CHAPTER V.

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.

Elizabethan England From 'A Description of England,' by William Harrison · 第 5 / 26 章