[Sidenote: Samothes.]
That Samothes or Dis gaue the first lawes to the Celtes (whose
kingdome he erected about the fiftéenth of Nimbrote) the testimonie of
Berosus is proofe sufficient. For he not onelie affirmeth him to
publish the same in the fourth of Ninus, but also addeth thereto, how
there liued none in his daies of more excellent wisdome, nor politike
inuention than he, whereof he was named Samothes, as some other do
affirme. What his lawes were, it is now altogither vnknowne, as most
things of this age; but that they were altered againe at the comming
[Sidenote: Albion.]
of Albion, no man can absolutelie denie, sith new lords vse commonlie
to giue new lawes, and conquerors abolish such as were in vse before
them.
[Sidenote: Brute.]
The like also may be affirmed of our Brute, notwithstanding that the
certeine knowledge so well of the one as of the other is perished, and
nothing worthie memorie left of all their dooings. Somewhat yet we
[Sidenote: Mulmutius.]
haue of Mulmutius, who not onelie subdued such princes as reigned in
this land, but also brought the realme to good order, that long before
had béene torne with ciuill discord. But where his lawes are to be
found, and which they be from other mens, no man liuing in these daies
is able to determine.
Certes, there was neuer prince in Britaine, of whome his subiects
conceiued better hope in the beginning, than of Bladudus, and yet I
read of none that made so ridiculous an end: in like sort there hath
not reigned anie monarch in this Ile, whose waies were more feared at
[Sidenote: The praise of Dunwallon.]
the first, than those of Dunwallon (king Henrie the fift excepted) and
yet in the end he prooued such a prince, as after his death there was
in maner no subiect, that did not lament his funerals. And this onelie
for his policie in gouernance, seuere administration of iustice, and
prouident framing of his lawes and constitutions, for the gouernment
of his subiects. His people also, coueting to continue his name vnto
posteritie, intituled those his ordinances according to their maker,
calling them by the name of the lawes of Mulmutius, which indured in
execution among the Britons, so long as our homelings had the dominion
of this Ile. Afterward when the comeling Saxons had once obteined the
superioritie of the kingdom, the maiestie of those lawes fell for a
time into such decaie, that although "Non penitùs cecidit, tamen
potuit cecidisse videri," as Leland saith, and the decrées themselues
had vtterlie perished in déed at the verie first brunt, had they not
beene preserued in Wales, where they remained amongst the relikes of
the Britons, & not onlie vntill the comming of the Normans, but euen
vntill the time of Edward the first, who obteining the souereigntie of
that portion, indeuoured verie earnestlie to extinguish those of
Mulmutius, and to establish his owne.
But as the Saxons at their first arriuall did what they could to
abolish the British lawes, so in processe of time they yéelded a
little to relent, & not so much to abhorre and mislike of the lawes of
Mulmutius, as to receiue and imbrace the same, especiallie at such
time as the said Saxon princes entered into amitie with the British
nobilitie, and after that began to ioine in matrimonie with the
British ladies, as the British barons did with the Saxon frowes, both
by an especiall statute and decrée, wherof in another treatise I haue
made mention at large. Héerof also it came to passe in the end, that
they were contented to make a choise, and insert no small numbers of
them into their owne volumes, as may be gathered by those of Athelbert
the great, surnamed king of Kent, Inas and Alfred kings of the west
Saxons, and diuerse other yet extant to be séene. Such also was the
lateward estimation of them, that when anie of the Saxon princes went
about to make new ordinances, they caused those of Mulmutius (which
Gildas sometime translated into Latine) to be first expounded vnto
them, and in this perusall if they found anie there alreadie framed,
that might serue their turnes, they foorthwith reuiued the same, and
annexed them to their owne.
But in this dealing, the diligence of Alfred is most of all to be
commended, who not onelie chose out the best, but gathered togither
all such whatsoeuer the said Mulmutius had made: and then to the end
they should lie no more in corners as forlorne bookes, and vnknowne to
the learned of his kingdome, he caused them to be turned into the
Saxon toong, wherein they continued long after his decease.
