scalig. Excerc. 294 297. 307.  barbarout. The tables compared with the latter Latin, will make it appear our Language alone has not changed, and that the terms of other ancient Laws are more obscure than ours; As Polybius, the best antiquaries could very hardly understand the articles of the first League betwixt the Romans and Carthaginians. 
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 Capitol, in memorial of the annual Victory got against those of Carthage in the first Paenic War, about 150 years 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 midst d. in the end of word s. and m. left out, etc. 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 Relics at Rome; however of the Roman antiquities, and this may be one of them, I will not suspect it, yet this is certain— The Laws of the Tables, the Fragments of them which now are to be met with, hundreds of years more ancient, come nearer to the purity of the best Latin by much, somewhere there may be found an obsolete term, but the stile is fare from this rudeness, and Grammatical enough, and I cannot tell whether the Roman speech at the time of the first Paenic War not much more than 150. years before Cicero could be bad. C. Navius one of the most ancient Roman Poets 
* Gell. l. 17. c. 21.  a Comicas vareo stipendia fecit— served in this War; in the 8. year of the Peace after this first War, and in the year 521. of the City, he presented his plays before the people. 
* See the verses ut on Scipio Gell. l. 6. c. 18. Sae the speeches, etc. of Coat, Scipio, etc. and others then.  His Epitaph made by himself speaks 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, near those times, the most excellent of all Comedians Terence, within 30 years 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 find 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 terms, the old year books would be as hard to be understood, as the older Latin. It may very well be thought the new terms might come short of the former, and not express with halfe that fullness what they shall be intended for; the terms of all sciences as is observed perhaps could not so effectually express the full sense of the matter in the purer Latin, if that alone will be liked. Dr. ●owel a most learned Civilian, in the preface to his Latin 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 forms plainly, and otherwise expressed would lose their native integrity: his example is in making or waging of Law 
e Prefat. . Some of them are of necessity to be used, as the words, Mayhem, Burglary, Feloniously, Murdered, Ravished, Exchange, Warranty, Frankalmoigne, Frank marriage, etc. and cannot be expressed by a way about, by periphrasis. No others never so soft and smooth can serve the turn; and who will take the pains, either from the Glossaries, or from the Saxon itself to be acquainted with them, will find them as significant as any words of art in the Greek, or any other Language, the Law lies in their force and propriety, they will find the learning of a particular Law unfolded, and understood in the term Affidare, Placita, Placitare, Nuda pactio, contractus, praescriptio, are slum, interest, executio, executores, certiorare, alienatio, with divers others may be met with in the Civil and Canon Laws; those which are not wholly used there in our sense, differing but little Guardia, guarantiso, wadium, Alovium, Bannomentum, Treuga, Forisfacta, Fidelitas, homagium, relevium, felonia, etc. in the fiends, and if calumniari be thought wrested where it is used to claim or challenge, so fare, that Dr. Cowel conceives it a blow given to Priscian, never to be forgiven: it is as much wrested in the proem of the Institutions of justinian, 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 than the former. The Law Imperial flowing from a Latin head professed by Orators, patrons, and advocates, who spoke no other language, our law of the Land acknowledging nothing less than such a beginning (as is said) & which will 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 days arrive at that fullness and excellency to comprehend and redress thousands of those wrongs which now we find remedies for.  
The decemviri employed about the Tables thought they could have comprised all accidents, they fell short in their account, all the books in the world, says Bodin, cannot comprehend every case which may happen; for after all the additions possible, it will be found that perfection of laws must be the labour of ages, and that experience is the best and only happy Lawgiver. So would there be the same length of time required for the new terms. Time is followed at the heels by corruption, and ere our descendants 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, will 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 years, it may be seen how quickly it altered, as since the reign 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 Latin) etc. So that I cannot yet find why the antiquity of our terms should be a cause of change. It is ridiculous to think otherwise. The Lawyer must speak the words of the Law: nor can the process, 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 manum consertum.  Cicero himself 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 etc.  
Now 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 etc.  
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 will illustrate only with the design to make it clear that this homeliness of ancient habit is not a rude fashion taken up alone by our Law. I will observe somewhat of the Civil Law out of the professors of it, that we may see our Laws only have not been censured, are not only subject to censure. Perinus in Justinians life runs 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, persuading the Emperor 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 says, Tribonian and his fellows were like cruel Chiriergions, who cut to the quick, and which he citys 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 will not quench any man's 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 work, and walking in the midst of the deep. The body of it than was confused, & of infinite extent says the Gloss. The Code, says Sis Th. Ridlye a Civilian, is a barbarous Thracian phrase latinised, such as never any mean Latinist spoke: for themethod it is rude & unskilful, where it departeth from the Digests, yet the knowledge of it is more expedient than the knowledge of the Digests, because it determineth neteers in daily use of life 
f View of the Civil and Eccles. law. . The Digest is said to differ but little from the best Roman speech, but what it has in words it wants in substance, as the same Knight, the learning of it stands in discussing subtle questions, and enumeration of opinions, in which there is more wit than profit. Again, this Digest or Pandect, as an old Gloss 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 subtly 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 Laws look upon that which is likely most often to happen) nor, as our Knight, was it possible, every moment new matter falls out, for which former Laws made no provision, which was the reason why the Code was set forth, and why the Athenticks, or Novelles followed. Being the Prince's resolution of doubts confusedly put out, as the Civilians abroad confess 
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 Customs of Milan, but without either form or order 
h Ib. View 69. , before the Cornelian Law of Jurisdiction of the Praetors, they were wont led away which covetousness or ambition, out of favour or spite, variously to give judgement, Changing and altering the laws they had set forth in writing. The Cornelian law commanded, 
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 Doctor's 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 numbered 
