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3.9. Of the lawes of England since hir first inhabitation. Chap. 9.

Of the lawes of England since hir first inhabitation. Chap. 9.

Compare 1577 edition: 1 _THat Samothes Samothes. or Dis gaue the first lawes to the Celtes (whose kingdome he erected about the fiftéenth of Nim|brote) the testimonie of Bero|sus 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 po|litike inuention than he, whereof he was named Samothes, as some other do affirme. What his lawes were, it is now altogither vnknowne,Albion. as most things of this age; but that they were altered againe at the comming 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.

Compare 1577 edition: 1 The like also may be affirmed of our Brute,Brute. not|withstanding that the certeine knowledge so well of the one as of the other is perished, and nothing wor|thie memorie left of all their dooings. Somewhat yet we haue of Mulmutius, 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.

Compare 1577 edition: 1 EEBO page image 177 Certes, there was neuer prince in Britaine, of whome his subiects conceiued better hope in the be|ginning, 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 the first, than those of Dunwal|lonThe praise 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 fune|rals. And this onelie for his policie in gouernance, seuere administration of iustice, and prouident fra|ming of his lawes and constitutions, for the gouern|ment 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. After|ward 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 Le|land saith, and the decrêes themselues had vtterlie perished in déed at the verie first brunt, had they not beene preserued in Wales, where they remained a|mongst there likes of the Britons, & not onlie vntill the comming of the Normans, but euen vntill the time of Edward the first, who obteining the soue|reigntie of that portion, indeuoured verie earnestlie to extinguish those of Mulmutius, and to establish his owne.

Compare 1577 edition: 1 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 be|gan 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 an|other treatise I haue made mention at large. Héer|of also it came to passe in the end, that they were contented to make a choise, and insert no small num|bers 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 Mulmu|tius (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.

Compare 1577 edition: 1 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 cau|sed them to be turned into the Saxon toong, wherein they continued long after his decease.

Compare 1577 edition: 1 As for the Normans, who for a season neither re|garded 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 or|dinances, 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 commen|ded 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 in|tollerable burden of seruitude which they had latelie laid vpon the shoulders of the English, but also left vs a greeat 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 dis|tinguish them from others, that are in strength a|mongst vs.

Compare 1577 edition: 1 After Dunwallon, the next lawgiuer was Mar|tia, Martia. whome Leland surnameth Proba; and after him John Bale also, who in his Centuries dooth iustlie con|fesse himselfe to haue béene holpen by the said Le|land, as I my selfe doo likewise for manie things conteined in this treatise. Shée was wife vnto Gut|teline king of the Britons: and being made protec|trix 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 com|mend also for hir great knowledge in the Gréeke toong) to be turned into his owne language, where|vpon 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.

Compare 1577 edition: 1 The seuenth alteration of lawes was practised by the Saxons, for I ouerpasse the vse of the ciuill ordi|nances vsed in Rome, finallie brought hither by the Romans, & yet in perfect notice among the Ciuili|ans of our countrie, though neuer generallie nor ful|lie 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 the MartianMartian law. and the Saxon law.Saxon law. Beside these also I read of the Dane law,Dane law. so that the people of middle England were ruled by the first, the west Saxons by the second; as Essex, Norffolke, Suf|folke, 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 au|thoritie, 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 as|semble in for the making of their ordinances, as we haue now at Westminster. Wherefore Edmund gaue lawes at London & Lincolne, Ethelred at Ha|bam, Alfred at Woodstock and Wannetting, Athel|stane in Excester, Grecklade, Feuersham, & Thun|dersleie, Canutus at Winchester, &c: other in o|ther places, whereof this may suffice.

Compare 1577 edition: 1 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 EEBO page image 178 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 pub|lished 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?

Compare 1577 edition: 1 The Ordalian (saith the aforesaid author) was a certeine maner of purgation vsed two waies,Ordalian law. Fire. wher|of the one was by fire, the other by water. In the ex|ecution of that which was doone by fire, the partie ac|cused 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 giltlesse, 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.

