Rights of the Kingdom, Text (4 of 4)

Rights of the Kingdom · Text (4 of 4)

p. 243But for a Bishoprick the Prelates perswaded a grave man, to swallow the Oath: and so he did; on much reluctance. Maurice, was his Name; Elected by the people; a Clero & Populo: being then presented to the King, by Bishops; Attesting his deserts and due Election.

Another Bishoprick is conferred on Philip, the Lord Chancellor; but Consilio Baronum. And a while before, the Abbot, was made a Bishop, at London; petente Milone Constabulario, & favore Populi, utriusque Ordinis; that is, the Lords and Commons; or rather the Clergy and Laity.

In Huntingdon, we read of Robert Arch-Deacon of Leicester, about this Time, Elect Bishop of Lincoln; Rege, Clero, & Populo, summo gaudio annuente. And a while after, he shews us the King at London, in a full Parliament, disputing the grand question of Appeals; with the Romish Legate. For, such Appeales (saith he) had not been used in England, till That Henry of Winton the Legate, had cruelly intruded them. Malo suo crudeliter intrusit.

p. 244The Monk of St. Albans borroweth from him; and sometimes repayeth, with interests. As in that Statute, for Priviledge of Churches, and Churchyards; with all the Clergy; so, that none but the Pope could absolve, from violence done to such, (in which they all agree:) he added also, another Act of the Parliament, that Plowes in the Field with Husbandmen should enjoy the same Peace or priviledge; as if they were in a Churchyard.

His Geffry de Mandevil, (Consul, or Comes;) was a very great man: de magna villa. For he speaks, of his Princeps Militiae; and of another, that was, his Magister peditum. But in Henry of Huntingdon, we find him, at length, clapt up in Prison: but scarcely, secundum jus Gentium: Rex cepit eum in curia sua; ex necessitate magis, quam ex honestate. Hoveden; hath of him, the like expressions; adding also, that from a Baron, he had been raised, to the degree of a Consul; that is an Earl. For in him the Earl of Flanders, is Consul Flandrensis, and the Earl of Anjou; Consul Andegavensis.

This was he that come to be Hen. the 2d. who at his Landing, (being Duke of Normandy) coyned money; which passed here, by the name of the Dukes coyn. Nor only he; but Omnes potentes, tam Episcopi, quam Comites & Barones, suam faciebant monetam. p. 245(and of this, Nubrigensis.) Which may be compared, with the Saxon Laws, of King Ethelstan and others. As K. Hen. monetag. common. In the same Huntingdon, we also read, that (by the Mediation, of Theobald of Canterbury, and Henry of Winton;) the King was so reconciled, to this Duke and Earl Henry; that they never more discorded, (also that the Duke, was made, Iusticiarius Angliae, next under the King; & omnia Regni Negotia, per eum terminabantur.) But in Polydore, we find this Pacification, made by Parliament: Cujus Authoritate pactio facta est.

Matthew Paris is so full of Law Terms, that I could beleive him, in this, to allude to the Law Fines and Recoveries. For at this peace, he telleth, how the Kingdom was again Recovered. And (after a disgression to Merlins Prophesie, in which the phrase of Vice-comites, may be duly considered;) he concludeth, thus a War that had raged 17 years together, was now quieted by such a Time, hoc fine quievit.

To which he adds, that famous story of the Souldier, that in this Vacation made a Voyage to St. Patricks Purgatory. And by that occasion, he relates, the best description of Hell, or Hellish Torments, that I remember, in any Historian of credit. With which may be compared; p. 246divers others in the same Author. But that which is added, at the Souldier return to the King; may be added also to what is observed before, touching Irelands dependance on England. For, the same Souldier was again sent, by King Stephen into Ireland: to be Assistant, as an interpreter to Gilbert; who had a grant from hence, to found an Abbey in Ireland. Whither he also carried this Souldier, speaking Irish, and with Tears, he would often relate, his Voyage to Hell. Which is so recorded and asserted by divers Religious men.

To K. Stephen's Militia, we may also refer that, which so many Historians Record, of his damning the Hidage or Danegeld: Which yet was not his Act, but the Parliaments; that did Elect, and create him King. We must discuss it more fully ere long; but now, for Danegeld, we may assert it to be expressed, in his very Coronation Oath: on which, he was admitted.

One of the clauses was, that he should, for ever desist from that, which had been paid to some of his Predecessors, singulis annis. And Wendover, or Paris express no more. But in Hoveden, and Huntingdon Dane-geld is expresly specified, which both affirm to be then at 2 s. the Hyde. They agree also, with others; That p. 247this was again, specified in Parliament, at Oxford: Where the King, did again confirm, his Coronation Oath.

Matthew of Westminster doth also Record that of these promises or Oaths, he made a Charter, which seemeth to be that Charter, which the great Reporter, in his 8th. part, affirmeth, to be yet found, in an old MS. de antiquis Legibus. And that, the said Charter, among divers other things, doth expressely confirm, the Laws of K. Edward and of K. Henry.

Nay the Monk of St. Albans affirmeth, that in Parliament, Congregatis Regni magnatibus, he did there solemnly promise, to meliorate the Laws, or make them better as they should desire, or require, juxta voluntatem & Arbitrium singulorum; which we may consider again upon occasion.

Nor must I omit, that much of this very Charter, is yet to be read in Print; in an old Monk that lived in King Stephen Time; and those particulars, for confirmation of all good Laws; and in special, those of King Henry: with divers other things, that are worth perusal. It is in the Monk of Malmsbury: but a little after the Letters written to the Pope, about King Henries death; confession, absolution and Anoynting by the Elders; according to what was let to the p. 248Church, by the Apostle St. Iames: as in those Letters, is more fully expressed. Which may be added to that, before, of the Church Elders.

Polydore telleth us that in full Parliament at Oxford; King Stephen did abolish that, which had been oft exacted, for Hydage per singula jugera: and that he intreated another Parliament, to carry on that War, which by their Advise and Councel had been undertaken, in the Name of Common Wealth. Reipublicae Nomine, vestro cum Consilio tum Consensu, susceptum est: and his desire to them was, so to act in Person; that the People might not be burthened with Taxes.

And at his end Virgil addeth that, for all his continual Wars; he did exact, little or no Tribute, from the People. So that the Parliament it seems, did wholly manage his Militia.

From a long Storm at Sea; we are now come, into a quiet Port, and a calm Haven, such were the Thoughts, Expectations, and Hopes of All; in Henry the 2d. We have his Laws in Print; in several places: and his Lawyers, known enough. For who needeth to be told of Glanvil in his Reign; of whom before: and much I might add, from divers others besides Hoveden.

Who by occasion of that Judges Name; hath not only given us a Copy, of St. Edwards Laws; p. 249but hath also, asserted their confirmation by K. William, (as I should before;) upon the Oaths of chosen men, from every County, (sworn, as strictly as I remember any to have ever been;) with additions also of some emendations added by King William; ad Utilitatem Anglorum.

These Laws he saith, were compiled (or conditae) by the said great Glanvil; who (in Henry the 2d.) he stileth; summum Iusticiarium totius Angliae. And for this Kings confirmation of the good Laws of H. the first, we need no more than what we find in him (and all other Historians;) of the grand contest upon that occasion; between the King & Becket, Son to a Saracen or Syrian Woman, yet a Citizen of London, (and his Fathers Name was Gilbert.)

Favourite at first he was to Theobald, (of whom before:) by him commended so, that he became Lord Chancellor. But at his Patrons Death, being chosen to succeed (in Canterbury;) he resignneth up the Seal at taking orders: and in this both Wendover and Matthew Paris add to Hoveden, who in Becket is the largest.

Polydore agreeth, that his former perferment was, to be Arch-Deacon, to that Sea: to which he makes the Office of a Legate, to be then entailed; ever since Lord Theobald did fetch his Pall from Rome.

p. 250But the great quarrel was about the confirmation of K. Hen. Laws, (of which before.) They touched all the Clergy: So, that once reading of them, was enough to make the Pope condemn and Ban them all. In a great Councel or Parliament the King did ask, (they say petitioned the Church,) that all would agree to keep the Laws of his Grandfather, Henry the first.

Becket with some reluctance did consent, without his Salvo. But again repents in Parliament, at Clarendon 'tis clear as well for Commons as for others. Congregato Clero & Populo Regni, apud Clarendun. And again, the Lords beseech the Prelate that he would vouchsafe to come and say before the King and Commons, coram populo diceret, that he would receive and admit those Laws.

He doth consent and comes into the House, and frames his lips into a Content: the King is glad and bids the Lords retire, and bring those Laws from the Records; that all might be perused and agreed. Somewhat more he meant: for when the Lords returned with those Rolls, the motion was that all should set their hands, or Seals in witness of agreement. But at this,

The Prelate startles and recoyles again, and riseth high or foul in Language; So withdraws in greatest discontent. Ere long, we find him p. 251out again; at least, he would be out; For now he sueth for a Pass to France: he meant the Pope. I must not here omit the course the King did take to stop him. One there was that did complain, he had been long in suit; in some inferior Court of Becket, yet he could not get his right: and therefore was at length enforced to some other course and Court. For which his way was first to falsifie the Prelates Court by Oath, according to the Custom of the Kingdom: and of that we spake before in Writs of Right; and Tolts or Pone's; to remove them to some higher Court.

This seemed but a petty Case that happen'd every day, so that the usual Writ hath such a clause, that if the Baron did not, then the Sheriff should. And if the Sheriff failed (in the County Court,) then Bench must help.

But this was now enough to give a pause and check to that great Prelate. He must stay and plead it out; at length he finds the formal Oath (to falsifie his Court) was made upon Paper (or a Service Book:) whereas the Law required, that the Oath should be upon the Holy Gospels. This would not suffice, but Parliament, (at least the Barons, and the Tenants en Chief were such;) did put the Prelate into Misericordia.

He doth struggle and attempt a Writ of Errour p. 252or the like; (Iudicium illud falsificare:) but he must submit and is amerced at 500 l. he cannot bear it: fulleth …, but soon receives another summons.

For he shall have load enough, and now must give account of all his former Bailywick. He seeks delay, and would be Essoyned, de Malo lecti, and instead of Knights, two Earles are sent to view him, whom they find in Bed, but give him respite only till the morrow.

This bringeth a Case of Law to mind, Essoyned of sickness cannot Rise; without a License. If the Knights (that come to view him) find him not, or out of Bed it is default ▪ Of which in Bracton, Fleta, Hengham. And his Learned Commentator addeth a pretty Case in Rich. the First.