As for the Normans, who for a season neither regarded the British, nor
cared for the Saxon statutes, they also at the first vtterlie misliked
of them, till at the last, when they had well weied that one kind of
regiment is not conuenient for all peoples, and that no stranger,
being in a forren countrie newlie brought vnder obedience, could make
such equall ordinances, as he might thereby gouerne his new
common-wealth without some care & trouble: they fell in with such a
desire to sée by what rule the state of the land was gouerned in time
of the Saxons, that hauing perused the same, they not onelie commended
their maner of regiment, but also admitted a great part of their lawes
(now currant vnder the name of S. Edwards lawes, and vsed as
principles and grounds) whereby they not onelie qualified the rigor of
their owne, and mitigated their almost intollerable burden of
seruitude which they had latelie laid vpon the shoulders of the
English, but also left vs a great number of the old Mulmutian lawes,
whereof the most part are in vse to this daie as I said, albeit that
we know not certeinlie how to distinguish them from others, that are
in strength amongst vs.
[Sidenote: Martia.]
After Dunwallon, the next lawgiuer was Martia, whome Leland surnameth
Proba; and after him Iohn Bale also, who in his Centuries dooth
iustlie confesse himselfe to haue béene holpen by the said Leland, as
I my selfe doo likewise for manie things conteined in this treatise.
Shée was wife vnto Gutteline king of the Britons: and being made
protectrix of the realme, after hir husbands deceasse in the nonage of
hir sonne, and séeing manie things dailie to grow vp among hir people
worthie reformation, she deuised sundrie and those verie politike
lawes, for the gouernance of hir kingdome, which hir subiects when she
was dead and gone, did name the Martian statutes. Who turned them into
Latine, as yet I doo not read, howbeit (as I said before of the lawes
of Mulmutius) so the same Alfred caused those of this excellentlie
well learned ladie (whome diuerse commend also for hir great knowledge
in the Gréeke toong) to be turned into his owne language, wherevpon it
came to passe that they were dailie executed among his subiects,
afterward allowed of (among the rest) by the Normans, and finallie
remaine in vse in these our daies, notwithstanding that we can not
disseuer them also verie readilie from the other.
The seuenth alteration of lawes was practised by the Saxons, for I
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?
There are also sundrie vsuall courts holden once in euerie quarter of
[Sidenote: Terme.]
the yeare, which we commonlie call termes, of the Latine word
Terminus, wherein all controuersies are determined, that happen within
the Quéenes dominions. These are commonlie holden at London, except
vpon some great occasion they be transferred to other places. At what
times also they are kept both for spirituall and temporall dealing,
the table insuing shall easilie declare. Finallie how well they are
followed by sutors, the great wealth of lawiers without anie trauell
of mine can readilie expresse. For as after the comming of the Normans
the nobilitie had the start, and after them the cleargie: so now all
the wealth of the land dooth flow vnto our common lawiers, of whome
some one hauing practised little aboue thirteene or fourtéene yeares
is able to buie a purchase of so manie 1000 pounds: which argueth that
they wax rich apace, and will be richer if their clients become not
the more wiser & warie hereafter. It is not long, since a sergeant at
the law (whome I could name) was arrested vpon an extent, for thrée or
foure hundred pounds, and another standing by did greatlie maruell
that he could not spare the gaines of one terme for the satisfaction
of that dutie. The time hath béene that our lawiers did sit in Powles
vpon stooles against the pillers and walles to get clients, but now
some of them will not come from their chambers to the Guildhall in
London vnder ten pounds or twentie nobles at the lest. And one being
demanded why he made so much of his trauell, answered, that it was but
follie for him to go so farre, when he was assured to get more monie
by sitting still at home. A friend of mine also had a sute of late of
some valure, and to be sure of counsell at his time, he gaue vnto two
lawiers (whose names I forbeare to deliuer) twentie shillings a peece,
telling them of the daie and houre wherein his matter should be called
[Sidenote: Deceipt.]
