OF THE LAWS OF ENGLAND SINCE HER FIRST INHABITATION.
[1577, Book III., Chapter 3; 1587, Book II., Chapter 9.]
That Samothes (or Dis) gave the first laws to the Celts (whose kingdom he
erected about the fifteenth of Nimbrote), the testimony of Berosus is
proof sufficient. For he not only affirmeth him to publish the same in the
fourth of Ninus, but also addeth thereto how there lived none in his days
of more excellent wisdom nor politic invention than he, whereof he was
named Samothes, as some other do affirm. What his laws were, it is now
altogether unknown, as most things of this age, but that they were altered
again at the coming of Albion no man can absolutely deny, sith new lords
use commonly to give new laws, and conquerors abolish such as were in use
before them.
The like also may be affirmed of our Brute, notwithstanding that the
certain knowledge, so well of the one as of the other, is perished, and
nothing worthy memory left of all their doings. Somewhat yet we have of
Mulmutius, who not only subdued such princes as reigned in this land, but
also brought the realm to good order that long before had been torn with
civil discord. But where his laws are to be found, and which they be from
other men's, no man living in these days is able to determine.
Certes there was never prince in Britain of whom his subjects conceived
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 any monarch
in this isle whose ways were more feared at the first than those of
Dunwallon (King Henry the First excepted), and yet in the end he proved
such a prince as after his death there was in manner no subject that did
not lament his funeral. And this only for his policy in governance, severe
administration of justice, and provident framing of his laws and
constitutions for the government of his subjects. His people also,
coveting to continue his name unto posterity, entitled those his
ordinances according to their maker, calling them by the name of the "Laws
of Mulmutius," which endured in execution among the Britons so long as our
_homelings_ had the dominion of this isle. Afterwards, when the _comeling_
Saxons had once obtained the superiority of the kingdom, the majesty of
those laws fell for a time into such decay that although "_Non penitus
cecidit, tamen potuit cecidisse videri_," as Leland saith; and the decrees
themselves had utterly perished indeed at the very first brunt had they
not been preserved in Wales, where they remained amongst the relics of the
Britons, and not only until the coming of the Normans, but even until the
time of Edward the First, who, obtaining the sovereignty of that portion,
endeavoured very earnestly to extinguish those of Mulmutius and to
establish his own.
But as the Saxons at their first arrival did what they could to abolish
the British laws, so in process of time they yielded a little to relent,
and not so much to abhor and mislike of the laws of Mulmutius as to
receive and embrace the same, especially at such time as the said Saxon
princes entered into amity with the British nobility, and after that began
to join in matrimony with the British ladies, as the British barons did
with the Saxon _frowes_, both by an especial statute and decree, whereof
in another treatise I have made mention at large. Hereof also it came to
pass in the end that they were contented to make a choice and insert no
small numbers of them into their own volumes, as may be gathered by those
of Athelbert the Great, surnamed King of Kent, Inas and Alfred, kings of
the West Saxons, and divers other yet extant to be seen. Such also was the
lateward estimation of them, that when any of the Saxon princes went about
to make new ordinances they caused those of Mulmutius (which Gildas
sometime translated into Latin) to be first expounded unto them; and in
this perusal, if they found any there already framed that might serve
their turn, they forthwith revived the same and annexed them to their own.
But in this dealing the diligence of Alfred is most of all to be
commended, who not only chose out the best, but gathered together all such
whatsoever the said Mulmutius had made: and then, to the end they should
lie no more in corners as forlorn books and unknown to the learned of his
kingdom, he caused them to be turned into the Saxon tongue, 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 utterly misliked of
them, till at the last, when they had well weighed that one kind of
regiment is not convenient for all peoples (and that no stranger, being in
a foreign country newly brought under obedience, could make such equal
ordinances as he might thereby govern his new commonwealth without some
care and trouble), they fell in with such a desire to see by what rule the
state of the land was governed in the time of the Saxons that, having
perused the same, they not only commended their manner of regiment, but
also admitted a great part of their laws (now current under the name of
"St. Edward's Laws," and used as principles and grounds), whereby they not
only qualified the rigour of their own, and mitigated their almost
intolerable burden of servitude which they had lately laid upon the
shoulders of the English, but also left us a great number of the old
Mulmutian laws, whereof the most part are in use to this day, as I said,
albeit that we know not certainly how to distinguish them from others that
are in strength amongst us.