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. Laws 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 Assize, 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 Concil. Trid. 660. . He that puts out the Imperial institutions, says he has added the cases, or Themes as they call them of Cornelius Vibulanus, Having rejected the old as barbarous, and useless, 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 mark, nothing to the purpose, partly absurd, andridiculous. Till of late, there was never any gloss 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 Authentic 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 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, etc. 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 libel falls. Sometimes says a French Civilian of the Parliament of Paris, a Process is determined by contrary arrests, differing from others preceding, than which is pitiful, this clause is added to the Text of the arrest; Without drawing it to consequence, or the motive (I believe not always) is registered. France (says this Bodin again) bas more laws and Customs, more Process and suits then the rest of Europe beside, and more have been prosecuted in the last six score years, then in a thousand before, which have througed in more and more (as he goes on) since that Charles the seventh and his successors have begun to people the realm, with laws made after the mode of Justinian, with a long train of reasons against the form of the ancient Ordinances of the kings, and sage Legislators, he adds. Where laws are few and simple rather commanding then entreating and reasoning, Commonwealths have flourished to a wonder under them. Whereas others with their Gods, and Pandects in a few years have been destroyed, or troubled with seditions, or the mischiefs of Process, and wranglings immortal 
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 proceed everlasting 
o Angm. Scient. 691 . We may see (as this French man again) enough of these suits aged one hundred years, as that of the Earldom of Raise, so well managed, that the parties who made the entrance into it are all dead, and the Process 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 than ours. Where they are certainly ancient, they will seem 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. Forts for good men never revolted 
p Tab. c. 49 . Pauperies in the law, Siquadrupes pauperiem fecerit, etc. Should signify hurt or damage 
q c. 15. . Proletarius (a word which a Lawyer in Gellius takes to be of Grammar 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 public valuation of good was 1500 Asses, or one that did nothing for the public but get children 
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 says the tables) ex jure manum consertum mean, says he taught Grammar. A way of suing they signify, which he had never heard of 
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 cleared of trees growing in the Channel, or upon the banks, and hanging over from retae such trees 
t Gell. 11. c. 17. . This of the tables will appear as strange as any thing. QVI. SE. SI. ERYT. TEST ARIER LIBERI. PENS. WE. FVERIT. NI. TESTIMONIUM. FARIATUR. IMARN BYS. INTE. STABILIS. QVE. ESTO. 
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 terms, I have thought fit to insert into my Commentaries whatsoever I have learnt from the Lawyers and their books, 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 doubtless than the Haecceitas of the Metaphysics, 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 ourselves 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 another's business, more than Gellius ever knew, or thought of, where he blames another false, and strange signification of the word, which says he was inveterate, and got strength not only amongst the rabble, but in the Courts, it being ordinary to say bic illi superest, for he is the Advocate of such one 
w l. 1. c. 22, , near 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, venture a woman with child, or as Alciate a posthumus; fusiones public Functions. Whoso shall turn over the Laws of the Frankes Lombard's, 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 pass 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 policy and order the Empire of the Germane Franks & Lombard's rose, and moved, for however governments may begin, Justice & good laws assure them, give them vigour, and continuance, lasting violence had been a fire, which suddenly would have burnt their Trophies; these Germane Conquerors how fierce soever they seem in their first appearance (of all which might be said which is related of Mezentius, Dextra mihi deus, etc. Or the Quadi a part in that Eductis mucronibus quos pro numine colebant, the sword was their deity) spent the years of their entrance into their Provinces to compose minds, 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 sweetened 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 poured out to his memory. There is its honour due to antiquity, yet there may be met with in the laws of these people, (though they seem what Duke Bartas speaks of Marots verse, torn Monuments, and age worn 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 Earl of Arundel in his travels to Italy, and the Lord William Howard in his Government of Calais, although they understood other languages would not speak to any stranger but in their English. And that Cardinal Woolsey in his French Embassy 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 less 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 choler against some of the Profession, and indirectly I think then out of his own judgement is very angry at the Law, which he says cannot pass the Seas. It were wonderful if it should, who looks that neighbourhood alone should make Nations like the same things. I have shown 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 than the Civil 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 says can deny it) it is a sacred, both Thing and Title; our professors will not envy the learning of Brissonius his Lexicon, or his formulae so much praised; and it is confessed we cannot show any Terms of law like them, yet are ours to as much purpose; they interpret the words of art of our homebred Laws, 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 terms since, which according to the custom 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 show what the old French was by these words, soffrera, souccours, resceipts, Pees, truce, subgitz, forspris, nadgairts, etc. 
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 Laws, they cannot possibly be changed. I will 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 signify; 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 aid in a suit, and certainly was understood by some of the great Lawyers, Rigaude and Bignon being such as had the word been antique indeed, would not have been amazed at it. They were not confined within the knowledge of their own age only, what is much to Bignon's honour, Sir Hen. Spelman acknowledges himself owing to him for many things in his Glossary. guarantee is the same yet with our Warranty, Pleviner to plevin, give surety; saisine is yet seifin, rebutter to repel, as the heir with us is repelled by the Warranty of his ancestors. Larcin is theft, felony, robbery; fee demain, or domain, prescription; Escbet, rent, as we use them; nampt is our naam, half withernam a distress, briga (with which by this author in another place the professors of our Laws 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 only 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 tenors, the book so called, which very probably he never understood; in his Commentary of the feudal word in the word feudum, he writes thus: Stephano Pasquier a man of an excellent wit, etc. 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 foolishness in that book contends with malice, and the study to calumniate. Here is his own judgement seconded with the censure of that unclean beast Polydore, whofreely indeed (as is said) rails in that book against the Law; yet no where in it (I think) once naming our most reverend Judge Litleton. He calls 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 Laws 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, says the famous Clarencieux. The Lord Coke says, This is as absolute a book, and as free from error as ever was writ of humane learning 