The Abbot of Crowland sueth the Prior of Spalding for entring upon his Marsh. The Prior Pleads, he entred as upon his own Ese-simple; and doth offer 40 Marks for grand Assise: and so the Mise is joyned; and the Right doth lie at stake.

The Abbot is Essoyn'd de malolecti ; and the Writ goes but to the Knights. But while one was coming to view him, he doth rise and cometh towards the Court; so the Knights Certificate is, The Abbot was not in Bed.

On long debate, the judgement was, that upon p. 253default the Abbot (yet in Possession) must submit to yeild the seisin to the Prior, whom he sued: See the Statute of Marlbridge, and the 2d. of Westminster cap. 17.

But Becket had Law enough to make him Rise, and come to the Court; in fear and discontent, but his Right hand is so fastned to his Cross; that it could hardly be forced from him, who did struggle for it. But his sorest pressure, is an heavy Action of Account, for all he had received as Lord Chancellor.

He pleads Discharge. And that at his Election Henry Son to him, that had such interest in the Kingdom, (cui Regnum adjuratum fuit;) and all the Barons of the Exchequer, and Richard de Lucy, Iusticiarius Angliae; did declare him free: quietum Deo & Ecclesiae, & ab omni exactione seculari, &c.

But his conclusion (Ideo amplius Nolo inde placitare;) cost him dear. For when the King had this, he knew his way and said to the Parliament, (or Baronibus suit,) do me speedy Justice on this man, Cito facite mihi Iudicium de illo, qui Homo meus ligeus est: & stare Iuri in Curia mea recusat.

So they did retire and being alone without the King; exeuntes Iudicaverunt. And they did adjudge him to Prison. But he escaped before p. 254his Commitment: although some, (that saw him going,) cryed Traytor, stay, and take thy Doom, By stealth he got to Sandwich, thence to France (by Flanders:) where he found the Pope.

I do not know that he talked much, of refusing to make his account. But his grand complaint was, that he was pressed to consent to such injurious Laws, as those (which he brought to the Pope,) of King Henry the First. Which were soon damned, notwithstanding our Kings Embassadors.

But Writs were sent abroad to the Sheriffs and Iustices, for seizing all, belonging to the Arch-Bishop: for attaching Arms that did appeal to Rome; or bring any Letters of Excommunication, or attempt a Voyage beyond Sea without a Licence. And for sequestration of the Peter pence till further order.

If that I have cited already, were not clear enough for Parliament in these; we may have more from Wendover or Matthew Paris, where we are expresly told, that the great meeting at Clarendon (of which before) was made up of a Lord President (de mandato ipsius Regis,) with Arch-Bishops, Abbots, Earls, Barons; and to these, also are added Proceres Regni: which may here speak the Commons, as in Hoveden, Populus; so often expressed p. 255of that Parliament. For it may be remembred, that Virgil himself doth acknowledge the Commons also to be very frequently called to Parliament; from the time of King William, as we may read in his large description of our Parliaments; in Henry the first. To which also (for this Parliament at Clarendon) we might cite very many Historians, besides Gervase, and the Quadrilogus (or Becket's Life by 4 cited on Eadmerus; and in Ianus,) from which there is much to be added to that in Matthew Paris.

Where it is also asserted that these Constitutions of Clarendon, were not only agreed, but expresly sworn by all the degrees of Parliament. Episcopi, Clerus cum Comitibus & Baronibus ac Proceribus cunctis Iuraverunt, &c. as also that these were but a Recognition or Recordation, of some part of the Customs and Liberties, antecessorum suorum. Of which also Florilegus thus coram lege & Magnatibus, facta est Recordatio regiarum Libertatum & Consuetudinum; Cui Archiepiscopus assensum non praebuit, &c. Nor would it be hard to shew very many if not all of them, agreed in Elder times. Of Foreign Appeals we spake before, and the Writ Ne Exeas Regnum, is as old as Rufus; if we may beleive Polidore, or better Authors.

To that of Appeals from Ecclesiastical Courts, (to p. 256the King or Delegates;) I can add very little, to what is in Caudries Case; in the 5th. part of the great Reports, with the preface to the 6th.

That against Excommunication of the Kings Tenants, (or as the Elder Law was of the Barons) is cleared enough in the Notes on Eadmerus; from the first Norman Records. To which may be added a Law of Henry the first, of the Wills or Legacies of his Barons, vel Hominum; with which the Learned Ianus compareth an Old Law of Canute; and toucheth the power of the Ordinary, in Case of Intestates; which is prescribed from most antient Parliaments, but the Original doth not appear.

I must not spend time in heaping up the many proofs of Parliament, for the Assizes of Clarendon: which were again, renued at Northampton. Hoveden is large and clear for them all, and for the Circuits, and Iudges in Eyre, by full Parliment: Communi omnium Concilio. But the Mirror, and those that write of Alfred will afford us these in many older Parliaments.

From that Assize of Arms for every Fee, we may learn to expound the Statute of Winchester, and others speaking of a former antient Assize: which is here found at large. To which I may add, that what is here spoken of the Iustices presenting p. 257to the King; may be expounded to the King of Parliament. As is fully expressed, not only in Fleta, but in the said Statute of Winchester, The Iustices assigned, shall present the dafaults at every Parliament. The defaults of Arms for the Militia. And by this time I shall not need to speak of Escuage in H. 2d. assessed by Parliament; for Tholouse, Wales and Ireland; of which Gervase the red Book in the Exchequer, and Matth. Paris, with the Notes of Hengham. To which I might add Matth. of Westmin. de unaquaque Carrucata terrae totius Angliae, quatuor denarii Concessi sunt & collecti, for the Holy Land. But when he had the offer of the Kingdom of Ierusalem; Convocato Clero Regni, ac Populo, it was rejected Concilio universo? as the Monk of St. Albans speaketh,

Of K. Rich. Coronation, and his Oath before the Nobles, & Clero, & Populo, Hoveden is very large. From him it may be found in others. And of the Jews in those times, to whom he was a Friend (as his Charters shew;) and very sorry for their sufferings; who did help him much for his Eastern Wars; as some relate with Polydore. See Mr. Selden on Arundeliana Marmora, his great Charter to the King of Scotland; of many Liberties, (for which he did recieve 10000 Marks;) but still retaining the antient Dues to this p. 258Crown is every where. For which I must not forget what was before in H. the 2d. Malcolm became his man 'tis said, and did him Homage: but on some disgust he was not Knighted by our King; as was wont. (and Matth. Paris addeth also, that the Scottish Kings Horse, was the English Marshals Fee, at such a Knighting,) But Hoveden telleth us that about two years after, the same King came again, and was then Knighted by King Henry.

Of his Parliaments and their Power, in War and Peace; I might cite very clear proofs. The League with France, was agreed by both Kingdoms, & Archiep. & Episcop. in verbo veritatis, (that was the mode in those days for them, as for the Lords since, in verbo Honoris;) & Comites, & Borones Regnorum, praestito Sacramento, juraverunt.

And his Sea Statutes were made de Communi proborum virorum Consilio, as the Charter it self expresseth it in Hoveden, Wendover or Matth. Paris. Who doth add, that per Consilium magnatum, there were made, Iusticiarii super totum Navigium Angliae &c. Which with divers Records of H. 3d. may be added to the Admiral, or Saxon Aen mere eal; Over all the Sea.

How the Lord Chancellor (being left the Custos Regni,) did on pretence of the Kings Warrants, p. 259pole the People; is at large in Hoveden and others. But in the Monk of St. Albans we may read, that er'e long in Parliament of Commons also, (assensu Communium definitum est,) it was enacted, that none should so domineer in England; to disgrace the Church and oppress the People. And that all the Castles which the said L. Chanc. had committed to his Clients, (or disposed without the Parliaments assent,) should be presently delivered up: and in particular the Tower of London; where he then was, and was glad to yield, and make his peace, with much submission for to save his Life.

For which also Polydore Virgil is worth perusing. And in him we also find the North committed to the Bishop of Durham; (who of an old Bishop, was made a young Novice Earl, but he paid dear, for his honour;) and how the Chancellor excused himself by the Kings Command. As if (saith Polydore) the Kings Command, might disannul the Law: Quasi fas esset, jus omne principis jussu rescindere.

Of the Kings Voyage to the East, I shall not speak; nor of the famous Prophesies he found touching Antichrist, and the Revelation. They are in Hoveden, besides all others.

Where we also find him ransomed by Commune p. 260assent; in special of the Clergy. And for this Walsinghams Neustria, may be added to others in the Road, and at his return, he is again Crowned before the People as well as the Lords; & Consilio Procerum.

Yet Polydore (with others) is bold to charge his Reign with great exactions on the Clergy, in special for his ransome: but himself yeilded, that the King did send, the Bishop of Salisbury into England, that by the consent of Parliament; Regii Senatus Authoritate; he might get his Ransome.

And himself yeilded that at his return there was a Parliament; wherein the King thanked his People for their Faith to him, and for that they had helped him in his Wars and Imprisonment. And that Ejus Nutu, Archiep. Cantuar. was conferred on the said Bishop of Durham: and that the Chalices, &c. were again restored to the Churches; and that the Laws, with weights and measures, were then also corrected or amended.

K. Iohn's Election must be discussed in another place. Of his Military Aids, Paris with Wendover is clear, that they were granted in, and by Parliament. Convenerunt ad Colloquium apud Oxoniam, Rex & magnates Angliae; ubi concessa sunt Regi Auxilia Militaria, de quolibet scuto duae marcae & dimidium. Nor p. 261are the Records wholly lost of his Parliament, summoned about a War with the French, (or rather defence against them:) and his Writs are known enough. They speak consent of Parliament, provisum est de communi assensu Archiep. Comitum, Baronum & omnium Fidelium nostrorum Angliae, quod novem Milites per Angliam, inveniant decimum bene parat: ad defensionem Regni. Besides the Rolls, this is found in the 9th. part of the great Reports, and in divers others. His Charter is now so well known in Print; that I need not cite any clause thereof. No not that so clear for the Militia, Nullum scutagium vel Auxilium ponam in regno nostro; nisi per commune Consilium Regni nostri. Yet I may add, that the Aides, there excepted and called Reasonable, (being such by Common Law) were afterwards assessed, and ascertained by Parliament.

For which the first of Westminster may be compared with the 25th. of Ed. 3d. and in the 14th. of that King; his Aides were remitted by Parliament, because (for his Wars) he had taketh other Assistance than was due by Law▪ which was much excused by himself, and divers other Kings.