Compare 1577 edition: 1 There were in like sort two kinds of triall by the water,Water. that is to say, either by hot or cold: and in this triall the partie thought culpable, was either tum|bled into some pond or huge vessell of cold water, wherein if he continued for a season, without wrest|ling 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 im|mediatlie 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 da|mage, he was discharged of further molestation: o|therwise he was taken for a trespasser, and punished accordinglie. The fierie maner of purgation belon|ged 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 re|streined) did extinguish it altogither as flat lewd|nesse and bouerie. The Rubrike of the treatise en|tereth 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 vesti|ment, 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 De|us locum istum, vt sit nobis in eo sanitas, sanctitas, castitas, virtus, & victoria, & sanctimonia, humilitas, bonitas, leni|tas, & plenitudo legis, & obedientia Deo patri, & filio, & spiritui sancto. Haec 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, cha|stitie, vertue, and victorie, purenesse, humilitie, good|nesse, gentlenesse, and fulnesse of the law, and obedi|ence 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 om|nem hominem venientem in hunc mundum (vel mundum) vt ab eo lumine accendamur igne claritatis tuae. Et sicut igne illuminasti Mosen, ita nunc illumina corda nostra, & sen|sus nostros, vt ad vitam aeternam mereamur peruenire, per Christum, &c. Lord God father almightie, light euer|lasting, 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 Pa|ter noster, &c: then these words: Saluum fac seruum, &c. Mitte ei auxilium Deus, &c. De Sion tuere eum, &c. Do|minus 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.

Compare 1577 edition: 1 The praier. Benedic Domine sancte pater, omnipotens Deus, per inuocationem sanctissimi nominis tui, & per aduen|tum filij tui, atque per donum spiritus paracleti, ad manifestan|dum verum iudicium tuum, hoc genus metalli, vt sit sanctifi|catum, & omni daemonum falsitate procul remota, veritas veri iudicij tui fidelibus tuis manifesta fiat, per eundem Do|minum, &c. In English: Blesse we beséech thee O Lord, holie father, euerlasting God, through the in|uocation of thy most holie name, by the comming of thy sonne, and gift of the holie ghost, and to the mani|festation of thy true iudgement, this kind of met|tall, that being hallowed, and all fradulent practi|ses of the diuels vtterlie remoued, the manifest truth of thy true iudgement may be reuealed, by the same Lord Iesus, &c.

Compare 1577 edition: 1 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 com|municate according to the maner.

3.9.1. The office of the masse.

The office of the masse.

Compare 1577 edition: 1 Iustus es Domine, &c. O Lord thou art iust, &c.

3.9.2. The Praier.

The Praier.

Compare 1577 edition: 1 ABsolue quaesumus Domine delicta famuli tui, vt à pec|catorum suorum nexibus, quae pro sua fragilitate con|traxit, tua benignitate liberetur, & in hoc iudicio quoad meruit, iustitia tua praeueniente, ad veritatis censuram per|uenire 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 clea|red 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.

3.9.3. The Gospell. Mar. 10.

The Gospell. Mar. 10.