vpon. To be short, they came not vnto the barre at all, whervpon he
staied for that daie. On the morrow after he met them againe,
increased his former gifts by so much more, and told them of the time,
but they once againe serued him as before. In the end he met them both
in the verie hall doore, and after some timorous reprehension, of
their vncourteous demeanour toward him, he bestowed either thrée
angels or foure more vpon each of them, wherevpon they promised
peremptorilie to speake earnestlie in his cause. And yet for all this,
one of them hauing not yet sucked enough, vtterlie deceiued him: the
other in déed came in, and wagging a scroll which he had in his hand
before the iudge, he spake not aboue thrée or foure words, almost so
soone vttered as a good morrow, and so went from the bar, and this was
all the poore man gat for his monie, and the care which his
counsellours did séeme to take of his cause, then standing vpon the
[Sidenote: Manie of our lawiers stoope not at small fées.]
hazard. But inough of these matters, for if I should set downe how
little law poore men can haue for their small fées in these daies, and
the great murmurings that are on all sides vttered against their
excessiue taking of monie (for they can abide no small gaine) I should
extend this treatise into a farre greater volume than is conuenient
for my purpose. Wherfore it shall suffice to haue set downe so much of
their demeanour, and so much as is euen enough to cause them to looke
with somewhat more conscience into their dealings, except they be dull
and senselesse.
This furthermore is to be noted, that albeit the princes heretofore
reigning in this land haue erected sundrie courts, especiallie of the
chancerie at Yorke and Ludlow, for the ease of poore men dwelling in
[Sidenote: Poore men contentious.]
those parts, yet will the poorest (of all men commonlie most
contentious) refuse to haue his cause heard so néere home, but
indeuoureth rather to his vtter vndooing to trauell vp to London,
thinking there soonest to preuaile against his aduersarie, though his
case be neuer so doubtfull. But in this toie our Welshmen doo excéed
of all that euer I heard, for you shall here and there haue some one
od poore Dauid of them giuen so much to contention and strife, that
without all respect of charges he will vp to London, though he go
bare legged by the waie, and carie his hosen on his necke (to saue
their feet from wearing) bicause he hath no change. When he commeth
there also, he will make such importunate begging of his countrimen,
and hard shift otherwise, that he will sometimes carie downe six or
seuen writs with him in his pursse, wherewith to molest his neighbor,
though the greatest quarrel be scarselie worth the fee that he hath
paid for anie one of them. But inough of this, least in reuealing the
superfluous follie of a few brablers in this behalfe, I bring no good
will to my selfe amongst the wisest of that nation. Certes it is a
[Sidenote: Promoters séeke matters to set lawiers on worke withall.]
lamentable case to sée furthermore, how a number of poore men are
dailie abused and vtterlie vndoone, by sundrie varlets that go about
the countrie, as promoters or brokers betwéene the pettie foggers of
the lawe, and the common people, onelie to kindle and espie coales of
contention, whereby the one side may reape commoditie, and the other
spend and be put to trauell. But of all that euer I knew in Essex,
Denis and Mainford excelled, till Iohn of Ludlow, aliàs Mason came in
place, vnto whome in comparison they two were but children: for this
last in lesse than thrée or foure yeares, did bring one man (among
manie else-where in other places) almost to extreame miserie (if
beggerie be the vttermost) that before he had the shauing of his
beard, was valued at two hundred pounds (I speake with the least) and
finallie feeling that he had not sufficient wherwith to susteine
himselfe and his familie, and also to satisfie that greedie rauenour,
which still called vpon him for new fées, he went to bed, and within
foure daies made an end of his wofull life, euen with care and
pensiuenesse. After his death also he so handled his sonne, that
there was neuer shéepe shorne in Maie, so néere clipped of his fléece
present, as he was of manie to come: so that he was compelled to let
awaie his land, bicause his cattell & stocke were consumed, and he no
longer able to occupie the ground. But hereof let this suffice, & in
stéed of these enormities, a table shall follow of the termes
conteining their beginnings and endings, as I haue borrowed them from
my fréend Iohn Stow, whose studie is the onelie store house of
antiquities in my time, and he worthie therefore to be had in
reputation and honour.