And for this I might cite the 48th. of H. 3d. the 25th. and 31th. of Edw. 1st. the 10, 11, 12, p. 262and 13 of Edw. 2d. the 19th. and 20th. Edw. 3d. who did buy Souldiers rather than Press them; as the Roman Historian, of the declining times, of that Empire. Of the Barons Wars, I must not speak, a syllable, they do deserve a discourse by themselves: and it may be possible er'e long to see it. Now I shall only observe, that, our great Charter was rather the Cause (or occasion) than the Effect of those Wars. For, had it been so kept as it was made; the Crown might have rested in peace enough.

They which perswade others that this Charter was first created by King Henry, and extorted from him, only by a prevailing Sword, seem not to consider so much as its Title; as it now is printed: where we find it granted, in his 9th. year. Although it was so ill performed, that it needed confirmation afterwards.

Matth. Paris is very clear and plain in this, that it was wholly the same or exactly agreeing, with that of K. Iohn, & in nullo dissimilis. Nay he speaketh of K. Iohns Charter, quas sponte promisit Baronagio Angliae: and again in K. H. 3d. sponte liberaliter concessit. And the Popes Letters tell us, of K. Iohns Charter, granted most freely: Liberaliter ex mera & spontanea Voluntate, de Communi consensu Baronum suorum, &c. Besides the very words, p. 263in one of those Charters, spontanea & voluntate nostra dedimus, concessimus, pro nobis, & Heredibus nostris, Libertates has subscriptas.

Nor were these new priviledges, then first Created by him. But the old Rights of the People by long and ancient Custom: as we may find at large also in Wendover, with Matthew Paris, where they are not only, Antiquae Leges & consuetudines Regni; but we are also told, they did present, the great Charter of H. the first, with his Laws and St. Edward's. And to these the Barons sware: as the King had also done before. For so we read their Covenant was; that if the King would break his Oath, a juramento proprio resilire, (which they had some cause to believe or suspect, propter suam duplicitatem;) yet, they would keep theirs; and would do their best, to reduce him to keep his.

Virgil is also clear in this, who telleth us, K. Iohn's Troubles, and proceedure from his not restoring K. Edw. Laws, as he had promised. And that the Barons urged him, ut promissas tandem aliquando Lege daret, and again they ask for their Antient Customes; vetera instituta, quibus olim Reges Pop. Angl. bene rexissent: and the close is, quae ille prius recepisset se sanctissime observaturum.

And for Henry the Third; the same Author p. 264affirmeth, that (instead of his granting ought, that was new;) the People granted him that grand Prerogative of Wardships; (which that King accepted, with many thanks) adding also, that the People did not intend it for his Successors.

But of this I may speak in another place. I shall now only adde, that if there be not yet enough said, (from all the Saxon Laws, and Histories, with the first Norman Confirmations and Explications;) to assert the Great Charter, to be more Antient (for its matter) than K. Henry or K. Iohn: I shall only desire those that are yet unsatisfied, they would please to peruse the 2d. part of the Great Institutes; or at least so much of it as speaketh of H. 3d. and Edw. 1st. And it may be they will not wonder that at the Prelates motion, that Bastards might inherit: the Parliament at Merton, cryed out so loud, nolumus Lages Angliae mutate, &c.

To which also (besides the late Declarations of this Parliament; and the Petition of Right,) may be added; the Learned arguments, of those Grave and Honourable Judges; to whom we shall ever owe so much, for standing up (in an evil day,) for Truth and Common Justice; in the Case of Ship-money: Sir Richard Hatton, Sir p. 265George Crook, and Sir Iohn Denham; with the truly Noble Oliver St. Iohn Lord Chief Justice of the Common Pleas. Their Arguments are now in Print by publick Command. Nor may I presume to add a word in that subject.

Nor shall I speak of the times following the great Charter; which was confirmed more than thirty times in full Parliament: with many special Provisions for the Militia. It being most just and reasonable, that what did so much concern all, should be considered by all: Quod omnes tangit, ab omnibus approbetur.

Which is one clause in the Writ of Summons to Parliament (about a War with France;) in Edward the First. Which seemeth to speak a necessity of Parliaments, for matters of War. Not only for Money, (as some have pleased to speak:) or at the Kings choice to call them, if he please. The Writ speaks an Act of Parliament: Lex justissima, & provida circumspectione stabilita; not let at loose to the Kings pleasure: but as Fortescue, or long before him, the old Modus of Parliament, maketh it necessary for the King, and his Duty to Call a Parliament in all such Cases.

p. 266Nor shall I need to add what Paulus Iovius, Froisard, Comineus, de Serres, and the Duke of Rohan, with many other strangers have observed of our Parliaments, in this; which is the Law of Nature, rather than of England.

For as in the Heavens or great World we did before observe Mars, (or the Genius of War,) to be there placed immediately under Iupiter, (the great Councel;) and not under the Sun. So in the Microcosm or little World of Man; we find both Spleen and Gall, within; Hands and Feet, without; at a good distance from the Head: and never joyned to it; but in Monsters. Yet it is true that some Creatures have Horns on their Heads, but they are Beasts and not Men. Much less Kings, I hope.

But did we Labour, Toyl, and Sweat so much to keep a little River in its bounds; that so we might be drowned, by the boundless Ocean? Or be swept away at once, by a destroying and devouring Deluge? Did we scruple at a little Gravel or a Pebble, that we might be crushed by a Mountain? Would we strain at a Gnat, that we might be choaked by a Camel? or be swallowed whole by Behemoth?

p. 267It may not be, at least, it may not seem enough to quiet trembling minds, to say, or prove by arguments, there shall be nothing done but what is just: except we also see or know the way, and means, and usual course, our Governours will please to take; in doing that which may, or is, and ever shall (I hope) be just. The way must be both Right and Clear as well as is the End. And of the two; Unjust and Arbitrary Power, doth seem to be in Processe; or in ways and means; much rather than in Ends or Things, that be effected by it.

Sure it was, at least it might be, good; to build a gallant Fleet of Ships; and so it might be just, that each should contribute, a part to such a publick work. Nor was it only that, which then was taken from us, for a Ship; that made us sigh and groan, and cry, or fear our Ruine; or a universal deluge of Oppression. But it much or mainly was we did not see the way, or mean, or Legal Process, which the Court did take, in Taxing, or Assessing such a Place, a County, or a Person. And it was but thus in Loans, and so in divers if not all, the things, we so abhorred in the Crown: the thing, did not so much displease as did the way, or means, to such or such an End.

p. 268I need not say how curious, or how scrupulous, and tender still our Laws have been; in pointing out the Way as well as End: the Process in the Courts of Justice; as the Final Iudgements. So that indeed the very Form, and Life, and Power, or Substance of the justest Laws, doth much consist in Processe: which by some may be thought a shadow, or a Ceremony; left at pleasure for a blustring Wind, or any furious hand, to shake as much, as long as it shall please. And then to salve it up, by saying to the Root, We mean you Good; and do but lay you bare, that so you may the more behold, and more admire our Iustice in the End: when all the Boughs and Branches shall be gone, that do but hinder all your Prospect.

I must but Touch and glance. There is a Trinity which all our Laws do seem to Worship here on Earth: Estate, Liberty and Life.

Of all Estate, the Dower of Widows hath the greatest priviledge. For which the Comments upon Littletons first and fifth, with the Statutes of Merton; and some clauses, of the great Charter it self, for Quarentine and Dower, are good glosses, on the Saxon Laws; or those already touched: and I shall not add one syllable. p. 269All Estates have priviledge in Law; and all Amercements must be such, as may consist with mens Estate; from Alfred, Edgar, Ethelred, Canute or Edward, it did come to Henry the first; and thence to the Great Charter. Where the Law is plain and clear. No Free man shall be Amerced, but according to his Default and Estate: Salvo sibi Contenemento suo. Which is so branched, that it reacheth to Villains also; though it speak at first but of Free-men.

Hence the Name of Amercement; because it was and ought to be an Amerciament; or a merciful Fine. In which the Saxons went beyond us, in their Weregylds, and Divers Wytes: for which Fleta, may be a Comment to the Laws of Ethelstane, and others of the Saxons.

All this for End: but what must be the Way? How shall it be imposed: so that it may as it should be merciful? 'Tis miserecordiu Regis; as the Laws and Books do speak: but the King doth not, may not Fine, or Amerce any, but in and by his Courts of Justice. So that to render ones self, to the Kings Judgment, is to no effect; and so adjudged.

p. 270For as the Father, judgeth no man; so the King, (who is or should be Father of the Country;) but he hath committed all judgment unto Men, that are our Fellows, (Pares,) in the Courts of Justice. VVhere indeed the King, did sometime sit in Person; yet the Court did Judge; and not the King; as Fortescue doth plainly tell us. And the Judgment still is entred from, and by the Court, (and not the King) Ideo consideratum est per Curiam. And so the great Charter saith, we will not go upon him; nec ibimus nec mittemus; but by Legal Judgment of his Peers; vel per Legem Terrae: and of this last clause I never saw a fuller Comment, in a few words, than in Mr. Seldens Notes, on Attaint in Fortescue. But of all Iudgments, to be made by Peers somewhat was said before in Henries Laws, and more again ere long.

And for Fines by Courts of Justice (not by the King,) and Amerciaments by Peers; besides the Comments on Magna Charta; there are divers Book Oases cited from Henry the fourth, Henry the sixth, Richard the third; in the fourth part of Institutes, Kings Bench; To which may be added Greislies Case, in the eighth part of Reports. And the first of Westminster doth add p. 271to the great Charter; or at least explain it, in this. But the Mirror will tell us, it was an abuse, not to expound it, so largely before. And although the VVrit de moderata misericordia, (in the Register, and N. B.) be founded on the Statute; yet it seemeth clearly, but in affirmance of the Common Law. As appeareth, not only by Bracton and Fleta; but by Glanvil, who did write before the Charter: and by all the Saxon Laws, which were the samplers to King Henry the first.

But how tender our Law hath always been, in matters that concern Estate or Liberty may well appear by all the Executions, grantable for Debt or Dammages.

The Merchant and the Staple, Statutes are and were by Statute, not by Common Law.

They seem as sweeping Rain, and Storms, that drive away the Body, Goods, and Lands in Fee, (at time of Recognition; or accrewing since:) but none in Tail, but during life of him that was the Cognisor: Nor Copyhold, or Goods or Leases, for a Term of years; but only what was in possession, at the Execution done.

p. 272They are fore-known, and therefore may be well avoided, by all such as do not choose their own destructions. And there is a tender care in Law, not only of exact, and punctual Recognitions; and recording of them, but in case of forfeit, upon a Certiorari, sued forth from the Chancery; and not before return thereof, a Capias, shall be granted (on the Statute Merchant) for the Body only; if it be a Laic: and if Laic be not found, (and so returned into the Kings Bench or Common Pleas;) then on pauze of divers months, the exigent may be awarded. But in Statute Staple, on the first Return of Certiorari, may the Execution issue forth, returnable into the Petty Bag; of all it seems the worst, in this. But the Merchants Court, Aequitatem summam desiderat: although a kind of Peepoudres; as Bracton and the Notes on Fortescue.