Compare 1577 edition: 1 2 IN illo tempore, cùm egressus esset Iesus in via, procurrens quidam genuflexo ante eum, rogabat eum dicens, Magister EEBO page image 179 bone, quid faciam vt vitam aeternam percipiam? Iesus autem dixit ei, Quid me dicis bonum? &c. In those daies when Iesus went foorth toward his iourneie, and one mée|ting 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, & fi|lium, & spiritum sanctum, & per veram christianitatem quam suscepisti, & per sanctas relliquias quae in ista ecclesia sunt, & per baptismum quo te sacerdos regenerauit, vt non praesumas vllo modo communicare, ne 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 accnsed, &c. Here let the priest suffer him to communicate, saieng; Corpus hoc, & san|guis Domini nostri Iesu Christi, sit tibi ad probationem hodie. This bodie & this bloud of our Lord Iesus Christ,The cup yet in vse. 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 re|ceiued O Lord God these holie mysteries, we hum|blie beséech thée that the participation of this sacra|ment may rid vs of our guiltinesse, and in this thy seruant set foorth the truth. Then shall follow Kyrie|leson, 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 Chal|daeorum quibusdam pereuntibus eruisti, Deus qui rubum ardere ante conspectum Mosis & minimè comburi permisisti, Deus qui de incendio fornacis Chaldaicis plerísque succensis, tres pu|eros tuos illaesos eduxisti, Deus qui incendio ignis populum So|domae inuoluens, Loth famulum tuum cum suis salute donasti, Deus qui in aduentu sancti spiritus tui, illustratione ignis fi|deles tuos ab infidelibus decreuisti: ostende nobis in hoc praui|tatis nostrae examine virtutem eiusdem spiritus, &c: & per ignis huius feruorem discernere infideles, vt à tactu eìus cuius inquisitio agitur, conscius ex orrescat, & manus eius combura|tur, innocens verò poenitus illaesus permaneat, &c. Deus cuius noticiam nulla vnquam secreta effugiunt, fidei nostrae tua bo|nitate responde, & praesta 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 Abra|ham 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, did|dest 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 touch|ing thereof, may tremble and feare, and his hand be burned, or being innocent, that he may remaine in safetie, &c. O God from whom 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 reuea|led as an offendor, &c. After this the priest shall sprinkle the iron with holie water, saieng: The bles|sing of God the father, the sonne, and the holie ghost, be vpon this iron, to the reuelation of the iust iudge|ment 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 thus much of the firie Ordalia, Water. where|vnto 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.

Compare 1577 edition: 1 Hitherto also (as I thinke) sufficientlie of such lawes as were in vse before the conquest. Now it re|steth 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.

Compare 1577 edition: 1 We haue therefore in England sundrie lawes,Ciuill law. and first of all the ciuill, vsed in the chancerie, adme|raltie, and diuerse other courts, in some of which, the seuere rigor of iustice is often so mitigated by con|science, that diuerse things are thereby made easie and tollerable, which otherwise would appeare to be méere iniurie and extremitie.

Compare 1577 edition: 1 We haue also a great part of the Canon law dai|lie practised among vs,Canon law. especiallie in cases of tithes, contracts of matrimonie, and such like, as are vsu|allie to be séene in the consistories of our bishops and higher courts of the two archbishops, where the exer|cise of the same is verie hotlie followed. The third sort of lawes that we haue are our owne, & those al|waies so variable, & subiect to alteration and change, that oft in one age, diuerse iudgements doo passe vp|on one maner of case, whereby the saieng of the poet,

Tempora mutantur, & nos mutamur in illis,
may verie well be applied vnto such, as being vrged with these words;Lawiers of England not alwaies con|stant in iudg|ment. In such a yeare of the prince, this o|pinion 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 regi|ment that we haue therefore after our owne ordi|nances, dependeth vpon thrée lawes, to wit, Sta|tute law, Common law, Customarie law, and Pre|scription, according to the triple maner of our tri|als 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.

Compare 1577 edition: 1 2 The first is deliuered vnto vs by parlement, which court,Parlement law. being for the most part holden at Westmin|ster néere London, is the highest of all other, & consi|steth 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 oc|casion when the prince dooth see his time, and that by seuerall writs, dated commonlie full six wéekes be|fore 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 re|quire 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 EEBO page image 180 by the prince, who commonlie resorteth thither of cu|stome, 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 con|firmation to the same. The king hauing heard the summe and principall points of each estatute brief|lie 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 com|mons assembled in the lower house, beside the clear|gie, consisteth of ninetie knights. For each shire of England hath two gentlemen or knights of grea|test wisedome and reputation,Number of congregates in the parle|ment. chosen out of the bo|die 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 citi|zens, 289 burgesses, and fourtéene barons, so that the whole assemblie of the laitie of the lower house, con|sisteth 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 large|lie and beneficiallie after their intendment and mea|ning.