y Pres. upon Littlet. r. 2.67. r. 10. Epist. , according to the Judgement of a Court before. Litletons' word will pass every where, ipse dixit carries things, as Master Fulbec. Litleton, is not the name of a Lawyer, but of the Law itself: more than can be said of any Civilian, one or other. Dr. Cowel blames his Civilians much, that shey were not only 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 foolishness 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, merely by guess, should as slightly condemn the Pandects, (full of contradictions, and needing exposition and amendment, as is before shown out of the Civilians themselves) whereas Littleton is as fundamental 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 only a bare collection of special cases, under their titles, or heads, authentic and binding, because it is made and composed partly of the customs of the ages before, partly of the judgements of Courts, and of the Statute laws without any controversy with any man, without any reflection upon any other law, upon any man's person or works (saving that once he says he had heard say, There was one Judge Richel who settled an estate entail with perpetual remainders, with that clause of perpetuities since used, but against law, that upon alienation of the eldest son, etc. his estate should cease etc.) merely aiming at the public good; which makes me think, here must either be a great mistake in the sense, or of the book itself: Litleton then was not Litleton now. The uneven ruggedness of the French will not suffer any man to be eloquent. Laws (as Cicero) ought to be be dear unto us, and to be prised, not for the words, but for the public profit, and the wisdom of the Lawgiver. Yet is not the stile of Litleton rude, but plain (as the best French than was plain enough, neither neat nor quick, as will appear by the Lord of Argentons style noted before, who lived in our Judge's age, and writ then) most befiting 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 shown from testimonies of the side of the old glosses) I will reply but this, it should have shown how, and where; otherwise this is a general 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 appeal to those who know him. It is a childish impotency of the mind, out of vainglory to calumniate illustrious personages, fare enough either from honesty or discretion. The haughtiness of Pompey to reign 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 Alexander's 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, than the Flavian, Helian, and Hortensian, the Honorary Law of the Praetor: the laws of the people called Plebiscita, the decrees of the Senate called Senatusconsulta, the law of the Magistrates, and customs, the laws of the Princes from the law Royal, the opinions of innumerable Lawyers, many of which are recited by the second Law of the original of the Law: their volumes were huge, says the Emperor 
z Proaem. Instit. 5. . There were as the gloss 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 capaciousness of humane nature. Out of all these were the Pandects composed and digested, which are well digested; but (as is said) the Code, and the authentics 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, enclosed in a dozen or two of small volumes, exceeded in the quantity by the present Imperial laws, hundreds of times over, the foundations of it, as of all just and civil Laws, are the laws of God, of nature and reason, and of Nations: as Dr. Cowel, Our Statutes and Customs are derived (as all just laws else, and consentaneous to reason) from the Law of nature, and of Nations 
a Inst. jur. Angl. 25. . And again, The laws 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 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 laws might come from Rome to the Saxons with their Religion) There he speaks thus: After I bade spent some years in the comparison of these laws, (viz. the Common and Imperial laws) I found the same foundations in them both, the same definitions and divisions of things, rules plainly consentaneous, near the same constitutiom: the difference only 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 says, He has in some towardness collated the cases of both laws &c. to show 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, says he, might;) they might be attained (in a manner) with one pains. I make agreement no argument that laws are the same, where they have (as 'tis said) the same foundation: but it may be an argument, that where they agree in the foundation, where the constitutions are near the same, where there are the same definitions and divisions of things, they may be digested into a method alike. Not to look upon the twelve Tables, we may find a plain resemblance which I attribute to the foundation upon the Law of nature and Nations, in these Laws. The Cornelian de sicariis & veneficiis, of murder, poisoning, firing houses: de falso, of forgery; of all kinds of falsity: Majestatis, about taking arms, raising forces etc. the Cornelian de injuriis, and Aquileian de damno, of wrong, trespass, damage, battery done; the Duilian, Maenian, de Coitionibus; the Julian de vi of public and private force; Majestatis of high treason, to which the Lutatian of public force may be added; in the digests and clswhere, are Laws of descents, rights and possession, covenants, and obligations, against deceit in bargains, theft, receivers, breaking of prison etc. of 
* Code 11. nou. 3.5. Collet.  Churchmen, and their possessions, etc. 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, public and private offences, Writs, Courts, pleas, etc. may be listed in order in our Law, as well 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 Attorney general heretofore, where our Law is so naturally methodised, and so happily, that not only no law else, but no Science whatsoever can excel it for the order: though I know want of method in Laws is no solid objection, nor so considerable as to need an answer. The illustrious Viscount in his Aphorisms of the Law is of this judgement, speaking of regeneration, and new structure of Laws, he would have (he says) the words and text retained, and things orderly done. Yet (he adds) 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 Schools, and a method, than a body of commanding Laws 
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 fare off from use: the only 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 several Terms of the years 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 than 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 carelessly. 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, etc. so that there can be no reason for these complaints. These objections only show a willingness to hurt, but are short of doing it. 
Principles of the laws.  Laws are to be tried and examined by their principles, if there be any thing unsound there, and dishonest, too cruel and inhuman, they may justly be taxed. A Doctor of both the Laws speaks thus of the Canon law: The Canon law is nothing but an beap of ingenious precepts of avarice, under the show of piety; few things in it are directed to religion and worship, many are contrary and repugnant to them; the rest are wranglings, strife, business only 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, dispense with oaths, with the law of nature, enough (as he) to make of the house of prayer a den of thiefs 
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 Laws allow directly the same things, against God, nature, and reason, which ours forbidden; as Incest among the Persians of the brother and sister was more than indifferent, communion of women praised by Plato 
e Repub. 4.  & amongst our families of love, lending wives amongst the Spartans, Polygamy amongst the mahumetans and others; with the unnatural love of boys, 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 Spartans, as Gellius calls them, and Egyptians, and sleight of the hand, from the greenest youth was honourably allowed by the Laws of Lycurgus, not for base gain, but for discipline of war (as he) all their policy was directed to the wars. Piracy, and robbery have been glorious, no where heretofore amongst the Grecians in disgrace, says Thucydides— This is manifest by some that dwell on the continent (says 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 thiefs 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 Thucyd. l. 4 v. Justinum l. 44. . Private robbery the Romans suffered not, but publicly no men rob 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 Cottage 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 Sect. 18. . The Lord had power of life and death over his slave 
h Insl. l. 1. gloss. servitus. . The Petronian law restreins from forcing them to fight with beasts at their pleasure, not observed, more than the Edict of Nero which deputed Commissaries to hear the complaints of slaves. They put them to death for trifles; Vedius Pollio threw a slave to be devoured of Lampreys (which he fed thus) for breaking a glass 
i Dio. l. 54. . If a Lord was murdered by one servant, it was the old custom, says Tacitus, to condemn 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 14 Ann. . Where law settled quietly, without any awe upon those who are to receive it, has too many of Draco's Rubrickes of blood it is terrible. Our laws are not cruelly bloody, 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 Ll. Nol. 1. Ll. Cnuti. 1 2. ve. , a command not forgot, it has continued with the laws; Godlike mercy ever saving more than justice strikes. Wisdom and mercy, justice, and grace are joined 
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 etc. In those articles against the most worthy Earl 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, etc. 
