ouerpasse the vse of the ciuill ordinances vsed in Rome, finallie
brought hither by the Romans, & yet in perfect notice among the
Ciuilians of our countrie, though neuer generallie nor fullie receiued
by all the seuerall regions of this Iland. Certes there are great
numbers of these later, which yet remaine in sound knowlege, and are
to be read, being comprehended for the most part vnder the names of
[Sidenote: Martian Law.]
[Sidenote: Saxon Law.]
[Sidenote: Dane Law.]
the Martian and the Saxon law. Beside these also I read of the Dane
law, so that the people of middle England were ruled by the first, the
west Saxons by the second; as Essex, Norffolke, Suffolke,
Cambridgeshire, and part of Herfordshire were by the third, of all the
rest the most inequall and intollerable. And as in these daies what
soeuer the prince in publike assemblie commanded vpon the necessitie
of his subiects, or his owne voluntarie authoritie, was counted for
law: so none of them had appointed anie certeine place, wherevnto his
people might repaire at fixed times for iustice, but caused them to
resort commonlie to their palaces, where in proper person they would
often determine their causes, and so make shortest worke, or else
commit the same to the hearing of other, and so dispatch them awaie.
Neither had they any house appointed to assemble in for the making of
their ordinances, as we haue now at Westminster. Wherefore Edmund gaue
lawes at London & Lincolne, Ethelred at Habam, Alfred at Woodstock and
Wannetting, Athelstane in Excester, Grecklade, Feuersham, &
Thundersleie, Canutus at Winchester, &c: other in other places,
whereof this may suffice.
Among other things also vsed in the time of the Saxons, it shall not
be amisse to set downe the forme of their Ordalian law, which they
brought hither with them from beyond the seas out of Scithia, and vsed
onelie in the triall of guiltie and vnguiltinesse. Certes it conteined
not an ordinarie procéeding by daies and termes, as in the ciuill and
common law we sée practised in these daies; but a short dispatch &
triall of the matter by fire or water, whereof at this present I will
deliuer the circumstance, as I haue faithfullie translated it out of
an ancient volume, and conferred with an imprinted copie, latelie
published by M. Lambert, and now extant to be read. Neuerthelesse, as
the Scithians were the first that vsed this practise, so I read that
it was taken vp and occupied also in France in processe of time, yea
and likewise in Grecia, as G. Pachymerus remembreth in the first booke
of his historie (which beginneth with the empire of M. Paleologus)
where he noteth his owne sight and vew in that behalfe. But what stand
I herevpon?
[Sidenote: Ordalian law.]
The Ordalian (saith the aforesaid author) was a certeine maner of
[Sidenote: Fire.]
purgation vsed two waies, wherof the one was by fire, the other by
water. In the execution of that which was doone by fire, the partie
accused should go a certeine number of pases, with an hot iron in his
hand, or else bare footed vpon certeine plough shares red hot,
according to the maner. This iron was sometime of one pound weight,
and then was it called single Ordalium, sometimes of thrée, and then
named treble Ordalium, and whosoeuer did beare or tread on the same
without hurt of his bodie he was adiudged guiltlesse, otherwise if his
skin were scorched, he was foorthwith condemned as guiltie of the
trespasse whereof he was accused, according to the proportion and
quantitie of the burning.
[Sidenote: Water.]
There were in like sort two kinds of triall by the water, that is to
say, either by hot or cold: and in this triall the partie thought
culpable, was either tumbled into some pond or huge vessell of cold
water, wherein if he continued for a season, without wrestling or
strugling for life, he was foorthwith acquited as guiltlesse of the
fact wherof he was accused: but if he began to plunge, and labour once
for breath immediatlie vpon his falling into that liquor, he was by
and by condemned as guiltie of the crime. Or else he did thrust his
arme vp to the shoulder into a lead, copper, or caldron of seething
water, from whence if he withdrew the same without anie maner of
damage, he was discharged of further molestation: otherwise he was
taken for a trespasser, and punished accordinglie. The fierie maner of
purgation belonged onelie to noble men and women, and such as were
frée borne: but the husbandmen and villaines were tried by water.