Upon a Recognizance a Capias doth not go; before a Scire Facias be Returned into the Chancery. Then a Capias or a Fieri Facias or an Elegit; at the choyce of Cognisee; as in other Common Judgements.

And of these the fieri facias is the mildest, and the oldest, by the Common Law. It toucheth p. 273Goods and Chattels only: such as are the Parties Own; not lent by, or Leased to another. For although the Sheriff find them, in the Parties Use and full Possession, as he thinks; yet may he be a Trespasser in taking such; and so may run the hazard of an Action; ere he be aware. Nor did the old Levari facias, seize the Land: but Corn, or that which grew thereon.

An Elegit, hath its Name from his Election, or his Choice that sues it out: Who so concludes himself from other Executions. This did come by Statute; not by Common Law: and toucheth Half the Fee, and all the Goods; but yet with Salvo to Contenement: he must not lose his Oxen, or his Cattle for his Plough; For then he cannot live and keep his Family. So Tender is our Law, for all Estates and Livelihood.

Nay this Extent must not be made by Sheriffs; (who may not divide a right;) but by a Iury of Inquest. And so must be Returned, and preserved on Record; (as the first Capias, with all mean Processe must,) or else, it shall be nothing worth: as may appear at large, in the fourth and fifth parts of the great Reports; Hoes and Fulwood; with divers other Cases. And the second of Westminster, that giveth this Elegit, doth require both Extent of Lands, and prize of Goods to be Reasonable; that is by Inquest of Twelve and so returned of Record. As is cleared in the Commentator. See also Littletons Parceners.

A Capias ad Satisfaciendum, taketh the Body; but it is by Statute only: for it did not lye, by Common Law, in Debt or Dammages; but only where the Original Action, was for Forceable Trespass; Vi & Armis. Which is Now, crept into every Trespass. But of this Sir William Herberts Case, in the third part of Reports.

It may be forbidden again by Statute, as it was first granted: and that justly too for ought I know; if other course be taken, for the payment of Just and Reasonable Debts. For the Capias (as now managed,) is a great mischief, and divers times, to the utter ruine of the Debttors whole Family. And yet but very little advantage to the Creditor: except the Debtor p. 274escape (and so the Sheriff come to pay the Debt;) or except he dye in Prison, and the Plaintiff get an Elegit, for the Debtors Goods at his death, or half his Fee-Simple, which he had at the time of Judgement or after it. For an Action for Debt or Dammages, doth but respect the Person; and the Law attendeth not; what Lands were enjoyed at the Original, or before the Judgment. But an Action, brought against an Heir, may aim at Land, and so may charge it; although he Aliene while the suit dependeth.

Neither shall I need to add, that all these Executions, must be sued out, (For this is required by Law, except in the Kings Case:) within one year and a day after Judgment. Yet they may be continued after; and by a scire facias, be renewd or repealed; till the Judgment have Full Execution. But this was also given by Statute: and to this may the Debter plead, although he cannot plead against an Execution. Yet, it may be suspended by a Writ of Errour and Recognizance, according to the Statute of Iames, and 3 Caroli.

And without a Writ of Error, after judgement, if the Defendant have matter to discharge him of the Execution; still the Law is open for him. And he may relieve himself by a Writ of Audita Querela. And in case of Elegit, as soon as the Debt is satisfied; the Debtor may enter on his Lands again: and if he conceive the Creditor satisfied by casual profits he may bring a scire facias; upon which the Creditor may clear, how much he hath received of the Debtor's Estate.

Unto this occasional discourse, I shall only add that grand maxime of our Law, that Executions ought to be more favourable, than any other Process of Law whatever: Of which the great Judge upon Littletons Releases, and the second of Westminster in Edward the First.

And for Executions, for the Kings Debt's; restrained by the great Charter; I have little to add, to the Comment on the eight chapter of that Charter. But the twelfth of Articuli super Chartas, hath afforded a Writ commanding the Sheriff to accept of Sureties: else an Attachment lieth against him; or the party may bring an Action against the Shetiff, that refuseth Sureties.

p. 275It is a maxime in Law, that a mans House, is his Castle: so that the Sheriff cannot break it open for an Execution. But upon a Writ of Seisin or Possession, the Sheriff, (and other Officers, upon suspicion of Treason or Felony,) may break open an House; and so also in common Executions, where the King is a party. But in all such Cases first the Sheriff must request the door to be opened. And the First of Westminster, doth also require solemn demand of Beasts driven away into a Castle or Fort; (which is a kind of vetitum nomium which may be regained. By Withernam.)

Which Case I cite the rather, because of the Militia. For in such a Case the Sheriff or Bayliff shall not only force his Entry, by the Posse-Comitatus into such a Castle; on the suit of a Subject: but it may also, come so far, that the said Fort or Castle, may be beaten down without recovery.

And although it be said, it shall be done by the Kings Command; yet it is well known and seen by experience, that it is, and always was by Order of the Courts of Justice: and for this Semain's Case, in the fifth part of Reports, may be very well added to the Comments on the First of Westminster. By which we see how much the very Forts and Castles or Militia, must be subject to the Courts of Iustice: Not the King only, but in and by his Courts; especially the Parliament, that may Command, Controul and Over-rule, all other Courts.

How tender the Law is in Case of Estate, Forfeit by Alienation, I have touched before, much is to be added: Nay in the worst and lowest Estates by Tenure of Will, (of which somewhat also before, for a Fine Reasonable, &c.) as by Copy ▪ where Alienation, and Wast against the Custom, with other Cases (in the fourth part of Reports,) may Forfeit to the Lord: but he cannot Out his Tenant at pleasure, (especially him that sweareth Fealty;) but the said Tenant may sue his Lord, or bring his Action of Trespasse.

For Offices Forfeited, by Bargain and Sale or Brocage; the Statutes are clear and just. To which may be added the Comments of Littletons Estates Conditional: as also for Forfeitures of Conditions.

It is expresly provided, by Act of Parliament, that no Sheriff or any other Person, do take or p. 276seize any mans Goods, (much less may he take his Lands;) for Treason or Felony; until he be duly convicted, or Attainted by Trial, Confession or Outlawry upon pain to Forfeit double; to the party grieved, nor is this only in Richard the third, but in the first great Charter, and before it also, as was touched before.

Among the Saxons none were Outlawed but for Capital crimes: we find it often, in the Mirror, and in such the Out-law might be killed, by any that met him; (as might any man, Attainted of Premunire, that vast Chaos of confusion; till Queen Elizabeths Time.) I do not find any outlawry below Felony till about the Barons Wars; and then it came not below an Action of Forceable Trespass, Vi & Armis.

But (in the Common Pleas) it came to lie upon Account, Debt, Detinue, Covenant, and other petty Actions: which the Mirrour would pronounce a most great abuse. But in Edw the third, there was some amends, in providing that none should kill an Out-law, but a Sheriff only with lawful Authority. Yet in inferiour Cases, Land Issues might be sequestred, in the Kings Hands till Appearance, or Reversal. Only in Treason and Felony, it forfeiteth as much; as Attainder by Judgment.

But it may be Pleades and Reversed divers ways. And a Petty Misnomer or a misdate, is ground enough to Reverse it; by a Writ of Errour. And of this the Books are full. But Nimin's case is a criticism in Chronology. One of the Sheriffs Returns was dated on the 8th. of Iuly in the second and third of Phil. and Mary; but it was declared, there could be no such day, but in the 2d. and 4th. year, (which was only, between the 6th. and 25th. of Iuly:) yet this was enough, to Reverse an Attainder of Treason, by Writ of Errour. And in Favour of Life, our Law admitteth Pleas to Out-Lawries in Capitals; there where in other Cases must be brought a formal Writ of Error.

I cannot deny but even by the common Law, upon Indictment for Treasom or Felony, the Goods and Chattels might be Inventored: but not seized as Forfeit till Conviction. Nor are Lands and Tenements Forfeit, till Attainder by Judge- And in case of Appeal, (which related no time;) that is only Forfeit, which is possessed at the Iudgment. But upon Indictment (dating the p. 281crime,) the Forfeiture will reach to the crime committed: although there be Alienation before Judgement.

But no Forfeiture before Conviction; no seizure before Indictment. And the Book of Assizes telleth us, the Judges took away, a Commission, from one that, under the great Seal, had power to arrest and seize on Goods, before Indictment.

And how tender our Law was, in this for Estate, it may be seen at large in Bracton and Fleta; with the old Writ, not only in them, but in the Register also; relating to the great Charter, forbidding all Disseisin till Conviction. Yet it requireth the Sheriff, per visum suum & legalium hominem, to Apprise and Inventory, all the Offenders Chattels, but with a double Salvo, both for safe keeping them; (and for this Security was to be given by the Bailiffs or the Township;) and for maintaining the person in Prison, with all his necessary Family. Salvo tamen eidem Capto, & familiae suae necessariae, quamdiu fuerit in prisona, Rationabili Esto verio suo. Which was not only Meat but Cloathing, &c. as hath often been adjudged in Edward the p. 282third, Henry the fourth and other Times. See the third part of Institutes, cap. 103.

It will not be long I hope before God stirreth up our Governours to Reform the crying sins, of this Kingdom (and not only Gaolers) in our oppressing grinding Prisons. But the Heathen Moralist hath also told us, that Divine wheels, are also grinding, and will grind to powder; though they be slow in motion, as unwilling to revenge.

It is true, that Prisons should be by Law, both safe and strait Custodies; nor should they admit such wandring abroad as some mens Mony doth procure. But although Recoveries on Record; (much lesse Discents) do not bind men in Prison, or conclude them for want of claim: yet upon motion Prisoners may and ought to be brought to the Court, in Suits or Actions against them, in case of Judgement; or where ever else, they ought to be in person present. And for this I may only referre to the Commentator on the continual claim; and the Cases by him cited.

p. 283How unwilling our Law was to empair our Liberty, was touched before in the Capias on Debt. And although some latter Statutes do out-go our Common Law for Imprisonments; yet it is still received, for a general maxim in Law, that Prisons should be Custodiae, not Poenae. And where ever any man is unjustly in Prison; the Law affordeth him, more ways of getting out than his Enemies had to get him in.

He may have an Habeas Corpus; and he may have a Writ de Homine Replegiando. He may have an Action of False Imprisonment. And may found an Action on the Great Charter: Or on it, may cause his unjust friend to be Endicted. And the Writ de Odio & Atia, was again revived though by Statute once it was forbidden.