n Additam. Par. 153.  This is more visible by the law since. As the Lord Cook, 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 seizure can be made before attainder 
o Inst. 36, 48 Mag. Char. c. xxii . Abjuration, challenges to the Jury, Clergy were no small 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 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 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 general pardons, though the party plead them not, 
r Dy. 28.  and there, if all Felonies under twenty shillings be pardoned, the Judges ought to dismiss him to God (as the Book) who is indicted where the Theft is under that sum. The Justices heretofore knowing the Felon to be a Clerk, who took himself not to his Clergy, would not give Judgement to hang him. 
s 22. E. 3.  If the Prisoner for Treason or Felony has any matter of Law to plead, he is to be allowed his Counsel, after the plea of not guilty, where it will not be allowed, the Court ought to be instead of Counsel 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 behalf of the Prisoner for his benefit. 
t 3. Inst. c. 2.  The Judges as in Humphrey Staffords case is observed, 
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 Cook) until 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 plaintiff has no Title, no cause of Action, Judgement shall not be given against the defendant 
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 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 2. Just. 54. . No man is to be imprisoned but for a certain cause to be shown 
z ibid. 53. , to be contained in the Warrant etc. the conclusion of which ought to be, and him safely to keep, until he be delivered by law, etc. As the fift of king Henry the fourth. None are to be imprisoned but in the Common Goal, to the end they may have their trial at the next Goal delivery, etc. As Justice Fitz Herbert, to keep a man in prison without coming to his answer is against Law 
a Na. Br. 118. c. . The Abbot of S. Albans would not make a Goal delivery at the time, to save costs, he lost his Franchise by it 
b 8. H. 4.18. . The Abbot of Crowland forfeited his Franchise for detaining prisoners after acquittal, and their Fees paid 
c 20. E. 4.6 , such detaining after the Habeas Corpus is false imprisonment 
d 2. Just. 53. , there are many provisions for those who are grieved in these cases, by Indictment, Writs, and Action 
e ibid. 55. . Though the law requires safe and strait custody, that must be without any torment, or pain to the prisoner, relief may be had against cruel and hard usage of a Gaoler 
f 3. Just. 35 91, 92. . The prison, as Bracton, is not for punishment but custody. A certain Priest arraigned 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 Fish. Corene 432. ; and as to irons (says the Lord Coke) there is no difference betwixt a Priest and a layman 
h 3 Inst. ubi sup. . No felons coming to answer in judgement ought to be charged with irons. 
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 administered 
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 public war was enjoined a penance of 40 days 
l Concil. sax. 383. . By the Common law killing by misadventure, or in a man's 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 remains yet. If he that kills by misadventure escapes, the Town where the Fact was committed is to be amerced 
m Fitzher. Corone 302 2. Iust. 148, 149. . So where the kill is se defendendo 
n 2. Inst. 315. . men's lives are so precious in the Law, that the death of a man cannot be justified, the Defendant in an appeal cannot justify the death se defendendo, but must plead not guilty 
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 kill to be upon inevitable necessity 
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 years killed another infant and hide him etc. the opinion of the Justices was, that he should be hanged, but execution what respited, etc. 
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 Corove 304.320. v. 339.402, 421. , so where a man died suddenly of a Fever and was buried without viewing by the Coronour 
s ibid. 329. , a Lunatic kills a man he must sue for his Charter of pardon 
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 ministry of the Laws; I say, where justice do strike, it is with an humane severity; the offender with us does not carry to the place of execution his own Cross; 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 darkness, where malefactors necks were broke, by tumbling them headlong from the stock of a tree there fastened in the earth. No rack or brake where the party innocent oftentimes was tormented till he accused and condemned himself, being hoist upon it, and fastened with ropes to it, his hands at the upper part, and feet at the nether part; his joints were not only 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 john Fortescue Chancellor, or rather chief Justice of England writ in commendations of our Laws: where he maintains that all tortures are contrary to them. There is no Law (says the Lord Coke) to warrant them in this land. Although there were no full 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 illegal 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 Earl of Salisbury, The finger of God, Thereby (so he tells Garnet) the Lords had some proof of matter against him; which must have been discovered otherwise by violence and coercion; a matter (says the Earl) ordinary in other Kingdoms, but forborn here etc. 
