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IF the enquest of xij men do séeme to the Iudges & the Iustices to haue gon too violently against the euidence giuen in mat∣ters criminall, either it is that vpon slender eui∣dence they haue pro∣nounced him giltie, whō the Iudges & most part
of the Iustices thinkes by the euidence not fullie proo∣ued guiltie, or for some other cause, do thinke the per∣son rather worthie to liue than to die. The enquest is neuerthelesse dimissed: but when the Iudges should pronounce the sentence of death vpon the person found guiltie, he will differ it, which is called to repriue the prisoner (that is to say to sende him againe to prison) and so declare the matter to the Prince, and obtaineth after a time for the prisoner his pardon: and as for pro∣uocation or appeale which is vsed so much in other countries, it hath no place in England, after sentence giuen by the xii, whereby the person is founde guiltie or not guiltie: but without that repriuing the sen∣tence is streight put in execution by the sherife. And if they either escape or die an other death, the sherife es∣capeth not to paie a great fine and ransom at the Prin∣ces mercie: if hauing pregnant euidence neuerthelesse the xii doe acquite the malefactor, which they will doe sometime, and especially if they perceiue either one of the Iustices, or of the Iudges, or some other man to pursue too much and too malitiously the death of the pri∣soner, and doe suspect some subornation of the witnesse, or them which doe giue euidence, and sometime if they perceiue the Iudge would haue the prisoner escape, and in repeating the euidence doe giue them thereof some watchworde. But if they doe as I haue saide, pro∣nounce not guiltie vpon the prisoner against whome manifest witnesse is brought in, the prisoner escapeth: but the xii not onely be rebuked by the Iudges, but al∣so threatned of punishment, and many times com∣maunded to appeare in the starrechamber, or before the priuie counsell for the matter. But this threatning chaunceth oftener than the execution thereof, and the xii answere with most gentle wordes, they did it accor∣ding to their consciences, and pray the Iudges to be good vnto them, they did as they thought right, and as
they accorded all, and so it passeth away for the most part. Yet I haue séene in my time (but not in the raigne of the Quéene nowe) that an enquest for pro∣nouncing one not guiltie of treason contrarie to such euidence as was brought in, were not onely impriso∣ned for a space, but an houge fine set vpon their heads, which they were faine to pay: An other enquest for ac∣quiting an other, beside paying a fine of money, put to open ignominie and shame. But those doinges were euen then of many accounted verie violent, tyranni∣call, and contrarie to the libertie and custome of the realme of England. Wherefore it commeth verie sel∣dome in vse, yet so much at a time the enquest may be corrupted, that the Prince may haue cause with iu∣stice to punish them: For they are men, and subiect to corruption and parcialitie, as others be.
IN causes ciuil there is another order: for if after the matter be pleaded to the issue, and the xij men there∣upon impaneled, the euidence brought and pleaded before them on both the parties, the xij séeme to be parciall, and to haue giuen sentence contrarie to the euidence shewed vnto them: the partie gréeued may bring against them, and the partie for whome the sen∣tence is giuen, a writ of attaint: and where as before vpon the first quest commonly they all be yeomen, now vppon this attaint must go xxiiij gentlemen dwelling within the shire, and xij at the least of the hundreth where the lande lyeth. The matter is pleaded againe before the same Iudges. The partie defendant is not onely nowe he, who claimeth the lande, but also all
and euery of the yeomen, who by their verdict did giue it him. There must in the attaint no more euidence be brought in, but onely that which was brought in, and alledged before the first enquest. And if this se∣conde enquest of xxiiij gentlemen do adiudge as the first did, the plaintife shall not onely lose the land, but also paie a fine to the Prince and damages to the par∣tie. If this seconde enquest do finde that the first en∣quest hath gone parcially, and against the euidence brought in before them, the first enquest is called at∣tainted, and accounted as periured and infamed. The Prince had before the waste of all their lands and pos∣sessions with other punishments, which at this present by a lawe made by parliament in the time of king Henrie the eight is abolished, and nowe by that law or act of parliament, beside other punishment, eche of the quest attainted payeth vnto the Prince and partie v. li. if it be vnder fourtie poundes: and if aboue, then xx. li. Attaints be verie seldome put in vse, partly because the gentlemen will not méete to slaunder and deface the honest yeomen their neighbours: so that of a long time, they had rather paie a mean fine than to appeare and make the enquest. And in the meane time they will intreat so much as in them lyeth the parties to come to some composition and agréement among them selues, as lightly they do, except either the corruption of the enquest be too euident, or the one partie is too ob∣stinate and headstrong. And if the gentlemen do ap∣peare, gladlyer they will confirme the first sentence, for the causes which I haue saide, than go against it. But if the corruption be too much euident, they will not sticke to attaint the first enquest: yet after the gentle∣men haue attainted the yeomen, if before the sentence be giuen by the Iudge (which ordinarily for a time is differred) the parties be agréed, or one of them be dead, the attaint ceaseth.