Wherof to shew the vnlearned dealing and blind ignorance of those
times, it shall not be impertinent to set foorth the whole maner,
which continued here in England vntill the time of King Iohn, who
séeing the manifold subtilties in the same (by sundrie sorcerous and
artificiall practises whereby the working of the said elements were
restreined) did extinguish it altogither as flat lewdnesse and
bouerie. The Rubrike of the treatise entereth thus: "_Here beginneth
the execution of iustice, whereby the giltie or vngiltie are tried by
hot iron._ Then it followeth: _After accusation lawfullie made, and
three daies spent in fasting and praier, the priest being clad in all
his holie vestures, sauing his vestiment, shall take the iron laid
before the altar with a paire of tongs, and singing the hymne of the
three children_, that is to saie, O all ye workes of God the Lord, and
in Latine Benedicite omnia opera, &c: _he shall carie it solemnelie to
the fire (alreadie made for that purpose) and first saie these words
ouer the place where the fire is kindled, whereby this purgation shall
be made in Latine as insueth:_ Benedic Domine Deus locum istum, vt sit
nobis in eo sanitas, sanctitas, castitas, virtus, & victoria, &
sanctimonia, humilitas, bonitas, lenitas, & plenitudo legis, &
obedientia Deo patri, & filio, & spiritui sancto. Hæc benedictio sit
super hunc locum, & super omnes habitantes in eo. _In English:_ Blesse
thou O Lord this place, that it may be to vs health, holinesse,
chastitie, vertue, and victorie, purenesse, humilitie, goodnesse,
gentlenesse, and fulnesse of the law, and obedience to God the father,
the sonne, and the holie ghost. This blessing be vpon this place, and
all that dwell in it. _Then followeth the blessing of the fire._
Domine Deus pater omnipotens, lumen indeficiens, exaudi nos, quia tu
es conditor omnium luminum. Benedic Domine hoc lumen, quod ante
sanctificatum est, qui illuminasti omnem hominem venientem in hunc
mundum (vel mundum) vt ab eo lumine accendamur igne claritatis tuæ. Et
sicut igne illuminasti Mosen, ita nunc illumina corda nostra, & sensus
nostros, vt ad vitam æternam mereamur peruenire, per Christum, &c.
Lord God father almightie, light euerlasting, heare vs, sith thou art
the maker of all lights. Blesse O Lord this light, that is alreadie
sanctified in thy sight, which hast lightned all men that come into
the world (or the whole world) to the end that by the same light we
may be lightned with the shining of thy brightnesse. As thou diddest
lighten Moses, so now illuminate our hearts, and our senses, that we
may deserue to come to euerlasting life, through Christ our, &c. _This
being ended let him say the_ Pater noster, &c: _then these words:_
Saluum fac seruum, &c. Mitte ei auxilium Deus, &c. De Sion tuere eum,
&c. Dominus vobiscum, &c. _That is_, O Lord saue thy seruant, &c. Send
him helpe O God from thy holie place, &c. Defend him out of Sion, &c.
Lord heare, &c. The Lord be with you, &c.
"_The praier._ Benedic Domine sancte pater, omnipotens Deus, per
inuocationem sanctissimi nominis tui, & per aduentum filij tui, atque
per donum spiritus paracleti, ad manifestandum verum iudicium tuum,
hoc genus metalli, vt sit sanctificatum, & omni dæmonum falsitate
procul remota, veritas veri iudicij tui fidelibus tuis manifesta fiat,
per eundem Dominum, &c. _In English:_ Blesse we beséech thee O Lord,
holie father, euerlasting God, through the inuocation of thy most
holie name, by the comming of thy sonne, and gift of the holie ghost,
and to the manifestation of thy true iudgement, this kind of mettall,
that being hallowed, and all fraudulent practises of the diuels
vtterlie remoued, the manifest truth of thy true iudgement may be
reuealed, by the same Lord Iesus, &c.
"_After this, let the iron be laid into the fire, and sprinkled with
holie water, and whilest it heateth, let the priest go to masse, and
doo as order requireth: and when he hath receiued the host, he shall
call the man that is to be purged (as it is written hereafter) first
adiuring him, and then permitting him to communicate according to the
maner._
_The office of the masse._
"Iustus es Domine, &c. O Lord thou art iust, &c.
_The Praier._
"Absolue quæsumus Domine delicta famuli tui, vt à peccatorum suorum
nexibus, quæ pro sua fragilitate contraxit, tua benignitate liberetur,
& in hoc iudicio quoad meruit, iustitia tua præueniente, ad veritatis
censuram peruenire mereatur, per Christum Dominum, &c. _That is:_
Pardon we beséech thée O Lord, the sinnes of thy seruant, that being
deliuered from the burden of his offenses, wherewith he is intangled,
he may be cleared by thy benignitie, and in this his triall (so far as
he hath deserued thy mercie preuenting him) he may come to the
knowledge of the truth, by Christ our Lord, &c.