[Sidenote: The times of our termes no hinderance to iustice.]
A man would imagine that the time of the execution of our lawes, being
little aboue one quarter, or not fullie a third part of the yeare, and
the appointment of the same to be holden in one place onelie, to wit,
neere London in Westminster, and finallie the great expenses emploied
vpon the same, should be no small cause of the staie and hinderance of
the administration of iustice in this land: but as it falleth out they
prooue great occasions and the staie of much contention. The reasons
of these are soone to be conceiued, for as the broken sleeue dooth
hold the elbow backe, and paine of trauell cause manie to sit at home
in quiet; so the shortnesse of time and feare of delaie dooth driue
those oftentimes to like of peace, who otherwise would liue at strife,
and quickelie be at ods. Some men desirous of gaines would haue the
termes yet made shorter, that more delaie might ingender longer sute;
other would haue the houses made larger, and more offices erected,
wherein to minister the lawes. But as the times of the tearmes are
rather too short than too long by one returne a péece: so if there
were smaller roomes and fowler waies vnto them, they would inforce
manie to make pawses before they did rashlie enter into plée. But sith
my purpose is not to make an ample discourse of these things, it shall
suffice to deliuer the times of the holding of our termes, which
insueth after this manner.
_A perfect rule to know the beginning and ending of euerie terme, with
their returnes._
Hilarie terme beginneth the three and twentith daie of Ianuarie (if it
be not sundaie) otherwise the next daie after, and is finished the
twelfe of Februarie, it hath foure returnes.
Octabis Hilarij.
Quind. Hilarij.
Crastino Purific.
Octabis Purific.
¶ Easter terme beginneth seuentéene daies after Easter, endeth foure
daies after the Ascension daie, and hath fiue returnes.
Quind. Pasch.
Tres Paschæ.
Mense. Paschæ.
Quinque Paschæ.
Crast. Ascention.
¶ Trinitie terme beginneth the fridaie after Trinitie sundaie, and
endeth the wednesdaie fortnight after, in which time it hath foure
returnes.
Crast. Trinitatis.
Octabis Trinitatis.
Quind. Trinitatis.
Tres Trinitatis.
¶ Michaelmasse terme beginneth the ninth of October (if it be not
sundaie) and ending the eight and twentith of Nouember, it hath eight
returnes.
Octabis Michael.
Quind. Michael.
Tres Michael.
Mense Michael.
Crast. anima.
Crast. Martini.
Octa Martini.
Quind. Martini.
Note also that the escheker, which is Fiscus ærarium publicum
principis, openeth eight daies before anie terme begin, except
Trinitie terme, which openeth but foure daies before.
And thus much for our vsuall termes as they are kept for the
administration of our common lawes, wherevnto I thinke good to adde
the lawdaies accustomablie holden in the arches and audience of
Canturburie, with other ecclesiasticall and ciuill courts thorough the
whole yeare, or for somuch time as their execution indureth (which in
comparison is scarselie one halfe of the time if it be diligentlie
examined) to the end each one at home being called vp to answer may
trulie know the time of his appearance; being sorie in the meane
season, that the vse of the popish calendar is so much reteined in the
same, and not rather the vsuall daies of the moneth placed in their
roomes, sith most of them are fixed and palter not their place of
standing. Howbeit some of our infected lawiers will not let them go
awaie so easilie, pretending facilitie and custome of vsage, but
meaning peraduenture inwardlie to kéepe a commemoration of those dead
men whose names are there remembred.
Michaelmas terme.