v Proceed against the Gunpowder Traitors.  He adds, His Majesty (King James) and the Lords were well 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 stairs, whether the malefactor was either dragged, 
* According to Tacitus, Aun. l 5.  and cast into the Tevere, (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, , clad in a coat daubed on the inside with pitch and brimstone. We have no sawing asunder from the head downward; no condemning to a Fencing school, to beasts, mines, or metals; no banishment, deportation, no most barren Gyaros to confine men to, not so much as relegation is known in our Laws; No empaling, no wheel. No deflowering Virgins by the Hangman, before they be put to 
* Quia in auditum, says Tacitus, trium virali supplicio virginem affici. it had been far less to have broke the custom, 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 etc.) the Merchant saving his Merchandise, the villain his wainage 
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 do 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 lies; usury is not to run against the heir within age 
y Stat. Mert. c. 56 , (among the Saxons it was unlawful,) 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 go on, I should, as we say, not only 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 portray them, so that they may be a little, and a far off seen. A strong vein of reason runs 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) pair 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 than this, that we should be done to as we do. But how unwillingly the Law descends to these last remedies may be seen, by the many favours before recited, allowed to the most heinous offenders, whom yet it does not pity, but the frailty of man in them. Only is the innocent and honest man beloved, and safe (as he only ought to be) in the law. He who shall transgress the Laws (which is not a single impiety, such one as much as lies in him frames a new Commonwealth to himself, and new laws, as if he had power to free himself 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 breaks through all those bars which no law can prevent (religion and conscience must give the check) if he fall, or break his neck by the way, the Laws are not to be complained of, the calamity of his ruin is merely to be imputed to himself, though sometimes the punishment may be thought severe, it is never new, nor inhuman, 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 Gaol. Their wives and children to be turned out of their houses, those with their lands to be seized into the King's 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  conspiracy under the pretext of Law, by indictment of treason or felony, and legal proceeding thereupon sought to do the greatest injustice by false conspiracy, to shed his blood, who afterwards is lawfully acquitted 
z 3 Inst. 222 . Subtilty which wrists a manifest text of the Law is condemned as unrighteous 
a Hub. 125. . So is cunning and malicious interpretation of the Law there. He who wrists a text of the Law, though to maintain truth, does against distributive justice, says the Lord Coke 
b r. 10. praef. v. leg. non dubium. , 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 15. E. 2. 3 inst. 222.  If the party acquitted (that we may see how many several ways the law provides for the innocent man) bring his action against the Conspirators (as he may) he shall recover answerable damages, all practices to subvert justice, truth, and innocency are punished by the law; he that will profess himself the advocate of wickedness and injustice, and declaim 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 go together 
d Ll. Cnuti. c. 6. , perjury was punished by the realsfang or pillory; the punishment of perjury was too to quit the Country, after forfeiture of moveables 
e Fleta l. 2. c. 1. , then fine and ransom 
f Brit. 38. , Now forfeiture of a certain sum, and imprisonment 
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 King's Council for ever, to lose his lands, rents, goods, and their profits for a year, after to be punished by discretion etc. It came to fine and ransom. No great Officer, Justice, nor public minister, by a Statute shall take any gift, or brocage of any person who hath to do before him, 
11 H. 4.  under the penalty to forfeit the triple, lose his place, to satisfy the party etc. to offer a bribe was an offence punishable by the Common law. Extortion is another great misprision, punishable by fine and imprisonment 
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 Moor's kindness, and think it too much that a man should lose his life for crimes under murder, as for theft, etc. for which anciently loss of a hand or leg, or banishment were in use, 
i V Concil. Berghamsted Council 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 Galleys is thought by some the only 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 (says Haveden) ut siquis in furto vol latrocinio deprehensus fuisset suspenderetur— to hang the thief 
k Hoved. Sav 47 1. in H. 1. , with whom Wigornien sis and Rad. Niger agree after in the latter end of the reign of king Henry the third, we find a thief who had stolen 12 oxen beheaded 
l Ma. Par. continat. 1005. , Capital punishments have not only been in use against homicides, but other transgressors too, and amongst those who worshipped God rightly. We meet with no divine precept before Judah, which makes whoredom worthy of death, yet when he is told, Tamar thy daughter in law bathe played the harlot, He answers, bring her forth, and let her be burnt. We may proceed, says 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 in b●l. 14. . I will not dispute it whether there be more mercy in death 
* v eadm 94 , cutting off legs, etc. or in the Galleys. I believe the boldness 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 than can be spoken) terrible.  
But it is thought horrible and grievous that a man's 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 ancient law of the English. Nay for lesse (by the ancient law of the English I may say so) King Aethelstanes laws begin with thiefs and speak thus. First that man spare no thief (so I render it according to the words) who in the manner, having in his hand taken is above twelve years old, &c above eight ponce 
n c.r. , either eight pence or twelve pence. The law is full of equity, this king gives a ram, etc. 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 Assize 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 keeps 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 stolen in estimate rises to more than many twelve pences. That title of Cosross 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 Palace, or Hall of the king, (the forfeiture of the breach, being the loss 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 Ll. Ina. c. 6. Ll. Alfr. c. 7. Ll Edu. 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. Everymen house as the law since expresses it, is to be his Castle. He who infringed the freedom, or liberty of the house called r●m soon by house breaking forfeited all he had, and his life was to be at the kings will 
p Ll. Edm. c. 6. , Grith, or frithbrice were the terms for breach of the peace. King Cnut in his laws, first wills, that God's peace and the peace of the Church be kept, than his own 
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 thiefs 
r c. 8. . Amongst the Prerogatives of the West Saxon kings, are these, breach of peace, & house freedom 
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, etc. 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 quietness of the people. Which used to be the title of Parliaments 
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 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 r. 9.50. . Every affraying as Mr. Lambard, or putting in fear is breach of the peace. The laws do not only 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 Chancellor, Lord High Steward of England, Lord Marshal, etc. Justices of the king's Bench says Mr. Lambard, had authority enclosed in their Offices for the conservation of the peace all England over. The Justices of the Common pleas are said to be conservators only in special places. The Master of the Rolls 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 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, etc. By a Statute of King Henry the 6. The Justice must have Lands, and Tenements to the value of xx. l. by the year, 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 jaws of all Nations civil, Religion, and the Priesthood have their privileges and honour so no laws ever favoured piety, and the Church more than 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 only as short and imperfect, but as unjust, to be detested by all the faithful 
y Becket in Ma. Par. 101. ; Such as without a saving the honour of God, and of holy Church 
z Hoved. Savil. 492. , are not to be sworn to, against the faith, as the Bishop of Rochester, may be thought to mean. 