And for these with Bayl by Judges or Justices; Replevins by Sheriffs, &c. We have the Judgement of all the Judges on Articuli Cleri: and the Comments on the great Charter; with the Statute of Marlbridge, and the first and second of Westminster. To which we may add the old Records, cited by the great Judge (on Littletons Rents and Releases;) for Minors and Women with Child, being excused from Imprisonment; not p. 284only in Judgment on Trespasses, but an Appeal of Robbery.

More curious yet, and tender is our Law in all that toucheth Life. The Mirror is full of Complaints, that in his time, (and Horn did live about King Edward the first or rather the second for he nameth Edward the first:) some sins were made mortal, which were but Venial. At was Rape (with him) till Edward the first. But none (saith he) can make a Venial sin, mortal, by any Statute without consent of the Pope and Emperour.

And besides the Saxon Laws cited before, it is considerable that one the first Normans (called Conquerours) Laws so often confirmed since, was this, that no man should be hanged or put to Death for Treason or other crime: but lose his Eyes (or be exect) or some way dismembred that so he might be a living Monument and spectacle Proditionis & nequitiae.

And of such there are many precedents, and of some Banished; but of very few Hanged or put to Death till about the Time of Fitz-Osborn cited before. And Rape was punished with loss p. 285of Eyes, and exection (in Bracton) before the Statute of Westminster. The second but in Glanvil, it seemeth to have been as mortal as Murder or Burning.

From the Monk of Malmsbury we find that the Laws of Henry the first, did punish this and Theft, with loss of Eyes and exection. But of this Mr. Seldens Ianus, and his Notes on Hengham, shew the like Customs, continued in Winchester, and Walingford. Hanging is a late punishment for Theft, but some kinds of Felony did lose the Head. And for Adultery the Woman of old did lose her Ears and Nose: but she was burnt to Death, for killing her Husband; which Caesar also observed of the British Gaulish Druids.

But our Ancestors allowed Bail, in Cases very high and hienous; (we must speak of Treason in another place,) that I say nothing of Sanctuary, Abjuration and Clergy; which was much larger than later Statutes have made it. But of this for rhe Peers in special (although they could not read) see the first of Edw. the 6th. and a later Statute of King Iames, for burning and whipping of Women who could not be Clerks as men.

p. 286It may be considered how our English mercy, may be continued some other way; if this be put down.

Which is very disputable, and the plain truth is, it was much at the Ordinaries pleasure. For they were not fined, for refusing to come before the Justices; who yet might reprieve the Prisoner, in case of such Refusal. And in Case of Sacriledge, it hath been declared at the Ordinaries choice to give or deny Clergy, for which an old Record of Edw. the 3d. is to be added to Poulters Case, with Cawdries and Biggens in the 5th. part of Reports.

This Case of Sacriledge is very considerable, being of all the most forlorn; for being denyed the Priviledge of Sanctuary, it could not Abjure. For this was Appendant to Sanctuary: whither the Offended did first fly and then Abjure.

By the old Law the person Abjured must banish himself, into a Forreign (yet a Christian) Country. But in Henry the 8th. he was removed to some other English Sanctuary. And in K. Iames if it is taken away; but what was allow… in 35th. of Elizabeth, which remaineth yet, (without Sanctuary) for ought I know.

p. 287But to all Antiquities for Abjuration and Sanctuary in the Mirror St. Edward's and the Saxon Laws may be added, those of Molmutius the old Britain so long before Christian Religion. Of whom before, and yet again ere long.

Pain fort and Iure (the pressing punishment in case of standing Mute in petty Treason and Felony;) with Martial Law; are not so old, as our Ancestors Mercy. Yet in this they are merciful that they do not forfeit Estate; or Attaint, and corrupt blood as do other Capitals. But when shall we live, to have no need of that Novel Pressure, of Law Martial? When shall we again return to our Fore-fathers tenderness in all of Blood?

And that not only in Pitty but Policy, both in this and other Nations. Who could else have made no great Title to many of their best slaves in Gallies and other employments. Which yet were not so good as our Mines might prove, if at least they were known how to be found, used and improved: As they may, and shall I hope ere many Ages more are lost, or worse than lost, in hating, spoiling, killing and devouring one another.

But of all little Islands near us, the Isle of Map (a very Famous place of old, and a distinct p. 288Kingdom of it self; though Appendant to this Conquest,) seemeth to be worthy of Enquiry, for their Laws and Customs. Which are very much, more compendious, than Ours, in some Cases of Law, with all Pleadings and Process.

In Criminals they have strange Customs it being with them more Capital to Steal a Pig or a Capon, than an Horse or an Oxe. One reason, is because they love plain dealing, and be open-hearted, and they hate the man that Steals and Hides, much more than him, that doth it in on open way. I find it in a very good Author, and a great Lawyer; who reporteth them, to be industrious and religious, true and very free, from begging or stealing.

All Controversies are determined in little time; with less Expence, Pleading or Writing. Yet in Cases of unusual Weight and Doubt; they have recourse to Twelve they make and call the Islands Keys: being above their common Deemsters; whom they choose from among themselves. Their Bargains are compleated and comfirm'd, by the giving and taking, of as mean a matter as a Straw: as of old also per traditionem stipulae, from whence the phrase of stipulation came. But these were moulded also by our British Druids; or of later date, our Saxon Ancestors.

p. 289I need not speak, how curious our Fathers were, in all their Process, touching Life: The Way was still as punctual, as clear, and plain, as was the End.

They loved to be just; and to do justly.

Doth our Law condemn or give power to condemn any man, without Hearing; or due Summons to Judgment? I hope it never will.

A Great man of a good Name, standeth upon Record, as by Parliament, condemned to Death, without Hearing; or Legal Summons. But there is a Blush, or a Vail of Oblivion, drawn upon it, by good Writers, as a stain and a shame, to the Parliament Rolls: yet as a just judgment on him, that had first moved, that another, might be so condemned. And he so perished, by that Law, which he would have made for others.

This seemeth also, to be written in the Law of Nature. And doubtless, the Sins of Sodome were as notorious to God, in Heaven, as any others, can be, to Men in Parliament. And yet, He would, and did, go down, to hear, and see, and proceed in a judicial way▪

Nor would he condemn or execute, before he had, not onelyonly, cleared his justice in himself, or to his Angels; but also to Abraham, Lot, and other Lookers on; that he still might be justified, both when he judgeth, and is judged. For he still did, and will, put his Actions on Man's Judgment.

This Process also towards Sodom, is by many of our p. 290old Lawyers, brought for the Pattern of our Laws; in that especially, that none may be condemned without a Legal Hearing. And in this, and divers other things, do Bracton and Fleta borrow much from the Laws of Henry the First.

And be the Matter of Fact never so notorious; yet may there be some Plea, that no man can foresee, or ought to forejudge before he heareth; for all men may plead necessity, or force upon themselves (as well as Right and Law) for any thing they do amiss. And for this, and other Reasons, the Law doth suppose all men to be just, or excusable, till they be Legally heard and adjudged. This Difference, there is between the Judges and the Law-makers: For these (they say) do suppose all men to be evil; but the Judges should suppose all men to be good till they be proved to be evil.

The Charge and Accusation, by the Law of Nature, ought to be clear, distinct, and particular, (with time and place, or other Circumstances) else the Party accused cannot discharge himself. Universalia non premunt omnino, vel opprimunt; Generals do not press at all; or else, they are apt to oppress.

The Witness, and the Evidence, must also be so clear, that these must condemn rather than the Judge, who sitteth as Counsel for the Party accused; that so, he be not oppressed by, or against Law.

And besides the Judges, (in most Cases, and in p. 291those also of Life, in Scotland) there is Counsel allowed by Law, which may, and ought to be heard in Particulars of Law, or whatever may be justly disputable; as Treason is by Statute. So, that of all Crimes, by express Acts of Parliament, it ought to have no Tryal, but clear and plain, according to the course and custom of the Common Law.

In such Cases, therefore, should the Iudges (both in Law and Conscience) sit, and be, instead of Counsel to the Party. This they owe to every Subject, though they had a special Obligation to the King.

Who, to his own Rights, (and therefore to his Wrongs) was an Infant in Law? and so expresly declared in the Old Mirror, besides other Books. His Politick Capacity never, but his Person ever in Nonage, or supposed so in Law: for it may be a Child, or a Woman not able to know the Laws, and therefore always had, by Law, a Legal Mouth assigned, in Counsel of Law▪ And so might any man else (of old) it seems, for matter of Demurrers, before Judgment; or for framing of Legal Appeal (by Writ of Error, or some other way) from any Judgment whatsoever.

It is also the Law of this Kingdom, and of Nature, that though there be no Councel assigned; yet may any, in a good manner move the Court to keep the Party from Injustice, or the Court from Error ▪ as Stanford, and the 3d. part of Institutes, Cap. 2.63, and 101. And in such Cases it may be excused (and not censured for rash zeal) p. 292if some do, or shall appear, where or when, it may be thought they be not called.

Neither can the whole Parliament of England, I suppose, make any Court to condemn without lawful Accusers, or lawful Witnesses; which, by express Acts of Parliament, is most especially provided in Case of Treason, in King Edward the Sixth, and Queen Maries Reign: and Tryal of Treason, was most expresly tyed to the course and custom of the Common Law. Nay, in full Parliament of Hen. the VIII. it was declared, that Attaint of Treason, in, or by Parliament, was of no more force or strength, than it was, or ought to be, by the Common Law: or this as good and strong, as that by Parliament.

Nor can the whole Parliament, I think, by the Law of Nature, and right Reason, make any (Children, Ideots, or all others) whatsoever, to be, so much as Accusers or Witnesses; that I say not Indictors, Tryers or Judges.

By express Acts of Parliament, in Philip and Mary; Edw. VI. Hen. VIII. Hen. IV. Hen. I. (for, to him, doth the Mirror, and his Laws, lead us as to a clear Crystal Fountain of our Law Process;) none should suffer, for Treason or other Crime, but by lawful Accusers, lawful Witnesses, before those, that by Law, might receive Indictments; which, with all Enquest, are to be made, by honest, lawful, able men, Neighbours to the Fact.

p. 293And the Law of Nature, with the Law of the Kingdom, giveth any man leave to except against some for Accusers, others for Witnesses; and many for Tryers. It being the known Law of the Land, that one may challenge the Array (either the principal Pannel, or the Tales) as well as the Polls; and that the lowest Subject, must be admitted, if he require it, to a perremtory challenge of divers, (it is now, in most Capitals, limited to 20. but in Treason, it is, as at Common Law it was, to 3 Juries, or 35) which may be challenged, without any particular reason. And the Law of Nature also seemeth to hear all Reasons, and just exceptions, against any whatsoever.