Compare 1577 edition: 1 The Common law standeth vpon sundrie maxi|mes or principles,Common law. 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 cau|ses 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, surre but to issue and triall if occasion so fall out, the one side af|firmatiuelie, the other negatiuelie as common ex|perience teacheth. Our trials and recoueries are ei|ther 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.

Compare 1577 edition: 1 Customarie law consisteth of certeine laudable customes vsed in some priuat countrie,Customarie law. 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 Caesar in his cõmentaries, 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 in|heritance 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 a|mongst themselues, that they were not able to main|teine 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 disper|sed amongst their issue males, of one strong there were raised sundrie weake, whereby the originall or generall strength to resist the aduersarie, became in|feebled 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 main|teine his priuate estate, and few take care to pro|uide for publike welfare.

Compare 1577 edition: 1 Burrow kind, is where the yoongest is preferred be|fore the eldest, which is the custome of manie coun|tries 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 some|times frequented generallie ouer all.

Compare 1577 edition: 1 Prescription is a certeine custome,Prescription. which hath con|tinued 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 lar|ger 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?

Compare 1577 edition: 1 There are also sundrie vsuall courts holden once in euerie quarter of the yeare, which we commonlie call termes,Terme. 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 al|so they are kept both for spirituall and temporall dea|ling, 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 war rich apace, and will be richer if their clients become not the more wi|ser & 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 an|other 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 Lon|don vnder ten pounds or twentie nobles at the lest. And one being demanded why he made so much of EEBO page image 181 his trauell, answered, that it was but follie for him to go so farre, when he was assured to get more mo|nie by sitting still at home. A friend of mine also had a sute of late of some valure, and to be sure of coun|sell 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 vpon.Deceipt. 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, in|creased 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 decei|ued 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,Manie of our lawiers stoope not at small fées. then standing vpon the hazard. But inough of these matters, for if I should set downe how lit|tle 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 suf|fice 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.

Compare 1577 edition: 1 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 those parts, yet will the poorest (of all men commonlie most contentious)Poore men contentious. refuse to haue his cause heard so néere home, but indeuoureth rather to his vtter vn|dooing to trauell vp to London, thinking there soo|nest 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 Da|uid of them giuen so much to contention and strife, that without all respect of charges he will vp to Lon|don, though he go bare legged by the waie, and carie his hosen on his necke (to saue their feet from wea|ring) 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 quarrell be scarselie worth the see 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 lamentable case to sée furthermore,Promooters séeke matters to set lawiers on worke withall. how a number of poore men are dailie abused and vtterlie vndoone, by sundrie varlets that go about the coun|trie, 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 suf|ficient 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 compel|led 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 contei|ning their beginnings and endings, as I haue bor|rowed 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.

A man would imagine that the time of the exe|cution of our lawes,The times of our termes no hinderance to iustice. being little aboue one quarter, or not fullie a third part of the yeare, and the appoint|ment 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 con|ceiued, 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.

3.9.4. A perfect rule to know the begin|ning and ending of euerie terme, with their returnes.

A perfect rule to know the begin|ning and ending of euerie terme, with their returnes.

Compare 1577 edition: 1 HIlarie terme beginneth the three and twentieth daie of Ianuarie (if it be not sundaie) otherwise the next daie after, and is finished the twelfe of Fe|bruarie, it hath foure returnes.

    Compare 1577 edition: 1
  • Octabis Hilarij.
  • Quind. Hilarij.
  • Crastino Purific.
  • Octabis Purific.

Compare 1577 edition: 1 ¶Easter terme beginneth seuentéene daies after Easter, endeth foure daies after the Ascension daie, and hath fiue returnes.