a Graft. 1187.  The exemption of the Clergy 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 than ten thousand Beckets, durst not make it of Divine Right, Jure Divine valde conform, 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 murders 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 Kell. 7. H. 8.185. . The Saxon founders, and indowers of the most of our Churches, left neverdying 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 Ll Aethelbertic. 1. . King Jua hath Laws, concerning the life of the Clergy, Baptism of Infants, hallowing the Sunday: The Churches sceat or part (very unjustly translated Church seed) Sanctuaries, striking in the Church 
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 Tithes, the teoꝧe tenth 
e Ll. Aethelst. proem. . So have the King Edmund and Edgar 
f Ll. Edm. c. 2. Edg. c. 2.3. . The same Aethelstane concerning Church-Burglarie 
g C. 5. . Edmund again concerning repair of Churches 
h C. 5. . King Cnut for the peace of God and the Church 
i Ll. Cnut. c. 2.3. . The Council of Aenham a Lay Council, Commands that all men defend Gods servants, and honour them 
k Ch. 30. ll. Cnut. c. 4. . As much respect was to be given the Priest as the Thane 
l ibid. c 2. . The head of the Mass Thegne, and of the Worldly Thegne or less Thegne are valued alike 
m Ll. Aethelst. Be ƿerum. . What privileges the Church enjoyed 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 Church's 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 Concil. Aenh. c. 9 . Let peace be binnaen ƿagum, within her walis 
o Ibid. . Magna Charta gins, We have granted to God, etc. That the English Church be free, and have all its Rights and Liberties whole, etc. of which the reverend Commentator says thus, Ecclesiastical persons have more, and greater liberties than others, to set down all would take up a whole volume, &c 
p Mag. Ch. 1 Com. 3. v. 2. R. 2. c. 6. R. 2.  They have this privilege, not to serve in person in War. To be quit of Tolles, and Customs, of Average, Pontage, Paviage, etc. 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 King's Ministers. They are discharged of purveyance for their own proper goods. No distress can be made in the ancient endowments 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 recognizance at the day. Nolevarifacias lay at the Common-Law, if the person had nothing but Ecclesiastical goods, etc. 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 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 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-public, 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 ourselves, and we cannot honour them more, then by the imitation of their plain honesty and constancy (it is rather Tyranny over others then presumption, to yield 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 virtue perfumes the grave; it ennobles and by example sometimes refines the posterity, leaves a taste of Immortality behind it: the Great man's 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 ourselves, over our own passions, private interests, pride, vainglory, rashness, levity, is the most glorious, and most honest victory, such a Conqueror 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 than those Egyptian 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 c. 30. . By the Statute of the Confirmations of the Charters, the Magne Charta, and that of the Forests, There is a Grant (so are the words) Not to take aids or Subsidies but by common consent, and for the common profit 
t c, 5, 6. . And again there in the Chapter of the Maletot. 
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, etc. without common consent, and good will. By the Statute, called the Tallagio non concedendo, No Tollage, nor aid was to be set or levied but by common consent 
w 34 E. 1. . All new Offices with new Fees are within this Statute 
x 2 Inst. 533. . No man is to be charged by any benevolence, which is condemned by a Statute, as against the Law 
y 1 R. 3.2. . He who judges things impartially must confess the English ever to have been the most happy and most free of all people, while they enjoyed the benefit of these laws, 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 itself, nothing without themselves, so some there may be rather for a Sect, than the truth, more willingly following a great name then reason, choosing number rather then weight and worth, carried away with authority as they call it, such as will yield 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 laws. In the Council at Oxford, of the English and Danes held in the sixth year 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 Latin Tongue; and for the equity of them (those are the words) to be kept as well in Denmark, as in England 
z Mat. West. flor. Hist. l. 1. 311. Wigorn. 311. . Although it is said, the English laws 
* Gloss. ver Lex. Dan. . were silent, spoke not, in the times of the Danes, which might generally be true; yet in the reign of of this King, it was otherwise, as appears by his excellent laws of Winchester full of piety and justice 
a Concil. saex. 569. . These were the famous laws observed by King Edw. the Confessor after, many of the laws of K. Aetheldred, many of those of the renowned Council 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 says, He bade vowed to govern the Realms subject to him justly and piously, and judgement in all things to observe. At his return, says Malmesbury, he was as good as his word, For all the Laws by the ancient Kings, and especially by his ancestor 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 Malm●b. de Gest. Reg. l 2. c. 11. p. 75. . How much the ancient Englishman loved and prised the Common laws is evident by what has been before said concerning the Magna Charta, and the settling them. And it is more evident by the odiousness which subversion, and the subverters of the Laws have lain under in all ages. There is a Writ in the Register (as before) to take the impugners of the Laws, and bring them to Newgate 
c Regist. 64. . In the complaint of the Bishops of Henry the thirds reign, against the strangers Poictovins his favourites, are these words, As also because the Law of the land sworn and confirmed, and by excommunication strengthened, (this was the Magna Chaeta) together with justice they confound and pervert 
d Ma. Pa. 396. . The Earl Martial Richard complains of these Poictovins to this King, as men who impooy themselves to the oppression of the Laws and liberties. 
e ibid. 384.  Stephano of Segrave, the chief Justice is charged in another place, with corrupting the laws, and introducing new ones 
f ibid. 392. . The same King is told by those Bishops, That if the subjects bade been governed according to justice and right judgement of the land, etc. those troubles had not happened. 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 etc. falfely, deceitfully, and treasonously the Law of England subverting 
g 4 Just. 199.  The Articles against Cardinal Wolsey (before mentioned) begin, Hath by divers and sundry ways and fashions committed high and notable and grievous offences, misusing, altering, and subverting the order of the laws. 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 Exeter; the Earls of Oxford, Northumberland & Shrewsbury; the Lords Fitzwalter, Rochfort, Darcy, Mounjoye, and Sandys etc. all which, as those others, taking subversion to be so heinous an offence, must needs be imagined to esteem the Laws highly. Lewis of France, invited hither by the Barons in King John his time, in the entrance to his new principality is made to swear to restore to every of them the good Laws 
h Ma. Pa. 282. . As others, to maintain ad keep the institutions of the Country. 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 customs of the Realm, neither violate the Privileges thereto belonging 
i holinsh. 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 wariness is had: one of the conditons is.— That the Duke shall change nothing in the laws, but shall conserve all the customs of England 
k Comd. Eliz. 338. . The Lord Treasurer Burleigh, the Earls 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 An. Dom. 1363.  speaks thus: The good, ancient Laws, customs and Franchises of the said Realm. The second of Richard the second 
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 customs etc. be bolden 
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 Highness shall not let etc. 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 etc. 
o 4 H. 7.12 c. 9  The 32. of King Hen. the 8. says, The King calling to mind etc. that there is nothing within this Realm that conserveth loving subjects in more quietness rest, peace, and concord, than the due & just ministration of his laws etc. The first Parliament of King James has— The fundamental and ancient laws (which this King, as there is said, expressed many ways how far he was from altering or innovating,) whereby &c: The people's security of lands, live, and privileges, both in general and particular, are preserved and maintained; and by the abolishing or alteration of which it is impossible but that present confusion will fall upon the whole State etc. 