S. Faith.
S. Edward.
S. Luke.
Simon & Iu.
All Soules.
S. Martin.
Edmund.
Katharine.
S. Andrew.
Conception of the virgin Marie.
¶ It is to be remembred that the first daie following euerie of these
feasts noted in each terme, the court of the arches is kept in Bow
church in the forenoone. And the same first daie in the afternoone is
the admeraltie court for ciuill and seafaring causes kept in
Southwarke, where iustice is ministred & execution doone continuallie
according to the same.
The second daie following euerie one of the said feasts, the court of
audience of Canturburie is kept in the consistorie in Paules in the
forenoone. And the selfe daie in the afternoone, in the same place is
the prerogatiue court of Canturburie holden.
The third day after anie such feast in the forenoone, the consistorie
court of the bishop of London is kept in Paules church in the said
consistorie, and the same third daie in the afternoone is the court of
the delegates, and the court of the Quéenes highnesse commissioners
vpon appeales is likewise kept in the same place on the fourth daie.
Hilarie terme.
S. Hilarie.
S. Wolstan.
Conuersion of S. Paule.
S. Blase.
S. Scolastic.
S. Valentine.
Ashwednes.
S. Matthie.
S. Chad.
Perpet. & Fel.
S. Gregorie.
Ann[=u]ciation of our Ladie.
Note that the foure first daies of this terme be certeine and
vnchanged. The other are altered after the course of the yeare, and
sometime kept and sometime omitted. For if it so happen that one of
those feasts fall on wednesdaie, commonlie called Ashwednesdaie after
the daie of S. Blase (so that the same lawdaie after Ashwednesdaie
cannot be kept bicause the lawdaie of the other feast dooth light on
the same) then the second lawdaie after Ashwednesdaie shall be kept,
and the other omitted. And if the lawdaie after Ashwednesdaie be the
next daie after the feast of S. Blase, then shall all and euerie court
daies be obserued in order, as they may be kept conuenientlie. And
marke that although Ashwednesdaie be put the seuenth in order, yet it
hath no certeine place, but is changed as the course of Easter causeth
it.
Easter terme.
The fiftéenth daie after Easter.
S. Alphege.
S. Marke.
Inuention of the crosse.
Gordian.
S. Dunstan.
Ascension daie.
¶ In this terme the first sitting is alwaie kept the mondaie being the
fiftéenth daie after Easter, and so foorth after the feasts here
noted, which next follow by course of the yeare after Easter, and the
like space being kept betwéene other feasts.
The rest of the lawdaies are kept to the third of the Ascension, which
is the last day of this terme. And if it happen that the feast of the
Ascension of our Lord, doo come before anie of the feasts aforesaid,
then they are omitted for that yeare. And likewise if anie of those
daies come before the fifteenth of Easter, those daies are omitted
also.
Trinitie terme.
Trinitie sundaie.
Corpus Christi.
Boniface bish.
S. Barnabie.
S. Butolph.
S. Iohn.
S. Paule.
Translat. Thomas.
S. Swithune.
S. Margaret.
S. Anne.
Here note also that the lawdaies of this terme are altered by meane of
Whitsuntide, and the first sitting is kept alwaies on the first
lawdaie after the feast of the holie Trinitie, and the second session
is kept the first lawdaie after the idolatrous and papisticall feast
daie called Corpus Christi, except Corpus Christi daie fall on some
day aforenamed: which chanceth sometime, and then the fitter daie is
kept. And after the second session account foure daies or thereabout,
and then looke which is the next feast day, and the first lawdaie
after the said feast shall be the third session. The other law daies
follow in order, but so manie of them are kept, as for the time of the
yeare shall be thought méet.
It is also generallie to be obserued, that euerie daie is called a
lawdaie that is not sundaie or holie daie: and that if the feast daie
being knowne of anie court daie in anie terme, the first or second
daie following be sundaie, then the court daie is kept the daie after
the said holie daie or feast.