_The Gospell._ Mar. 10.
"In illo tempore, cùm egressus esset Iesus in via, procurrens quidam
genu flexo ante eum, rogabat eum dicens, Magister bone, quid faciam vt
vitam æternam percipiam? Iesus autem dixit ei, Quid me dicis bonum?
&c. In those daies when Iesus went foorth toward his iourneie, and one
méeting him in the waie running, and knéeling vnto him, asked him
saieng: Good master what shall I doo that I may possesse eternall
life? Iesus said vnto him, Whie callest thou me good? &c. _Then
followeth the secret, and so foorth all of the rest of the masse. But
before the partie dooth communicate, the priest shall vse these words
vnto him:_ Adiuro te per patrem, & filium, & spiritum sanctum, & per
veram christianitatem quam suscepisti, & per sanctas relliquias quæ in
ista ecclesia sunt, & per baptismum quo te sacerdos regenerauit, vt
non præsumas vllo modo communicare, neq; accedere ad altare, si hoc
fecisti aut consensisti, &c. I adiure thée by the father, the sonne,
and the holie Ghost, by the true christendome which thou hast
receiued, by the holie relikes which are in this church, and by the
baptisme wherewith the priest hath regenerated thée, that thou presume
not by any maner of means to communicate, nor come about the altar, if
thou hast doone or consented vnto this, whereof thou art accused, &c.
[Sidenote: The cup yet in vse.]
_Here let the priest suffer him to communicate, saieng;_ Corpus hoc, &
sanguis Domini nostri Iesu Christi, sit tibi ad probationem hodie.
This bodie & this bloud of our Lord Iesus Christ, be vnto thee a
triall this daie. _The praier:_ Perceptis Domine Deus noster sacris
muneribus, supplices deprecamur, vt huius participatio sacramenti à
proprijs nos reatibus expediat, & in famulo tuo veritatis sententiam
declaret, &c. Hauing receiued O Lord God these holie mysteries, we
humblie beséech thée that the participation of this sacrament may rid
vs of our guiltinesse, and in this thy seruant set foorth the truth.
_Then shall follow_ Kyrieleson, _the Letanie, and certeine Psalmes,
and after all them_ Oremus: Let vs praie. Deus qui per ignem signa
magna ostendens, Abraham puerum tuum de incendio Chaldæorum quibusdam
pereuntibus eruisti, Deus qui rubum ardere ante conspectum Mosis &
minimè comburi permisisti, Deus qui de incendio fornacis Chaldaicis
plerisque succensis, tres pueros tuos illæsos eduxisti, Deus qui
incendio ignis populum Sodomæ inuoluens, Loth famulum tuum cum suis
salute donasti, Deus qui in aduentu sancti spiritus tui, illustratione
ignis fideles tuos ab infidelibus decreuisti: ostende nobis in hoc
prauitatis nostræ examine virtutem eiusdem spiritus, &c: & per ignis
huius feruorem discernere infideles, vt à tactu eius cuius inquisitio
agitur, conscius exhorrescat, & manus eius comburatur, innocens verò
p[oe]nitus illæsus permaneat, &c. Deus cuius noticiam nulla vnquam
secreta effugiunt, fidei nostræ tua bonitate responde, & præsta vt
quisquis purgandi se gratia, hoc ignitum tulerit ferrum, vel
absoluatur vt innocens, vel noxius detegatur, &c. _In English thus:_ O
God, which in shewing great tokens by fire diddest deliuer Abraham thy
seruant from the burning of the Chaldeis, whilest other perished; O
God which sufferedst the bush to burne in the sight of Moses, and yet
not to consume; O God which deliueredst the thrée children from
bodilie harme in the fornace of the Chaldeis, whilest diuerse were
consumed; O God which by fire didst wrap the people of Sodome in their
destruction, and yet sauedst Lot and his daughters from perill; O God
which by the shining of thy brightnesse at the comming of the holie
ghost in likenesse of fire, diddest separate the faithfull from such
as beléeued not: shew vnto vs in the triall of this our wickednesse,
the power of the same spirit, &c: and by the heat of this fire
discerne the faithfull from the vnfaithfull, that the guiltie whose
cause is now in triall, by touching thereof, may tremble and feare,
and his hand be burned, or being innocent, that he may remaine in
safetie, &c. O God from whome no secrets are hidden, let thy goodnesse
answer to our faith, and grant that whosoeuer in this purgation, shall
touch and beare this iron, may either be tried an innocent, or
reuealed as an offender, &c. _After this the priest shall sprinkle the
iron with holie water saieng:_ The blessing of the father, the sonne,
and the holie ghost, be vpon this iron, to the reuelation of the iust
iudgement of God. _And foorthwith let him that is accused beare it, by
the length of nine foot, and then let his hand be wrapped and sealed
vp for the space of three daies: after this if any corruption or raw
flesh appeare where the iron touched it, let him be condemned as
guiltie: if it be whole and sound, let him giue thanks to God._" And
[Sidenote: Water.]