Nor, shall I need to shew, how sutable our Law is to the Law of Nature, in providing, that no Infant, Ideot, Alien, Abjured, Perjured, or Attaint, Outlaw'd, or in Premunire be of any Enquest, or Iury; especially in Case of Life and Death.

And for Tryers, besides all other exceptions; This was thought enough that any of them had been Indictors: which maketh Fortescu so much to Glory in our Law, that putteth no man to Death, but by the Oath of four and twenty men.

I should mispend my time to shew it to be the great Law of the Kingdom, as well as of Nature; that none may be Iudg, and Parties, in their own Cause; which may ere-long be found perhaps, to be the reason, of the Three Estates; and very much of our Common Law, p. 294which is punctual in nothing more, than in providing for a clear distinction of Accusers, Witnesses, Endictors, Tryers, and Iudges, especially in Cases of Treason; which upon divers motions, of the Commons in Parliament, have been so often Enacted and declared to be onelyonly Tryable by the course and custom of the Common Law, and no otherwise.

Nay, in Parliament it self, and Parliament Men, there was, and for ought I find, always, the like course observed. For, in Case of a Peer, the Custom of the Kingdom is, to proceed by a special Commission, to one as Lord Steward, and 12 others (at least) for a Iury of Tryors; besides Accusers and Witnesses; and a formal Indictment. And all from Record to Record; or all this is Illegal, if it be onelyonly by the House of Peers.

If Charge come from the House of Commons, they are as Indictors, being more than twelve sworn men, Trustees to the whole Kingdom; and Neighbours to the Fact, or Party, or both. To which also there must be a legal proof by lawful Witnesses, or else the Charge will not suffice.

And in such Indictments, from the Commons; the Lords are the Tryers; and the King may seem as the Iudg; but in other Courts also the Judgment goeth of course upon the Verdict; and must be entred per Curiam, (as adjudged by the Court) although there be but one Judge; or tho' his Mouth pronounce not the Sentence. But we are not yet come, to debate the King's Consent, to the Lords p. 295Judgment; an Indictment from the Commons

It is also to me very considerable how the House of Commons could, or ever did Indict. I cannot deny them to have been a Court, and a Court of Record; (although some have seemed to question it; and their Records are not so ancient as some others.) But I have not fully understood how they ever did make, or receive a Formal, Legal Indictment; when as they did not give a single Oath, much less, Empannel a Iury, or Enquest.

Yet some, there be, that without a Writt, or any written Commission, did and might do, this, Virtute Officii: But they be known, chosen, sworn Officers of the Kingdom, for such Purposes; as the Peeples Bayliffs, Coroners, Sheriffs, Escheators; and some Officers about the Forest; who, by the Common Law, did Summon and Empannel Juries.

But so did not the House of Commons. How then, did they Indict?

Of all Crimes committed in the House, they are, and were, so much, the sole Iudges, that they seldom use, to complain, much less to Indict any other.

And for any thing done abroad, I hope, they do not use to take Rumours and Reports (though from their own Members) to be sufficient for, or equivalent to a legal Indictment, on Oath: Seeing their scarce is, or can be any Case so notorious, but it may be pleaded unto by somewhat of Law, or Necessity.

And although I should yield the Commons to be the p. 296Masters of the Law in making it; yet they pleased to allow others, to be Iudges in their Laws.

And if they reassume this also, yet it may be more easie to judge of some Law, than of any Fact; at least as it may be cloathed, so as a curious search, or Enquest, may be requisite to lay it clear and naked.

Neither can I see, how it may be necessary, to proceed against any by force, or illegal Process, when it is easie, as well as just, to go rightly, as to do right.

For who can imagine a Case so dark and intricate, but it may be contrived so, that particular men may be Accusers; and others Witnesses? with a clear and real distinction between Indictors, Tryers, and Iudges? most of all in Cases notorious and evident. For in such there may be less fear of the Iuries Verdict against Evidence; or of the Iudges Sentence against the Verdict.

Or if this should happen in a Tryal; is there not a most heavy doom appointed by Law for all Iurors that forswear themselves, and goe against their Evidence?

Is there not a clear way of Relief, by Writ of Attaint? Is it not worse than Death, to forfeit all Estate, and be thrown into Prison; while both Wife and Children must be turned out of Doors and All? For his House must be pulled down, his Ground be plowed up, and his Trees rooted out; with loss of Franchise; and with a perpetual Brand of Villany. This is the Common Law for a perjured Iuror; and that also in Petty Cases: how much more might it be just in Case of Life and Death?

p. 297And for Corrupt Iudges, our Law is very severe; altho' we have much lost the Custom of the Grand Eyres in this also; & King Alfred be long since dead; who hanged 30 or 40 more unjust Judges, than Cambyses flead. And for that the Mirror may be a good Comment on some Passages, in Alfred's Life, by Asser: And if it be true, that Horn lived to the end of K. Edward; it is much wonder, that on such occasion, he did not also mention some of those Judges by him so punished; when there was scarce any left but good Iohn of Mettingham, and Elias of Bechingham. And of this the Dissertations of Fleta may be added to all before; as that of Sir William Thorp and the Great Judg, in the third Part of Institutes, about corrupt Iudges, and the Iudge's Oath.

It is very considerable, how curious the Iews were in Creating, or rather Ordaining of Judges. For indeed the Phrase of Ordination seemed to be first raised from Them. For which I have little to add to Mr. Selden on the Eutychian, or Alexandrian Antiquities, (as old as St. Mark the Evangelist.) Nor can it be denied but the Jewish Judges and Magistrates had a very good Right; and so used (as we find in the Books of Moses, and the Kings, and Tirshatha's) to Read and Expound the Law Moral as well as Iudicial. Nay, in this, they seemed to have some advantage of the Priests, or Levites that had work enough most times in that which was but Ceremonial. This may Expound those Pieces of Scripture, Old and New; where we find some explaining p. 298Scripture; being neither Priests, nor of the Tribe of Levi.

And the Iews Punishments, of evil Judges, are severe, and most remarkable; nay, where all others were again restored to their Offices after Corporal Punishment, their Lord Chief Iustice or President of their Sanhedrim, or any Chief Iustice, could never be restored again after such punishment; no, not to be as one of his inferour Colleagues. So just he ought to be and circumspect by daily experience, added to his own wisdom.

Our Laws are so just, and so good, in themselves, that there could not be be so much cause of complaints, in all our Gates, (for such were the Iews Courts of Iustice) if our Judges were such, as they should, and might be. And yet I cannot deny but that there be very great abuses among the Lawyers, and Attorneys, or Solicitors; but if the Judges were as just, and wise as they may be, inferiour Officers would soon amend, or comply for Love or Fear, so much as would prevent Complaints and many of their Causes.

But it is the work of a God and not of a Man, to reform abuses, in all Courts of Justice. Hercules did never cleanse so great, so foul a Stable, or a Stall; yet in this also, a wise and just Parliament, will do much, and will need none of my help, or advice.

How tender all should Delegates be, in making Delegates: But in nothing should they be more tender, or more circumspect, then in this of making Judges; For in these of all Delegates, our law is most scrupulous.

p. 299Before the Statute of Merton, those that held by suit Service, were bound to appear in Person, because the Suitors were Judges, in causes not their own; but by that Statute, they had power given, to make Attorneys; but it was only, ad Sectas faciendas, to make, or follow suites for them, but not to sit as Judges: For, (as the Commentator addeth) they could not depute, or make Attornies in a place and act judicial.

I will not, I cannot say, the Commons of England cannot choose, or constitute their Judges; but this I say, or believe, their delegates ought to be exceeding Curious (I had almost said, exceeding Scrupulous) in making Judges, and in bounding them to law, and Justice, both in way, as well as End. I must again repeat it; That it may not seem enough to settle Judges, just and wise and good: Nor only to provide, that they may do what is just (I speak of end) but men are men, and ought in cases of such consequence, to have their Way, their Rule, and Square, (by which they must proceed) to be prescribed in their Patents or Commissions, that they may do justly too, as well as what is just.

To me it seemeth to be reason, or the law of nature unto men, that the Supreme Court, should so limit all inferiours, that it may not be left at large, to their list or pleasure, to condemn or sentence without Hearing, Accusation, Witness, or without such Process and Tryal, as shall be clear and plain, and so prescribed in the Patent or Commission.

p. 300If it be not so done, and expressed, I know not what appeal can be, but from the Court, before Judgment: For, what appeal, what writ of Error, or what Plea can a man frame upon their Judgment, who have no Rule, no way of process prescribed, and so cannot Err, Transgress, or Exceed their commission, no, not if they should without all accusation, proof, or witnesses condemn one to be sliced and fryed with exquisite tortures. They are Judges, but unlimited in way of Process, infinite and purely Arbitrary. No they are Men, and so they must be Rational and Iust; which was presupposed by them that gave so vast power.

They may be Iust indeed, and so they should, but yet no thanks for this to their Commission, if it do not bound, and limit out their way and manner of Process, as it doth their work, and Object, or their End; which was the wont of English Parliaments, who were Just and wise themselves, that they did see or fear it might be possible for their Committees, to be most Unjust and Arbitrary, if they were not most exactly limited.

Of all Commissions, none were more curiously drawn and Pointed out by our Ancestors, than those of especial Oyer and Terminer; because the cases were not only heinous (so they ought to be;) but such as for some extr ordinary cause emergent, seemed to be as it were Extra Iudicial, and such as could not stay, and abide the usual process of the settled Courts of Justice.

p. 301Yet of these also did our Fathers take most especial care, that they might be Iust (in Way as well as End) and that they might not be too High in Iustice; for it seems that they had also learned an usual saying of the Antients, Summum jus est injuria: So that in divers of the Saxons Laws, we find High Iustice (Summum Ius) to be as much forbidden as Injustice. And I should tremble at it, as an ill Omen to hear Authority commanded, the the Kings Bench or any other Court, should be now Stiled the Bench of High-Iustice: For in Iustice, the higher men goe up, the worse, or so at least it was esteemed by our Ancestors.

Their constant limitation was in every such Commission, Thus and thus you shall proceed; but still according to the Laws and Customs of England: Secundum Legem & Consuetudinem Angliae; and no otherwise, that is, as Fortescu will say, you shall be pittiful in Iustice, and more merciful then all the world, besides this Kingdom. And if such a limitation were not expressed, this was enough to prove the Commission, Unjust and Illegal; which is so well known to all Lawyers, that I need not cite N. B. or the Register Commissions, or Scrogs's case in Dyer, or so many elder cases, in Edward the 3d. Henry the 4th. and almost all Kings Reigns.