After Dunwallon, the next lawgiver was Martia, whom Leland surnameth
_Proba_, and after him John Bale also, who in his _Centuries_ doth justly
confess himself to have been holpen by the said Leland, as I myself do
likewise for many things contained in this treatise. She was wife unto
Gutteline, king of the Britons, and being made protectrix of the realm
after her husband's decease in the nonage of her son, and seeing many
things daily to grow up among her people worthy reformation, she devised
sundry and those very politic laws for the governance of her kingdom,
which her subjects, when she was dead and gone, did name the "Martian
Statutes." Who turned them into Latin as yet I do not read, howbeit (as I
said before of the laws of Mulmutius) so the same Alfred caused those of
this excellently well-learned lady (whom divers commend also for her great
knowledge in the Greek tongue) to be turned into his own language,
whereupon it came to pass that they were daily executed among his
subjects, afterwards allowed of (among the rest) by the Normans, and
finally remain in use in these our days, notwithstanding that we cannot
dissever them also very readily from the other.
The seventh alteration of laws was practised by the Saxons; for I overpass
the use of the civil ordinances used in Rome, finally brought hither by
the Romans, and yet in perfect notice among the civilians of our country,
though never generally received by all the several regions of this island.
Certes there are great numbers of these latter, which yet remain in sound
knowledge, and are to be read, being comprehended for the most part under
the names of 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, Norfolk, Suffolk,
Cambridgeshire, and part of Hertfordshire were by the third, of all the
rest the most unequal and intolerable. And as in these days whatsoever the
prince in public assembly commanded upon the necessity of his subjects or
his own voluntary authority was counted for law, so none of them had
appointed any certain place whereunto his people might repair at fixed
times for justice, but caused them to resort commonly to their palaces,
where, in proper person, they would often determine their causes, and so
make shortest work, or else commit the same to the hearing of other, and
so despatch them away. Neither had they any house appointed to assemble in
for the making of their ordinances, as we have now at Westminster.
Wherefore Edmund gave laws at London and Lincoln, Ethelred at Habam,
Alfred at Woodstock and Wannetting, Athelstane in Excester, Crecklade,
Feversham, and Thundersley, Canutus at Winchester, etc.: other in other
places, whereof this may suffice.[98]
* * * * *
Hitherto also (as I think) sufficiently of such laws as were in use before
the Conquest. Now it resteth that I should declare the order of those that
have been made and received since the coming of the Normans, referred to
the eighth alteration or change of our manner of governance, and thereunto
do produce threescore and four several courts. But for as much as I am no
lawyer, and therefore have but little skill to proceed in the same
accordingly, it shall suffice to set down some general discourses of such
as are used in our days, and so much as I have gathered by report and
common hearsay.
We have therefore in England sundry laws, and first of all the civil, used
in the chancery, admiralty, and divers other courts, in some of which the
severe rigour of justice is often so mitigated by conscience that divers
things are thereby made easy and tolerable which otherwise would appear to
be mere injury and extremity.
We have also a great part of the Canon law daily practised among us,
especially in cases of tithes, contracts of matrimony, and such like, as
are usually to be seen in the consistories of our bishops and higher
courts of the two archbishops, where the exercise of the same is very
hotly followed.
The third sort of laws that we have are our own, and those always so
variable and subject to alteration and change that oft in one age divers
judgments do pass upon one manner of case, whereby the saying of the
poet--
"_Tempora mutantur, et nos mutamur in illis_,"
may very well be applied unto such as, being urged with these words, "_In
such a year of the prince this opinion was taken for sound law_," do
answer nothing else but that "_the judgment of our lawyers is now altered,
so that they say far otherwise_."
The regiment that we have therefore after our own ordinances dependeth
upon three laws, to wit, Statute Law, Common Law, Customary Law and
Prescription, according to the triple manner of our trials and judgments,
which is by Parliament, verdict of twelve men at an assize, or wager of
battle, of which the last is little used in our days, as no appeal doth
hold in the first and last rehearsed. But to return to my purpose.