thus much of the firie Ordalia, wherevnto that of the water hath so
precise relation, that in setting foorth of the one, I haue also
described the other, wherefore it shall be but in vaine to deale anie
further withall.
Hitherto also (as I thinke) sufficientlie of such lawes as were in vse
before the conquest. Now it resteth that I should declare the order of
those, that haue beene made and receiued since the comming of the
Normans, referred to the eight alteration or change of our maner of
gouernance, and therevnto doo produce thrée score and foure seuerall
courts. But for asmuch as I am no lawier, and therefore haue but
little skill to procéed in the same accordinglie, it shall suffice to
set downe some generall discourse of such as are vsed in our daies,
and so much as I haue gathered by report and common heare-saie.
[Sidenote: Ciuill law.]
We haue therefore in England sundrie lawes, and first of all the
ciuill, vsed in the chancerie, admeraltie, and diuerse other courts,
in some of which, the seuere rigor of iustice is often so mitigated by
conscience, that diuerse things are thereby made easie and tollerable,
which otherwise would appeare to be méere iniurie and extremitie.
[Sidenote: Canon law.]
We haue also a great part of the Canon law dailie practised among vs,
especiallie in cases of tithes, contracts of matrimonie, and such
like, as are vsuallie to be séene in the consistories of our bishops
and higher courts of the two archbishops, where the exercise of the
same is verie hotlie followed. The third sort of lawes that we haue
are our owne, & those alwaies so variable, & subiect to alteration and
change, that oft in one age, diuerse iudgements doo passe vpon one
maner of case, whereby the saieng of the poet,
"Tempora mutantur, & nos mutamur in illis,"
[Sidenote: Lawiers of England not alwaies constant in iudgment.]
may verie well be applied vnto such, as being vrged with these words;
In such a yeare of the prince, this opinion was taken for sound law;
doo answer nothing else, but that the iudgement of our lawiers is now
altered, so that they saie farre otherwise. The regiment that we haue
therefore after our owne ordinances, dependeth vpon thrée lawes, to
wit, Statute law, Common law, Customarie law, and Prescription,
according to the triple maner of our trials and iudgments, which is by
parlement, verdict of twelue men at an assise, or wager of battell, of
which the last is little vsed in our daies, as no appeale dooth hold
in the first and last rehearsed. But to returne to my purpose.
[Sidenote: Parlement law.]
The first is deliuered vnto vs by parlement, which court, being for
the most part holden at Westminster néere London, is the highest of
all other, & consisteth of three seuerall sorts of people, that is to
saie, the nobilitie, cleargie, and commons of this realme. And thereto
is not summoned, but vpon vrgent occasion when the prince dooth see
his time, and that by seuerall writs, dated commonlie full six wéekes
before it begin to be holden. Such lawes as are agreed vpon in the
higher house by the lords spirituall and temporall, and in the lower
house by the commons and bodie of the realme (whereof the conuocation
of the cleargie holden in Powles, or if occasion so require in
Westminster church, is a member) there speaking by the mouth of the
knights of the shire and burgesses, remaine in the end to be confirmed
by the prince, who commonlie resorteth thither of custome, vpon the
first and last daies of this court, there to vnderstand what is doone,
and giue his roiall consent to such statutes as him liketh of. Comming
therefore thither into the higher house, and hauing taken his throne,
the speaker of the parlement (for one is alwaies appointed to go
betwéene the houses, as an indifferent mouth for both) readeth openlie
the matters there determined by the said thrée estates, and then
craueth the princes consent and finall confirmation to the same. The
king hauing heard the summe and principall points of each estatute
brieflie recited vnto him, answereth in French with great deliberation
vnto such as he liketh ("Il nous plaist") but to the rest "Il ne
plaist," whereby the latter are made void and frustrate. That also
which his maiestie liketh of, is hereby authorised, confirmed, & euer
after holden for law, except it be repealed in anie the like
assemblie. The number of the commons assembled in the lower house,
[Sidenote: Number of congregates in the parlement.]