Nay, in King Iames, among the great debates of Uniting Scotland to England, when it was driven up so close, that instead of Secundum Legem & Consuetudinem Angliae, it might be Secundum Legem & Consuetudinem Brittanniae; p. 302It was resolved by all Judges, that there could not be, that little change but of one word (that doth so limit such Commissions) but by consent of Parliament of both Kingdoms.

And in divers Parliaments of Ed. 1. Ed. 3. Hen. 4th. there were many Statutes made, to limit all Commissions of Oyer and Terminer; as that they must never be granted, but before; and to some of the Iudges, of the Benches, or of the Grand Eyre. Nor those to be named by Parties, but by the Court: And with this usual Restriction according to the known clause of the Statute of Westminster the 2d. in the Reign of Edward the 1st.

But the Printed Statute must be compared with the Roll, and with the 2d of Ed. the 3d. for else, there may be in this (as in other Printed Acts) a great mistake, by leaving out, or changing one particle: for that Clause, except it be for heinous offence, hath such influence into all the words before; that by the known Common Law a Supersedeas doth lye to such Commissions, quia non enormis Transgressio; as the Register may teach us.

And although by Law there may be granted a Commission of Association; with a Writ of Admittance, of others, to the Iudges, assigned for Oyer and Terminer: yet in all those Commissions and Writs the Rule must be prescribed, quod ad Iustitiam pertinet; and that also according to the Law and Custom of the Kingdom, which is so much the Law of Nature, that I need not wonder at the great Judg, who in all his Institutes, and so many Reports, maketh p. 303those words absolutely necessary to the work of a Lawful Commission.

And for more prevention, or Redress of injustice and Arbitrary Process, were our Ancestors so punctual in requiring Records of all Proceedings in the Courts of Justice; which is so agreable to Reason, and the Law of Nature, That the whole Parliament of England, as I humbly conceive, cannot it self proceed in matters of highest concernment, but by Record. Much less can it Licence other Courts, to be without, or above Record in such Affairs.

It is so well known to be the custom of the Kingdom, that I shall not need to shew it in the Statute of York, in Edw. 2d. and many others, in affirmance of the great Charter, nisi per Legem Terrae (But by the Law of the Land.)

And in Edw. 3d. it was, in full Parliament declared to be the Law of the Land; that none should be put to answer but upon presentment before Iustices, or matter of Record.

And the 2d. of Westminster is very punctual in requiring Records for all legal exceptions, (as well as other matters;) and provideth, that in case an Exception should not appear on Record, the Party must produce the Iudge's Seal; which may be required by Writ, and cannot be denied; no not in such Exceptions as the present Court do over-rule.

And for Enrolling Records, the same Statute provideth, That the King should not Erect Offices, or Elect Officers for Enrollment; Fot that by the Common Law p. 304this did belong to the Courts themselves, and Judges therein: As to the Sheriff also, to Elect the County Clerk for Enrollments; so that the King himself could not Elect him, as we find in Mitton's Case. So punctual is our Law, in all, concerning Rolls, Enrollments and Records.

Which is also the Law of Nature; and for many Reasons. As for that of Appeal, to which all Courts on Earth must willingly submit. Nay Heaven it self admits Appeal, from its justice to its mercy; so it would to Justice also by some Writ of Error if it could commit an error. But however, that its Judgments may be cleared to be just, it also proceedeth by Record. For God hearkeneth, as the Prophet saith, when ought is good, (when they meet and speak well together; a Record is made, and bound up as a Jewel;) and when evil also, some are Watchers to Record it. For the Books shall be opened, and we shall all be judged by the Record of Heaven, and our own Consciences, which are now foul Draughts, but shall then be as fair and clear as those of Heaven it self.

But in Courts on Earth, if there be no Records, there is scarce devisable a legal Traverse or Tryal, whether all be right, or appeal if any thing be wrong. For what Appeal can any man make from that which doth not appear? but it is only a Transient Air or Breath, which may as soon be denied as it was spoken!

How can Errors, not appearing, be corrected or amended by the Parliament it self, or any other Court, p. 305but onelyonly that keepeth Records of all our thoughts, as much as of our words or actions.

I may be tedious in shewing how our Law hath ever allowed Appeals in Ecclesiasticals; They were agreed in the Assizes of Clarendon in opposition to Appeals Foreign, which were first attempted by Anselm, as some affirm, but the Date is later. And the Lord Dier, of Appeals, is now printed in the 4th. part of Institutes.

The Judgment of Delegates, on such Appeals, is called definitive: And yet not so but that it may be all redressed by a Court below the Parliament: for which we have the Commission of Review granted upon the Delegates; nay and upon High Commission it Self, as by a Clause in that Commission appeareth. To which may be added Killingworth's Case, and divers others.

Of the Court Admiral, much I might add from the Laws of Olerom in Richard the 1st. and the Rolls of Henry the 3d. and Edward the 1st. of which also the Commentator on Littleton's continual Claim; and the 22 Chapter of the last part of Institutes. How it lieth open to the common Law, and to daily Prohibitions, may be fully seen in its Complaints to King Iames, which were as fully answered by all the Judges.

It is no Court of Record, and so did all the Judges declare in 8 Iacobi; yet it must keep Records enough to ground an Appeal; which lieth from thence (as from Courts Ecclesiastical) to Iudges delegate; of which the 8th of Elizabeth, and other Statutes.

p. 306County, Hundred, Baron Courts; and those of Antient Demesne, (with all Close Writs) are not of Record. The Sutors are the Iudges (as was said before) in Cases not their own. And some have thought they did proceed (much by fancie) without legal Proof and Witnesses, till the great Charter, commanding all Bayliffs to put no man upon Oath, without faithful Witnesses. But we have found the Charter long before King Henry the 3d. And in that Phrase of Bayliffs (which in France are Governours and Magistrates, as in eldest Towns or Cities with us) some great Lawyers include all Iudges, as Fleta with the Mirror; which also calleth Coroners the Peoples Bayliffs; and the Sheriffs Returns are de Baliva.

These inferiour Courts being not of Record, held petty Pleas of Debt or Damages, under 40 s: (Antient Demesn had other prviledges) but not of forceable Trespass, Vi & Armis (finable to the Crown.) Yet these also must keep Copies or some such Records as may suffice for Appeals. For they may be questioned, and their Proceedings being denied shall be Tryed by Iury, and upon their judgments lyeth a Writ of false judgment; not a Writ of Error.

But in the Case of Redisseison the Sheriff is Iudg by the Statute of Merton; and a Writ of Error lieth on his judgment. But in Case of Debt, Detinue, Trespass, or other action above 40 s. where in the County the Sheriff holdeth Plea by force of a Writ (or Commission) of Iustices; the Sutors are still the Iudges, and no Writ of Error, but false judgment lieth on them. Nor doth p. 307the Coroner's judgment of Out-Lawry in the County Court forfeit Goods till it be returned and appear on Record▪ Nay, the Coroners Certificate, on a Certiorari, did not disable the Out-Law (although the King might seize his Goods) till the Return of the Exigent, Quinquies Exact.

But a Writ of Error is proper to Record, and from Record, and a Plea of Nul tiel Record is not tryable by Witness or Iury, but onelyonly by it self in a Court Record. Such are the Sheriffs Turns, and from them (as from Counties, Hundreds) came the Court Leets; which may be held by prescription against the Great Charter: In which Leets the Steward is Iudg; as in the Turns the Sheriff and Bishop was, till the first Norman, who by Parliament exempted the Clergy (as was touched before.) But the Laws of Henry I. bring them again into the Seculars. So also the 10th. of Marlbridg; and before it the Laws of Clarenden for all Barons, or Tenant in Capite to attend the Great Court till Sentence of Life or Member, which continued long in the Parliament also.

The Turn enquireth of Common Nusance, and of Felonies; de Furtis & medletis, whence our Chance, or Chaud Medly; hot Debate or sudden Fray: see the Notes on Hengham) but not of Murder, or Death of Man; which alone (of all Felony) belongeth to the Coroner. He was a very antient Officer, and ought to be made a Knight; for which the Register and Rolls of Edward the 3d. where a Merchant, chosen Coroner, was removed, quia communis Mercator. He must have a p. 308good Estate, and might receive nothing (of Subjects) fot doing his Office. But by late Statute he hath a Mark on Indictment of Murder: yet upon Death by misadventure he must take nothing. See the Comments on the 1st. of Westminster.

The Coroner's Court is of Record; and he may take Appeals as well as Indictments (upon view of the Body) and must enter them, but cannot proceed, but deliver them up to the Iustices (which is as antient as the Great Charter) for the next Gaol-delivery, or the King's Bench sometimes also; he is locum tenens to the Sheriff; and he standeth when the King dieth. When also so many think there is no Sheriff; but it may be more considered.

I must not stay in the Court of Peepoudres, (incident to every Fair or Market, as a Court Baron to a Mannor) although it be a Court of Record; and a Writ of Error lyeth on its judgment; for which Iones and Hall's Case in the 10th Part of Reports, and in the 4th Institutes.

I need not speak of Writs of Error from the Common Pleas to the Kings Bench; from the King's Bench to the Exchequer-Chamber; and from thence (as from the King's Bench also) to the Parliament; or of the known Statute of Henry the 6th. making it Felony to steal, withdraw, or avoid Records, or any parcel of Record.

p. 309But of no Records, is the Law more punctual than in of extraordinary Cases, of Oyer and Terminer, which were more private oft, and less fixed, being transient on emergent Cases; which yet being heinous, seemed to require most exact Records, especially because there might be Appeal so just and needful, if the Judges exceeded but one tittle of their Commission.

If it were discontinued or expired, then the Indictment and all Records were to meet in their proper Center at the King's Bench: but in other Cases Records of Oyer and Terminer were sent into the Exchequer. So in Edw. the 3d. As in Elizabeth, Results on charitable uses, and the like, were to the Chancery by Act of Parliament.

The great Seal was the Soul to inform and actuate the Body of Records in all exemplifications from the Rolls; in all Writs Pattents or Commissions; and the rather also, that by this nothing of moment might be hudled up, but duly weighed and considered, while it passed so many hands and judgments as it should before the Sealing.