The first is delivered unto us by Parliament, which court (being for the
most part holden at Westminster, near London) is the highest of all other,
and consisteth of three several sorts of people, that is to say, the
nobility, clergy, and commons of this realm, and thereto is not summoned
but upon urgent occasion when the prince doth see his time, and that by
several writs, dated commonly full six weeks before it begin to be holden.
Such laws as are agreed upon in the higher house by the lords spiritual
and temporal, and in the lower house by the commons and body of the realm
(whereof the convocation of the clergy, holden in Paul's, or, if occasion
so require, in Westminster Church, is a member), there speaking by the
mouth of the knights of the shire and burgesses, remain in the end to be
confirmed by the prince, who commonly resorteth thither of custom upon the
first and last days of this court, there to understand what is done and
give his royal consent to such statutes as him liketh of. Coming therefore
thither into the higher house, and having taken his throne, the speaker of
the parliament (for one is always appointed to between the houses, as an
indifferent mouth for both) readeth openly the matters there determined by
the said three estates, and then craveth the prince's consent and final
confirmation of the same. The king, having heard the sum and principal
points of each statute briefly recited unto him, answereth in French with
great deliberation unto 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 majesty liketh of is hereby authorised, confirmed, and
ever after holden for law, except it be repealed in any like assembly. The
number of the commons assembled in the lower house beside the clergy
consisteth of ninety knights. For each shire of England hath two gentlemen
or knights of greatest wisdom and reputation, chosen out of the body of
the same for that only purpose, saving that for Wales one only is supposed
sufficient in every county, whereby the number aforementioned is made up.
There are likewise forty and six citizens, two hundred and eighty-nine
burgesses, and fourteen barons, so that the whole assembly of the laity of
the lower house consisteth of four hundred thirty and nine persons, if the
just number be supplied. Of the laws here made likewise some are penal and
restrain the common law, and some again are found to enlarge the same. The
one sort of these also are for the most part taken strictly according to
the letter, the other more largely and beneficially after their intendment
and meaning.
The Common Law standeth upon sundry maxims or principles and years or
terms, which do contain such cases as (by great study and solemn argument
of the judges, sound practice confirmed by long experience, fetched even
from the course of most ancient laws made far before the Conquest, and
thereto the deepest reach and foundations of reason) are ruled and
adjudged for law. Certes these cases are otherwise called _pleas_ or
_action_, whereof there are two sorts, the one criminal and the other
civil. The means and messengers also to determine those causes are our
_writs_ or _briefs_, whereof there are some original and some judicial.
The parties _plaintiff_ and _defendant_, when they appear, proceed (if the
case do so require) by _plaint_ or _declaration_, _bar_ or _answer_,
_replication_, _rejoinder_, and so by _rebut_, _surrebut_, to _issue_ and
_trial_, if occasion so fall out, the one side affirmatively, the other
negatively, as common experience teacheth. Our trials and recoveries are
either by _verdict_ and _demur_, _confession_ or _default_, wherein if any
negligence or trespass hath been committed, either in process and form,
or in matter and judgment, the party aggrieved may have a _writ of error_
to undo the same, but not in the same court where the former judgment was
given.
Customary Law consisteth of certain laudable customs used in some private
country, intended first to begin upon good and reasonable considerations,
as _gavelkind_, which is all the male children equally to inherit, and
continued to this day in Kent, where it is only to my knowledge retained,
and nowhere else in England. It was at the first devised by the Romans, as
appeareth by Cæsar in his _Commentaries_, wherein I find that, to break
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 have their father's inheritance equally divided amongst
them. By this means also it came to pass that, whereas before time for the
space of sixty years they had put the Romans to great and manifold
troubles, within the space of thirty years after this law was made their
power did wax so feeble and such discord fell out amongst themselves that
they were not able to maintain wars with the Romans nor raise any just
army against them. For, as a river running with one stream is swift and
more plentiful of water than when it is drained or drawn into many
branches, so the lands and goods of the ancestors being dispersed amongst
their issue males, of one strong there were raised sundry weak, whereby
the original or general strength to resist the adversary became enfeebled
and brought almost to nothing. "_Vis unita_ (saith the philosopher)
_fortior est eadem dispersa_," and one good purse is better than many
evil; and when every man is benefited alike each one will seek to maintain
his private estate, and few take care to provide for public welfare.