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 3 Car. Reg. . If public authority, authority of Parliaments, authority of the English Nation in all ages, can make an authentic and valid testimony, by that authority we see, our Laws are facred, pious, good merciful, and just; their ends aim merely at the peace and happiness of the Nation, the only ends which Laws should aim 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 will add 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 laws, our law plain and without dress as she is, is the most noble Lady, replete with all justice, moderation, and prudence etc. As Sir Thomas Smith, the people here are accustomed to live in such sort, that the rich have no more advantage than the poor. Dr. Cowel a most knowing Civilian, very judicious in our laws,— says of the two Benches, They decide all causes religiously according to the rescript of the Common law 
r Justit. Angt. 24. sect. 2. : a most learned Knight of our age praises highly our forefathers for their virtue abroad, and their exquisiteness of counsel and judgement at home, amongst whom as he (in Livies expression) The commands of the laws were ever more powerful than those of men, and justice was administered with that sineerenesse and judgement, you would believe it to have proceeded from Papinian himself, of all men who are, shall be, or have been the most skilled in the laws 
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 foreigners, but by the effects, long continuance here, or acquaintance, and seldom so, strangers every where for the most part desiring to take notice of every thing else, rather than of laws. The French man who wrote the estates of the world, discoursing of the charges practised in other provinces in his time, says, But the liberty of England is marvellous in this regard, no Country any where being less charged 
t Les Esta. etc. 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 less violence used upon the people, it is England 
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 P. Mat. Lon. 11. . If we look upon the Peasants of France flayed alive, the Villano, or Contadino of Italy, either under the Spaniard or Venetian. Where Fruit and Salads 
* Sir Rob. Dalingtons Survey of Tuscany. , nay, and Ass' dung all things whatsoever pay Tribute but men's sighs, where one word gabelle is of the largest extent, and more used than all the other in the Languages (& leave out the chains of the Turkish Galleys, and the most sad thraldom of those Natives of America under the Spanish Conversion of the newest Fashion, Baptised but as Bede says of the Protomartyr Alban in their own blood) we shall find 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 than the Yeoman in Italy, France, Spain, 
Dr. Heyl. Geegr.  or Germany (I may say for some of them more freely, more plentifully than the Gentry of either Spain or Italy) being able to entertain a stranger honestly, diet 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 than this now enjoyeth 
x 3. Jac. , and whatsoever benefits we have received, we own 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 virtues, 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 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 ranulph of Glanville, we shall not find one of these Justices but he was a Bishop, a Peer, or at least of the Nobility, of one of the illustrious families. Aubreye of Ver Earl of Guisnes high Chamberlain of England, Justice, and (as some) Portgrave of London, father of Aubreye of Ver, the first Earl of Oxford (which family so Mr. Cambden justly, is the most ancient, (fundatissima familia) amongst the English Earls) as Matt. Paris, was ready in the variety of causes, exercised in them 
a In Sitph. reg. . And of Geoffrey Fitzpeter. Then died Geofry Fitzpeter, Earl of Essex, and Justice, of great power, and authority, a generous man skilful in the laws, allied either by blood or friendship to all the great men or Barons of England 
b Id. in Johrege. . Henry after king, son of Henry the second, was chief Justice of England. By the Statute of 31 of Hen. the 8. 
c c. 10.  which ranks the public great Officers: The Lord Chancellor, 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 says, 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 Earl, 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 citys him, says, Earls, or Barons are not to be amerced, but by their Peers, 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 1. H. 6, 7 v. D. Spelmver he Baron Scaccer. . All Judges says (the same Mr Selden) were held anciently as Barons which appears in an old law of Henry the first, which is— Regis Judices sint, Barones Comitatus qui liberas in eyes 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 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 judges 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 part. 1. c. 4 . There sits the chief justice of our Lord the King, first after the King, etc. and the great men (or Barons of the Realm) most familiarly assistants in the king's secrets. By the decree of king james 
g 28. Mai. 10. Jac. reg. . The Chancellor and under Treasurer of the Exchequer, Chancellor of the Duchy, chief Justices, Master of the Rolls, chief 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 Baronet's, &c. there the degree of the Coif, is called an honourable order, the Sergeant is called by Writ— The words used to be, we have ordained you to the state and degree of a Sergeant at Law. Vos and Vobis in election of Sergeants, and summons of Judges to Parliament (ever applied to persons of quality) are used. One Statute speaks where he taketh the same State upon him 
h 8 H. 6. c. 10. . And another, At the Creation of the Sergeants of the Law 
i 8 E. 4. ●, 2. . Which is observed ever to be applied to dignity 
k Rep. 10. Epist. . The Patrons of causes called (pleading advocates, and Narratores; Counters of the Bench or Prolocutors of old, as Paris) 
l Hist. 516. vit. Abb. 142.  all Lawyers were anciently of the Clergy; And those now who are so curious for neatness of that order, may thank their predecessors for that rudeness which is so unpardonable by them in the Latin of the Law. No Clerk but he was a Lawyer (says Malmesbury in 
* Lib. 4. Ed. 1. Savil. 123.  William the second) we read that Mr. Ambrose the Clerk of Abbot Robert of St. Albans 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 Vitae Abb. St. Alb. 74.  Adam of Linley, is said to be Abbot John the 1. his Counsellor in all his weighty affairs, a courteous man, honest, and skilful in the laws 
n Ibid. , after Archdeacon of Ely, (for most of them held Church-livings;) he was after special Counsellor and Clerk, says this this Monk) to the Archbishop of Canterbury, Stephano. John Mansel of whom we read so much in the History of Hen. the 3. is called the King's special Counsellor and Clerk, as much as Attorney general since 