beside the cleargie, consisteth of ninetie knights. For each shire of
England hath two gentlemen or knights of greatest wisedome and
reputation, chosen out of the bodie of the same for that onelie
purpose, sauing that for Wales one onlie is supposed sufficient in
euerie countie, whereby the number afore mentioned is made vp. There
are likewise fourtie and six citizens, 289 burgesses, and fouretéene
barons, so that the whole assemblie of the laitie of the lower house,
consisteth of foure hundred thirtie and nine persons, if the iust
number be supplied. Of the lawes here made likewise some are penall
and restraine the common law, and some againe are found to inlarge the
same. The one sort of these also are for the most part taken strictlie
according to the letter, the other more largelie and beneficiallie
after their intendment and meaning.
[Sidenote: Common law.]
The Common law standeth vpon sundrie maximes or principles, and yeares
or termes, which doo conteine such cases as by great studie and
solemne argument of the iudges sound practise confirmed by long
experience, fetched euen from the course of most ancient lawes made
farre before the conquest, and thereto the déepest reach and
foundations of reason, are ruled and adiudged for law. Certes these
cases are otherwise called plees or action, wherof there are two
sorts, the one criminall and the other ciuill. The meanes and
messengers also to determine those causes are our writs or bréefes,
whereof there are some originall and some iudiciall. The parties
plaintiffe & defendant when they appeare procéed (if the case doo so
require) by plaint or declaration, barre or answer, replication,
reioinder, and so by rebut, surrebut to issue and triall if occasion
so fall out, the one side affirmatiuelie, the other negatiuelie as
common experience teacheth. Our trials and recoueries are either by
verdict and demourre, confession or default, wherein if anie
negligence or trespasse hath béene committed, either in processe and
forme, or in matter and iudgement, the partie grieued may haue a writ
of errour to vndoo the same, but not in the same court where the
former iudgement was giuen.
[Sidenote: Customarie law.]
Customarie law consisteth of certeine laudable customes vsed in some
priuat countrie, intended first to begin vpon good and reasonable
considerations, as gauell kind, which is all the male children
equallie to inherit, and continued to this daie in Kent: where it is
onelie to my knowledge reteined, and no where else in England. It was
at the first deuised by the Romans, as appeareth by Cæsar in his
c[=o]mentaries, wherein I find, that to breake and daunt the force of
the rebellious Germans, they made a law that all the male children (or
females for want of males which holdeth still in England) should haue
their fathers inheritance equallie diuided amongst them. By this
meanes also it came to passe, that whereas before time for the space
of sixtie yeares, they had put the Romans to great and manifold
troubles, within the space of thirtie yeares after this law made,
their power did wax so feeble, and such discord fell out amongst
themselues, that they were not able to mainteine warres with the
Romans, nor raise anie iust armie against them. For as a riuer runing
with one streame is swift and more plentifull of water than when it is
drained or drawne into manie branches: so the lands and goods of the
ancestors being dispersed amongst their issue males, of one strong
there were raised sundrie weake, whereby the originall or generall
strength to resist the aduersarie, became infeebled and brought almost
to nothing. "Vis vnita (saith the philosopher) fortior est eadem
dispersa," and one good pursse is better than manie euill, and when
euerie man is benefited alike, each one will séeke to mainteine his
priuate estate, and few take care to prouide for publike welfare.
Burrow kind, is where the yoongest is preferred before the eldest,
which is the custome of manie countries of this region; also the woman
to haue the third of hir husbands possessions, the husband that
marieth an heire to haue such lands as moue by hir during his naturall
life, if he suruiue hir, and hath a child by hir which hath béene
heard crie thorough foure wals, &c: of such like to be learned
elsewhere, and sometimes frequented generallie ouer all.
[Sidenote: Prescription.]
Prescription is a certeine custome, which hath continued time out of
minde, but it is more particular than customarie law, as where onelie
a parish or some priuat person dooth prescribe to haue common, or a
waie in another mans soile, or tithes to be paid after this or that
maner, I meane otherwise than the common course and order of the law
requireth, whereof let this suffice at this time, in stéed of a larger
discourse of our owne lawes, least I should seeme to enter farre into
that whereof I haue no skill. For what hath the meditation of the law
of God to doo with anie precise knowledge of the law of man, sith they
are seuerall trades, and incident to diuerse persons?