If at anie time before the sentence be giuen or put in execution, there be found some such errour in the writ, in the proces, or forme (as our lawyers be verie precise and curious of their formes) that it may be re∣uocable, it is brought afresh to the disputation by a writ of errour, and all that is doone reuersed. But that is common to all other countries, where the ciuill law is vsed, which they call de nullitate processus, and serueth both in Englande and in other places aswell in causes criminall, as ciuill. Other kinde of appellation to re∣uoke processes, and to make them of short, long, of long, infinite, which is vsed by the ciuill lawe, we haue not in our common lawe of Englande. By supplicati∣on to the Prince and complaint to the Chauncellor vp∣on supposall of losse or lacke of euidence, or too much fa∣uour in the countrey, and power of the aduersarie, there is in our countrey as well as theirs both stop∣ping and prolongation of Iustice. For what will not busie heades and louers of trouble neuer being satisfied inuent in any countrey to haue their desire, which is to vex their neighbours, and to liue alwaies in disqui∣et? Men euen permitted of God like flies, and lise, and other vermine to disquiet them, who would imploie themselues vpon better businesse and more necessarie for the common wealth: these men are hated, and feared of their neighbours, loued and aided of them which gaine by proces, and waxe fatte by the expence & trouble of other. But as these men ordinarily spende their owne thrift, and make others against their wils to spende theirs: so sometime being throughly knowen, they do not onely liue by the losse like euill husbandes, but beside rebuke & shame, by the equitie of the Prince and courtes soueraigne, they come to be extraordina∣rily punished, both corporally, & by their purse, which thing in my minde is as royall and princely an act, and so beneficiall to the commonwealth, as in so small a
matter a King or a Quéene can doe, for the repose and good education of their subiectes.
IF any man hath killed my father, my sonne, my wife, my brother, or next kinsman, I haue choice to cause him to be endicted, by giuing information to the enquest of enquirie, (although he chaunce to escape the Constable or Iustices handes, and therefore not to be apprehended) and thereupon to procure him to be out∣lawed, or else within a yéere and a day I may enter my appeale, that is mine accusation against him. If I begun first to pursue him by information or denuncia∣tion to enditement, I am nowe no partie but the Prince, who for his duetie to God and his common wealth and subiects, must sée iustice executed against all malefactors & offenders against the peace, which is called Gods and his, & doeth in such maner as I haue saide before. If I leaue that and will appeale, which is profer my accusation against him who hath doone to me this iniurie, the defendant hath this aduauntage to put himselfe to the Iurie, which is to that which be∣fore is saide to haue that issue and triall by God and his countrie, whereof the fashion I haue at large declared: or to demaund the triall by battle, wherein both the parties must eyther themselues in person, or else finde other for them, who be called in our Law Champions or Campions, some doeth interprete them 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 be∣cause they be men chosen, fat, lustie, fit to the feate, or as the Frenche doe terme them adroicts aux armes, which shall fight it out by 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, or as now they doe call it duellum, or the campe, which shall haue all things equall: but according as Mars giueth the victo∣rie,
so the Lawe is iudged the one as peractus reus, the other is calumniator to suffer the paine of death. So that by the great assise there is no appellation but death or life to the defendant, but this is more daun∣gerous and equall, for the one or the other must die. So it is not in the grande assise, for the reus or defen∣daunt is onely in daunger of death. Short it is from day to sunne set, the quarell is ended, or sooner who hath the better fortune. This seemeth very militarie (as in maner all our policie of Englande) and to haue as small to doe with Lawyers as with Phisitions, quicklie to dispatche, and for the rest to returne, eche man to his buisinesse, to serue the common wealth in his vocation. The Popes of Rome, and men of the Church who of long time haue had dominion in our consciences, and would bring things to a more mode∣ration, haue much detected this kinde of triall and iudgement, as reason is euerie man misliketh that which is not like to his education, and colde reasoning by Theologie and Philosophie: they I say much mis∣like many things doone necessarily in whot policie. At the least a common wealth militarie must aduen∣ture many things to kéepe it in quiet, which cannot séeme to precisely good to them which dispute thereof in the shadowe and in their studies: Howsoeuer it be, this kinde of triall of long time hath not béene vsed. So that at this time we may rather séeke the experience of it out of our histories of time passed, than of any viewe or sight thereof, of them which are nowe aliue. Ne∣verthelesse the Lawe remaineth still, and is not aboli∣shed, and if it shall chaunce the murtherer or mansleer (the one we call him that lyeth in waite, and as they terme it in Frenche de guet appendaunt killeth the man, the other who by casuall falling out and so∣daine debate and choller doeth the same which way so∣euer it be doone) if he that hath slaine the man, hath
his pardon of the prince, as occasion or the fauour of the Prince may so present, y• he may haue it, yet the partie grieued hath these two remedies, I say to require iu∣stice by grand assise, or battle vpon his appeale & pri∣uate reuenge, which is not denyed him. And if the de∣fendant either by great assise or by battle be conuinced vpon that appeale, he shall die, notwithstanding the Princes pardon. So much fauourable our Princes be, and the lawe of our Realme to iustice and to the punishment of blood violently shed.