    Compare 1577 edition: 1
  • Quind. Pasch.
  • Tres Paschae.
  • Mense
  • Paschae.
  • Quinque Paschae.
  • Crast. Ascention.

Compare 1577 edition: 1 ¶Trinitie terme beginneth the fridaie after Trinitie sundaie, and endeth the wednesdaie fort|night after, in which time it hath foure returnes.

    Compare 1577 edition: 1
  • Crast. Trinitatis.
  • Octabis Trinitatis.
  • Quind. Trinitatis.
  • Tres Trinitatis.

Compare 1577 edition: 1 ¶Michaelmasse terme beginneth the ninth of Oc|tober (if it be not sundaie) and ending the eight and EEBO page image 182 twentith of Nouember, it hath eight returnes.

    Compare 1577 edition: 1
  • Octabis Michael.
  • Quind. Michael.
  • Tres Michael.
  • Mense Michael.
  • Crast. anima.
  • Crast. Martini.
  • Octa. Martini.
  • Quind. Martini.

Compare 1577 edition: 1 Note also that the escheker, which is Fiscus or aera|rum 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 accu|stomablie 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 exa|mined) to the end each one at home being called vp to answer may trulie know the time of his appea|rance; 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 in|fected lawiers will not let them go awaie so easilie, pretending facilitie and custome of vsage, but mea|ning peraduenture inwardlie to kéepe a commemo|ration of those dead men whose names are there re|membred.

Michaelmas terme.

    Compare 1577 edition: 1
  • S. Faith.
  • S. Edward.
  • S. Luke.
  • Simon & Iu.
  • All Soules.
  • S. Martin.
  • Edmund.
  • Katharine.
  • S. Andrew.
  • Conception of the virgin
  • Marie.

Compare 1577 edition: 1 ¶It is to be remembred that the first daie follow|ing 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 cau|ses kept in Southwarke, where iustice is ministred & execution doone continuallie according to the same.

Compare 1577 edition: 1 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.

Compare 1577 edition: 1 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 dele|gates, and the court of the Quéenes highnesse com|missioners vpon appeales is likewise kept in the same place on the fourth daie.

Hilarie terme.

    Compare 1577 edition: 1
  • S. Hilarie.
  • S. Wolstan.
  • Conuersion of S. Paule.
  • S. Blase.
  • S. Scolastic.
  • S. Valentine
  • Ashwednes.
  • S. Matthie.
  • S. Chad.
  • Pepet. & Fel.
  • S. Gregorie.
  • Annũciation
  • of our Ladie.

Compare 1577 edition: 1 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 some|time omitted. For if it so happen that one of those feasts fall on wednesdaie, commonlie called Ash|wednesdaie 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 Ashwednes|daie 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 con|uenientlie. And marke that although Ashwednes|daie be put the seuenth in order, yet it hath no cer|teine place, but is changed as the course of Easter causeth it.

Easter terme. The fiftéenth daie after Easter.

    Compare 1577 edition: 1
  • S. Alphege.
  • S. Marke.
  • Inuention of the crosse.
  • Gordian.
  • S. Dunstan.
  • Ascension daie.

Compare 1577 edition: 1 ¶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.

Compare 1577 edition: 1 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 i [...] anie of those daies come before the fiftéenth of Ea|ster, those daies are omitted also.

Trinitie terme.

    Compare 1577 edition: 1
  • Trinitie sundaie.
  • Corpus Christi.
  • Boniface bish.
  • S. Barnabie.
  • S. Butolph.
  • S. Iohn.
  • S. Paule.
  • Translat. Thomas.
  • S. Swithune.
  • S. Margaret.
  • S. Anne.

Compare 1577 edition: 1 Here note also that the lawdaies of this terme are altered by meane of Whitsuntide, and the first sit|ting 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 papi|sticall feast daie called Corpus Christi, except Cor|pus 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.

Compare 1577 edition: 1 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 fol|lowing be sundaie, then the court daie is kept the daie after the said holie daie or feast.

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