_Burrowkind_ is where the youngest is preferred before the eldest, which
is the custom of many countries of this region: also the woman to have the
third of her husband's possessions, the husband that marrieth an heir to
have such lands as move by her during his natural life if he survive her
and hath a child by her which hath been heard cry through four walls, etc.
Of such like to be learned elsewhere, and sometimes frequented generally
over all.
Prescription is a certain custom which hath continued time out of mind,
but it is more particular than customary law, as where only a parish or
some private person doth prescribe to have common, or a way in another
man's soil, or tithes to be paid after this or that manner, I mean
otherwise than the common course and order of the law requireth.
Whereof let this suffice at this time, instead of a larger discourse of
our own laws, lest I should seem to enter far into that whereof I have no
skill. For what hath the meditation of the law of God to do with any
precise knowledge of the law of man, sith they are several trades, and
incident to divers persons?
There are also sundry usual courts holden once in every quarter of the
year, which we commonly call terms, of the Latin word _terminus_, wherein
all controversies are determined that happen within the queen's dominions.
These are commonly holden at London, except upon some great occasion they
be transferred to other places. At what times also they are kept, both for
spiritual and temporal dealing, the table ensuing shall easily declare.
Finally, how well they are followed by suitors, the great wealth of
lawyers without any travel of mine can readily express. For, as after the
coming of the Normans the nobility had the start, and after them the
clergy, so now all the wealth of the land doth flow unto our common
lawyers, of whom some one having practised little above thirteen or
fourteen years is able to buy a purchase of so many one thousand pounds:
which argueth that they wax rich apace, and will be richer if their
clients become not the more wise and wary hereafter. It is not long since
a sergeant at the law--whom I could name--was arrested upon an extent, for
three or four hundred pounds, and another standing by did greatly marvel
that he could not spare the gains of one term for the satisfaction of that
duty. The time hath been that our lawyers did sit in Paul's upon stools
against the pillars and walls to get clients, but now some of them will
not come from their chambers to the Guildhall in London under ten pounds,
or twenty nobles at the least. And one, being demanded why he made so
much of his travel, answered that it was but folly for him to go so far
when he was assured to get more money by sitting still at home. A friend
of mine also had a suit of late of some value, and, to be sure of counsel
at his time, he gave unto two lawyers, whose names I forbear to deliver,
twenty shillings apiece, telling them of the day and hour wherein his
matter should be called upon. To be short, they came not unto the bar at
all; whereupon he stayed for that day. On the morrow, after he met them
again, increased his former gifts by so much more, and told them of the
time; but they once again served him as before. In the end, he met them
both in the very hall door, and, after some timorous reprehension of their
uncourteous demeanour toward him, he bestowed either three angels or four
more upon each of them, whereupon they promised peremptorily to speak
earnestly in his cause. And yet for all this, one of them, not having yet
sucked enough, utterly deceived him: the other indeed came in, and,
wagging a scroll which he had in his hand before the judge, he spake not
above three or four words, almost so soon uttered as a "Good morrow," and
so went from the bar. And this was all the poor man got for his money, and
the care which his counsellors did seem to take of his cause then standing
upon the hazard. But enough of these matters; for, if I should set down
how little law poor men can have for their small fees in these days, and
the great murmurings that are on all sides uttered against their excessive
taking of money--for they can abide no small gain--I should extend this
treatise into a far greater volume than is convenient for my purpose.
Wherefore it shall suffice to have set down so much of their demeanour,
and so much as is even enough to cause them to look with somewhat more
conscience into their dealings, except they be dull and senseless.