THere is yet in Englande an other court, of the which that I can vnderstand there is not the like in any other Countrie. In the Terme time (the Terme time as I haue heretofore shewed, I call the time and those daies when the Lawe is exercised in Westmin∣ster hall, which as I haue said is but at certaine times and termes) every wéeke once at the least, which is commonly on Fridaies, and Wednesdaies, and the next day after that the terme doeth ende, the Lorde Chauncellor, and the Lordes and other of the priuie Counsell, so many as will, and other Lordes and Ba∣rons which be not of the priuie Counsell, and be in the towne, and the Iudges of England, specially the two chiefe Iudges, from ix. of the clocke till it be xj. doe sit in a place which is called the starre chamber, either be∣cause it is full of windowes, or because at the first all the roofe thereof was decked with images of starres gilted. There is plaints heard of riots. Riot is cal∣led in our English terme or speache, where any num∣ber is assembled with force to doe any thing: and it had the beginning, because that our being much accu∣stomed
either in foreine wars, in Fraunce, Scotland, or Ireland, or being ouermuch exercised with ci∣uill warres within the Realme (which is the fault that falleth ordinarily amongest bellicous nations) whereby men of warre, Captaines and souldiers be∣come plentifull▪ which when they haue no externe ser∣uice wherewith to occupie their buisie heads & handes accustomed to fight and quarell, must néedes séeke qua∣rels and contentions amongest themselues, and be∣come so readie to oppresse right among their neigh∣bours, as they were woont before with praise of man∣hoode, to be in resisting iniurie offered by their ene∣mies. So that our nation vsed hereunto, & vpon that more insolent at home, and not easie to be gouerned by Lawe and politike order, men of power beginning ma∣ny fraies, and the stronger by factions and parties of∣fering too much iuiurie to the weaker, were occasions of making good Lawes. First of reteiners, that no man should haue aboue a number in his Liuerie or re∣tinue: then of the enquirie of routs and riots at euerie Sessions, and of the lawe whereby it is prouided that if any by force or by riot enter vpon any possessions, the Iustices of the peace shal assemble themselues & re∣mooue the force, & within certain time enquire thereof. And further, because such things are not commonlie done by meane men, but by such as be of power & force, & be not to be dealt withal of euerie man, nor of meane Gentlemen: if the riot be found & certified to the Kings Counsell, or if otherwise it be complained of, the partie is sent for, and he must appeare in this starre chamber, where séeing (except the presence of the Prince onely) as it were the maiestie of the whole Realme before him, being neuer so stoute, he will be abashed: and being called to aunswere (as he must come of what degrée soeuer he be) he shall be so charged with such grauitie, with such reason & remonstrance,
and of those chiefe personages of Englande, one after an other handeling him on that sort, that what cou∣rage soever he hath, his heart will fall to the grounde, and so much the more, when if he make not his aun∣swere the better, as seldome he can in so open violence, he shalbe commaunded to the Fléete, where he shall be kept in prison in such sort as these Iudges shall ap∣point him, lie there till he be wearie aswell of the re∣straint of his libertie, as of the great expences, which he must there sustaine, and for a time be forgotten, whiles after long suite of his friendes, he will be glad to be ordered by reason. Sometime as his deserts be, he payeth a great fine to the Prince, besides great costs and dammages to the partie, and yet the mat∣ter wherefore he attempteth this riot and violence is remitted to the common lawe. For that is the effect of this Court to bridle such stoute noble men, or Gen∣tlemen which would offer wrong by force to any man∣ner men, and cannot be content to demaund or defend the right by order of lawe. This court began long before, but tooke great augmentation and authoritie at that time that Cardinall Wolsey Archebishop of Yorke was Chauncellor of Englande, who of some was thought to haue first deuised y• Court, because that he after some intermission by negligence of time, aug∣mented the authoritie of it, which was at that time maruellous necessary to doe, to represse the insolencie of the noble men and gentlemen of the North partes of Englande, who being farre from the King and the seate of iustice made almost as it were an ordinarie warre among themselues, and made their force their Lawe, banding themselues with their tenaunts and seruauts to doe or reuenge iniurie one against an o∣ther as they listed. This thing séemed not supportable to the noble prince King Henrie the eight: and sending for them one after an other to his Court to aunswere
before the persons before named, after they had had remonstrance shewed them of their euill demeanor, and béene well disciplined as well by words as by flée∣ting a while, and thereby their purse and courage somwhat asswaged, they began to range themselues in order, and to vnderstand that they had a Prince who would rule his subiects by his lawes and obedience. Sith that time this court hath béene in more estimati∣on, and is continued to this day in manner as I haue saide before.