o Ibid. 142 . Hence it is that the ancient habit of secular Judges was the same; and yet is with that of the ecclesiastics 
p D. Wats. Gloss. ad Paris. . William of Bussey Seneschal, and chief Counsellor of William of Valentia would have loosed (says the same Monk) the stays of his Coif, to show his Clerkly tonsure, his shaved crown 
q 984, 985 Hist. . And again he says, The Clerks who such Writs dictate, writ, sign, and give counsel 
r 206. A●●it. . They are restrained by Pope Innocent the 4. his Decretales, who forbidden any such to be assumed to Church dignities, etc. unless he be learned in other liberal Sciences. Philosophy and Divinity were laid by (as the words there) the multitude of clerks ran to the hearing of secular laws 
s ibid. 190.101. . Hugh of Pa●shul clerk is made justice of England by Hen. the 3 
t Hist. 405 . So was the famous John Mansel (before) Keeper of the great Seal. There have been seven Wardens of the Kingdom, or Viceroys of the Clergy, twelve great chief Justices, near 160 times have Clergy men been Chancellors, 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 Assize, till Edw. the third, were of that order 
u D. Spel. Epist ad council. ; men whom the Laws were beholding to 
w 1 Inst. ●ect 524. rep. 5. Cowd. 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 profess it. Some of our illustrious names may be met with amongst the Sergeants and Apprentices of our year books as well as in the Herald's books. If like Boccace his Ghost all those who laid the foundations of their houses, who first broke through the mist of time, wherein they and their ancestors were hid before, who first shown their names to the world, were to appear 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 penny is got oftentimes too too dishonestly, by the unworthiest sins a man can commit, how would the gaudy offspring curse his own rise, the branch be ashamed of its own root, virtue alone is honourable, money can neither make men wise, valiant, nor good. Arts, and Arms only and really ennoble, that of all others most deservedly whose object is merely the good of mankind, which employs men continually for the public, for the preservation of the people pacique imponere morem. The soldier 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 king's title The ophyl.  risen with the Sun, and given eyes to the blind night. But I have offered myself 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 easy) truth only 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 kingdom of the bar or schools, with all his mouths, and tongues if he had more than one hundred, could not do full right, would be short and wanting here. Not in our right hands (as is said of those soldiers in Curtius) but in our Laws, our help, our hope, and liberty lie. We need not ask 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 aught to yield to (and our Parliaments have thought so) but eternity; and the change by that.   
FINIS.   

The Table.  

A.  
Aid to Knight the eldest son, etc. 127  
Alodium, alodiaries, 129, 130, etc.  
Aelfred the King not the founder of the Saxon policy, 85, 86  
Equity, 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  
Britanny and the Britain's under the Romans, 71, 72, 73. The Civil Law the first Law heard of them amongst them, 73, 74, governed by Kings, 72   

C.  
Caesar's Commentaries l. 6. concerning the Gauls and their wives, 75  
L. Chancellors Oath, 65  
Chief Justice the greatest subject, 159, 288, 289  
Church highly favoured by Laws, 273, 274  
Circuits of the judges, 163  
Civilians what opinion they have of the Pandects, etc. 226  
Clergy men heretofore Lawyers, 292  
Cnut the king composed the law called the law of St. Edward, 88  
Counselors, 175  
Courts of justice are of Saxon original, 94, 95, 96  
Courts since, 159, 160, etc.  
Courts standing and ever open, 165, 166  
Customs unwritten why, 89   

D.  
Delays odious in the law, 169, 170, etc.  
De rerum venditione, that constitution set forth at York; 74  
Drenches, 143  
〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80  
The Duilian ba●k, 218   

E.  
Earls amongst the Saxons, 98  
Edilinges, 140  
Edward the third first changed the Welsh laws, 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 Policy and ours much alike, 126  
Fyherens, 124  
Frilinges, 126  
Fundi limitrophi, 119   

G.  
gavelkind in Germany, 125  
〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80  
The Germans and their institutions, have over●●owen all Europe, 78, 79, 80  
Their laws called salic more ancient than Justinian 81  
Glebal gold, 120, Adscriptitius; ibid.  
Grithbrece, 134   

H.  
Henry the eight imposed wholly the English laws upon the Welsh, 77  
Heinfare, 145  
Hereban, 150  
Herefare, 127, 143  
Hereot, 127 14  
High Court of justice, 97, 159  
Hotoman his censure of Littleton, 240   

I.  
Infangennethiefe, 134  
judges not to decide causes according to discretion, how to be intended, 32, 33  
Their authority, 199, etc.  
Assistants to Kings and Parliaments there, heretofore Barons, 290  
Honoured, 292, 293  
juries, trials by them not brought in by the Conqueror, 92, 93  
justice 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, etc. 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 ancient, 35  
Law of the land in Magna Charta is not waging law, 50, 51  
Common Law, 75, excels and may control Statute laws, ibid.  
Custom and expirience begot it, 60, 61  
It is known and to be found in books, 60, 65, 66 67  
Its antiquity not Norman, etc. 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. Edward's laws, 100, 101, 102, 104, settled in the great Chaster, 108, 110 then called Common Law.  
Letters of the jonians and Phaenicians heretofore near the same, 37  
Loudes, 131  
Liberty what is, 45, 46, etc.  
Littleton vindicated, 240, 241  
Lombard's their laws, 84   

M.  
Manners and privileges 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 laws from the Saxons, 112   

O  
〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80  
〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, etc. 120  
Operae liberterum 119   

P  
Papinian Judge at York 74  
Papists ever enemies to the law●s 67  
Parks 136  
Plea of Pinneden under Will. the 1. 104  
Plead 209  
Polydore Virgil 92, 93  
Propriety 2, 3   

R  
Rectories and glebeland, whence 151  
Relief 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 laws in 740. years 53  
Slaves thrown to Lampreys 252  
Soc 134  
Socage 129  
Spaniards retain the Germane customs 128  
〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 120  
Subverters of the laws 66, 67   

T  
Team 134, 135  
Tenors all Europe ever 118  
Reasons of them 119, 120  
All lands held of the King 149  
Terms of the law 213, etc.  
Thanes, Thenot. 137, 138, etc.  
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, etc. anciently the King's letters there.  
No man to answer or be called in question without a Writ 209   
FINIS.