Nor shall I add, that an Act of Parliament it Self is not pleadable in a Court of Record, but from Record, or under the Seal; whence the old custom was to remove the Records of Parliament by a Writ of Certiorari into the Chancery; thence, by the Lord Chancellor, into the Kings Bench; and thence, by a Mittimus into the Common Plea and Exchequer; with an usual Writ commanding p. 310all the Courts to keep and observe such Acts of Parliament, which of Old were Proclaimed by the Sheriffs, and were put under the Seal; (as we may see by the Proclamation now printed among the Statutes of Edw. the 3d.) and they were not hudled into Print in those Days; not of such vertue in Print as on Record, and under the Seal. For there were not then such Printers, or Copiers that (without much caution) our fore-Fathers durst trust with all their Lives and Estates; which by one dash of a Pen the change of a not, a with, a to, a for or a from, might be soon destroyed or enslaved.

Much less then should a Court of Record be Created but by Record; yea, and that be shewed under the Seal also. For when the Seal was moulded, our Ancestors ordained that no Jurisdiction should be grantable but under the Seal, which should be known, and obeyed by all the People; as the Mirror discourseth at large.

In Edw. the 4th. it was resolved by all the Judges, in the Exchequer-Chamber, that no man could be a Iudg or Iustice by Writ (which was also Sealed) but by open Pattent, or a publick Commission. But the Lord Chief Iustice of England hath of late no such Commission or Pattent, yea a Sealed Writ; and of Old he was also Created by Pattent till about the end of King Henry the 3d. if good Authors deceive me not.

p. 301It seemeth also somewhat disputable, whether he were not included in the Statute of Henry the 8th. for Commissions to the Judges, by Letters Pattent under the Seal.

However, the words are plain enough, for Iustices of Eyre; which of Old were also by Writ, as those of Oyer and Terminer; but now not to be but by Comission, or Pattent under the Great Seal.

Which Commission should also be read and shewed in Court lest there be some kind of Demurrer, or exception unto jurisdiction, which hath been in some Cases at the Kings Bench, and may be by Law to all now Judges by special Commission, except it be produced under the Seal, if the old Books deceive us not; who do do not onelyonly ascribe all jurisdiction to the Seal, but in all legal exceptions ever admit of that to the Iudg, if he be a Party, or have not jurisdiction, or be otherwise incompetent.

That the Parliament also will never Erect or Create any Court of Record, but by Record, and open Commission under the Great Seal, I do the rather believe, because the Seal is so proper and peculiar to the Parliament, being made by common consent; (of which the Mirror, and others at large) and by such common consent used and committed to the special care of the Chancellor, or Lord Keeper of England, as he was called for keeping that which our Fathers esteemed as the Kingdoms Key or Clavis.

p. 312It is well known how King Henry the 3d. was brought to acknowledg, That among all great Officers the Lord Keeper or Chancellor did especially belong to the Choice of the Parliament: and Ralph Nevil among others refused to yield up the Seal to the King when it was demanded, saying that he had received it by the Common Councel of the Kingdom, and without their Warrant he would not deliver it; of which both Matthew Paris, and Matthew of Westminster.

From the continual use of this Seal in Parliament, it is the Law and Custom of the Kingdom, that the Lord Keeper shall have place in Parliament still to be there with the Sael (although he be often no Peer, and have no Vote but) for making and Sealing of Charters, Pattents, Commissions and Writs framed by Parliament.

For although the Register (made or continued by Parliament,) be now so full that there be little need; yet the framing of New Writs was a great work of Old Parliaments, as appeareth in the Books and Statutes, as in that of Westminster the 2d. de Casu consimili.

And as if the Parliament had made no Laws at all, but onelyonly New Writs the Old Modus brancheth out all the Laws of Parliament into Originals, Iudicials and Executives, which all know to he the Division of Writs; Those especially de Cursu, drawn by the Cursitors; for Brevia Magistralia were let to p. 307be framed by the Masters of Chancery, as appeareth at large in Bracton and Fleta and in the Oath of the Six Clerks, or other Clerks of Chancery in Ed. 3 with that of Ed. 1. de casu continili; in which Statute it is asol provided, that if the Masters could not agree in framing such a new Writ, they might, if they saw cause, respit the Parties till the next Parliament, that so it might be formed by Advice of all the great Lawyers of the Kingdom.

Yet besides this of making and sealing of Writs, there was another work, and great use of the Masters of Chancery in Parliament: Which was the Receiving of Petitions, (As the Rolls of most times witness) It being the old Mode; and others accounted it somewhat against Reason, that Petitions should be taken and brought into the House, by those that were to debate and determine them, and so might at pleasure keep them Out, or too hastily might press them in.

Whereas they were to be filled up in course, and so to be debated as they were received, which was therefore entrusted to the care of known and sworn Officers of the Kingdom: Although of late, their work in Parliament be so strangely degenerate from that it was of old: when also beside Receivers, there were some appointed for Tryers of Petitions, who (as it seemeth) were to enquire of matter of Fact, expressed in the Petition, that it might be cleared and rightly stated before it came to be debated in full Parliament.

p. 314I do not deny but these Triers of Petitions were most frequently some of the Bishops, and other Barons: But by this I am not convinced, that the Lords had by Right and Legislative Power, or were the sole Determinors of all Petitions, as some would infer; or that they were the sole Judges; except also the Petty Jury that are Tryers of Fact, shall be esteemed the sole Judges of Matters of Law.

And yet I shall not deny, but Petitions concerning abuses or errors in Judicature were often deermined by the Lords as the great Judges; but of error in the King's Bench, as Judges above the King, (as was shewed before) or from the Exchequer. In Queen Ellzabeths Time, for the seldom meeting, or great Affairs of Parliament, the Writs of Error from the King's Bench were by special Act of Parliament to be brought before the Judges of the Common Pleas, and Barons of the Exchequer, and by them to be determined.

But with these express Limitations, as the Law shall require; other than for Errors to be assigned, or found, for, or concerning the Iurisdiction of the said Court of Kings Bench, or for want of form in any Writ, Process, Verdict &c. and that after all, the Records, and all concerning them, be remanded to the King's Bench, as well for execution as otherwise, as shall appertain; and (with this express Proviso) That any Party agrieved by such Iudgment, in the Exchequer, shall and may sue in Parliament p. 315for a further and due Examination.

By which I do not see such Parties agreed were absolutely tied to Petition the Lords onelyonly, although it were onelyonly in a Case judicial. Yet I deny not but in Edward the 3d. there was a Committee made of a Bishop, two Earls, and two Barons to hear and determine all Petitions complaining of Delays or Grievances in Courts of Justice.

But with great Limitations, so that they must send for the Records and Judges, which were to to be present, and be heard, and then by good advice of the Chancellor, Treasurer, Judges (and other of the Council) to make an Accord; yet so that all be remanded to the Judges before whom the Cause did first depend, who were then to proceed to Judgment according to the Accord of the said Committee.

And in Case it seemed to them to be such as might not well be determined but in full Parliament; that then the said Records or Tenors should be brought by the said Commitee to the next Parliament; it being the Common Law of the Kingdom, and so expressed in all the old Books, that all new, unwonted, difficult matters of consequence should still be brought and submitted to the Judgment of full Parliament, so that all our Iudges did, and ought to respit such Causes till the next Parliament, of which there be almost innumerable p. 316Precedents in all the Rolls.

Nay, in Richard the 2d. there was a Committee of Lords and Commons appointed to hear and determine all Petitions present in that Parliament. But afterwards it was adjudged and declared, That such a Commission ought not to be given; committing or betraying the High Power of Parliament into a few private hands; as we may learn out of Henry the 4th. beside other times.

Yet the Modi of Parliament admit that some extraordinary Cases, where the Estates could not agree (or the greater part of the Knights, Proctors, Citizens, &c.) There, by consent of the whole Parliament, the Matter might be compromised to 25. chosen out of all Degrees, and to fewer, till at length it might come to 3. who might determine the Case, except that being written it were corrected by Assent of Parliament and not otherwise.

And this seemeth to be the Law of Nature and right Reason, That Delegates should not delegate others, which was one reason why the Commons never made Pracies as the Lords did. Nor might any Committee so determine but there might be Appeal from it to the Parliament. Nor doth the Parliament it Self conclude so, but that there may be Appeal from its self to its self, even to its Iustice if it erre, or at least to its mercy by some motion or Petition.

p. 317In one Parliament of Richard the 2d. it was Enacted, that no man condemned by Parliament should move for Pardon; but another Parliament 10 years after did annul this Branch, as unjust, unreasonable and against the Law and Custom of Parliament. For from this, which is the highest here, there still lieth Appeal from its Self to its Self. For which also, by the Laws and Customs of the Kingdom, there were to be frequent Parliaments, that so the errors or omissions of one (being still human, and therefore errable) might be corrected and amended in another.

By express Statutes of Edw. the 3d. we are to have Parliaments once every year, and oftner if need be. They were of Old three or four times a year, as may be found in all the Old Historians, speaking of the great Feats in the Militia in King Alfred's Time, they were to be twice a year; and that at London as the Mirror affirmeth, which we compared with the Laws of the Confessor: And I speak also of King Edgars and Canutes Laws for the Celeberrimus Conventus ex qualibet Satrapta, which the Great Iudg applieth to the Parliament.

Eternity it self would be a Burthen unto him that is not pleased with his Being: so would Omnipotence to him that is unhappy in his acting: It was therefore goodness in God to limit man, as well in Doing as in Being.

p. 318It was also the Wisdom of our Ancestors to bound and limit out the Being, Acting, and continuing not onelyonly of other Judges, but also of Parliaments.

Yet the Old Modi of Parliament agree in this, That a Parliament should not be Dissolved till all Petitions were discussed and answered; and that after all there should be Proclamation made in some open place, whether any had a Petition or just Address to the Parliament; and if none replied then it was to be Dissolved.

I need not shew the Care of our Ancestors, or former Parliaments for most strict observation of their own good Orders and Customs of Parliament, which are such so just and reasonable, that they well deserve a peculiar Discourse by themselves; and suppose it not impossible to clear them more by the practice and consent of most Ages in this Kingdom, which might also be useful for the Times to come.

And although it might be possible to find some of their old custome fit to be changed; yet my hope is they will retain and observe such Rules of right Reason, good Orders and Customs as may still make this an Happy Nation; and that they will be mindful of their great Trust; for which they are accountable: And however it may be in this World, yet they also must be judged at his coming, who p. 319shall bring every Work into Iudgment with every secret Thing, whether it be good, or whether it be evil? And I am not ashamed both to long and pray for his coming; who is King of Kings, and Lord of Lords; The Prince of Salem, that is Peace, as well as King of Righteousness, Melchizedek, the Lamb upon the white Thone.

All the Creation groaneth; and the Spirit and the Bride saith, come Lord Iesus, come quickly.

FINIS.

End of the text · John Sadler, Rights of the Kingdom (1682)