This furthermore is to be noted, that albeit the princes heretofore
reigning in this land have erected sundry courts, especially of the
chancery at York and Ludlow, for the ease of poor men dwelling in those
parts, yet will the poorest (of all men commonly most contentious) refuse
to have his cause heard so near home, but endeavoureth rather to his
utter undoing to travel up to London, thinking there soonest to prevail
against his adversary, though his case be never so doubtful. But in this
toy our Welshmen do exceed of all that ever I heard: for you shall here
and there have some one odd poor David of them given so much to contention
and strife that, without all respect of charges, he will up to London,
though he go bare-legged by the way and carry his hosen on his neck (to
save their feet from wearing), because he hath no change. When he cometh
there also, he will make such importunate begging of his countrymen, and
hard shift otherwise, that he will sometimes carry down six or seven writs
with him in his purse, wherewith to molest his neighbour, though the
greatest quarrel be scarcely worth the fee that he hath paid for any one
of them. But enough of this, lest, in revealing the superfluous folly of a
few brablers in this behalf, I bring no good-will to myself amongst the
wisest of that nation. Certes it is a lamentable case to see furthermore
how a number of poor men are daily abused and utterly undone by sundry
varlets that go about the country as promoters or brokers between the
pettifoggers of the law and the common people, only to kindle and espy
coals of contention, whereby the one side may reap commodity and the other
spend and be put to travel. But, of all that ever I knew in Essex, Denis
and Mainford excelled, till John of Ludlow, _alias_ Mason, came in place,
unto whom in comparison they two were but children: for this last in less
than three or four years did bring one man (among many elsewhere in other
places) almost to extreme misery (if beggary be the uttermost) that before
he had the shaving of his beard was valued at two hundred pounds (I speak
with the least), and finally, feeling that he had not sufficient wherewith
to sustain himself and his family, and also to satisfy that greedy
ravenour which still called upon him for new fees, he went to bed, and
within four days made an end of his woeful life, even with care and
pensiveness. After his death also he so handled his son that there was
never sheep shorn in May so near clipped of his fleece present as he was
of many to come: so that he was compelled to let away his land, because
his cattle and stock were consumed and he no longer able to occupy the
ground. But hereof let this suffice, and, instead of these enormities, a
table shall follow of the terms containing their beginnings and endings,
as I have borrowed them from my friend John Stow, whose study is the only
storehouse of antiquities in my time, and he worthy therefore to be had in
reputation and honour.
A man would imagine that the time of the execution of our laws, being
little above one quarter or not fully a third part of the year, and the
appointment of the same to be holden in one place only, to wit, near
London in Westminster, and finally the great expenses employed upon the
same, should be no small cause of the stay and hindrance of the
administration of justice in this land: but, as it falleth out, they prove
great occasions and the stay of much contention. The reasons of these are
soon to be conceived; for as the broken sleeve doth hold the elbow back,
and pain of travel cause many to sit at home in quiet, so the shortness of
time and fear of delay doth drive those oftentimes to like of peace who
otherwise would live at strife and quickly be at odds. Some men desirous
of gains would have the terms yet made shorter, that more delay might
engender longer suit; other would have the houses made larger and more
offices erected wherein to minister the laws. But as the times of the
terms are rather too short than too long by one return apiece, so, if
there were smaller rooms and fouler ways unto them, they would enforce
many to make pause before they did rashly enter into plea. But, sith my
purpose is not to make an ample discourse of these things, it shall
suffice to deliver the times of the holding of our terms, which ensueth
after this manner:--
_A Perfect Rule to know the Beginning and Ending of every Term, with their
Returns._
Hilary term beginneth the three-and-twentieth day of January (if it be not
Sunday); otherwise the next day after, and is finished the twelfth of
February; it hath four returns,
Octabis Hilarij. Crastino Purific.
Quind. Hilarij. Octabis Purific.
Easter term beginneth seventeen days after Easter, endeth four days after
the Ascension Day, and hath five returns,
Quind. Pasch. Mense. Quinque Paschae.
Tres Paschae. Pasch. Crast. Ascension.
Trinity term beginneth the Friday after Trinity Sunday, and endeth the
Wednesday fortnight after, in which time it hath four returns,
Crast. Trinitatis. Quind. Trinitatis.
Octabis Trinitatis. Tres Trinitatis.
Michaelmas term beginneth the ninth of October (if it be not Sunday), and
ending the eight-and-twentieth of November; it hath eight returns,
Octabis Michael. Crast. Anima.
Quind. Michael. Crast. Martini.
Tres Michael. Octa. Martini.
Mense Michael. Quind. Martini.
Note also that the Exchequer, which is _Fiscus_ or _ærarium publicam
princeps_, openeth eight days before any term begin, except Trinity term,
which openeth but four days before.