HE whom we call a ward in Englande, is called in Latine pupillus, and in Gréeke 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. The gardian is called in Latine tutor, in Gréeke 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. A warde or infant is taken for a childe in base age, whose father is dead. The Romanes made two distinctions pupillum & minorem, the one to xiiii, yere old, the other was accoun∣ted from thence to xxv. And as pupillus had tutorem, so minor had curatorem til he came to the age of xxv. These tutors or curators were accountable for the reuenues of the pupils minors lands, & great prouision and many lawes and orders is made for them in the bookes of the ciuil Lawe, for rendering iust & true accounts. So that to be a gardian or tutor was accounted among them to be a charge or trouble, a thing subiect to much en∣cumbraunce and small profite, so that diuerse meanes were sought for, to excuse men from it. With vs this is cleane contrarie, for it is reckoned a profite to haue a warde. For the Lorde of whom the warde doeth hold the land, so soone as by the death of the father the childe falleth warde vnto him, he seaseth vpon the body of the ward and his landes, of which (so that he doeth nourish the ward,) he taketh the profite without ac∣counts,
and beside that offering to his ward couena∣ble mariage without dispergement before the age of xxl. yeres if it be a man, or xiiii. if it be a woman. If the ward refuse to take that mariage, he or she must pay the value of the mariage, which is commonly ra∣ted according to the profite of his landes. All this while I speake of that which is called in French garde noble, that is of such as holde lands of other, by knight seruice, for that is an other kinde of seruice which we call in Frenche gard returier, we call it gard in socage, that is of such as doe not holde by knight seruice, but by tenure of the plough. This wardship falleth to him who is next of the kinne, and cannot inherite the land of the warde as the vncle by the mothers side, if the land doe discend by the father and of the fathers side, if the lande discend by the mother. This gardian is ac∣countable for the reuenues and profites of the land, as the tutor by the ciuill Lawe to the warde or pupill so soone as he is of full age.
The man is not out of wardshippe by our lawe till xxj. yere olde, from thence he is reckoned of full age, as∣well as in the Romane lawes at xxv. The woman at xiiij. is out of warde, for shée may haue an husband a∣ble to doe knightes seruice say our bookes. And be∣cause our wiues be in the power (as I shall tell you hereafter) of their husbands, it is no reason, she should be in two diuerse gards.
Many men doe estéeme this wardship by knightes seruice very vnreasonable and vniust, and contrarie to nature, that a Fréeman and Gentleman should be bought and solde like an horse or an oxe, and so change gardians as masters and lordes: at whose gouerne∣ment not onely his bodie but his landes and his houses should be, to be wasted and spent without accounts, and then to marie at the will of him, who is his natu∣rall Lorde, or his will who hath bought him, to such as
he like not peraduenture, or else to pay so great a ran∣som. This is the occasion they say, why many gen∣tlemen be so euil brought vp touching vertue and lear∣ning, and but onely in deintinesse and pleasure: and why they be maried very young and before they bee wife, and many times do not greatly loue their wiues. For when the father is dead, who hath the natural care of his childe, not the mother, nor the vnckle, nor the next of kinne, who by all reason would haue most na∣turall care to the bringing vp of the infant and minor, but the Lorde of whom he holdeth his land in knights seruice, be it the King or Quéene, Duke, Marquesse, or any other, hath the gouernement of his bodie and ma∣riage, or else who that bought him at the first, second or thirde hande. The Prince as hauing so many, must néedes giue or sell his wardes away to other, and so he doeth. Other doe but séeke which way they may make most aduauntage of him, as of an oxe or other beast. These all (say they,) haue no naturall care of the infant, but of their owne gaine, and especially the buyer will not suffer his warde to take any great paines, either in studie, or any other hardenesse, least he should be sicke and die, before he hath maried his daughter, sister or cousin, for whose sake he bought him: and then all his money which he paide for him should be lost. So he, who had a father, which kept a good house, and had all things in order to maintaine it, shall come to his owne, after he is out of wardshippe, woods decayed, houses fallen downe, stocke wasted and gone, land let foorth and plowed to the baren, and to make amends, shall pay yet one yeres rent for reliefe and sue ouster le maind, beside other charges, so that not of manie yeres and peraduenture neuer he shall be able to recouer, and come to the estate where his father left it. This as it is thought was first graunted vpon a great extremitie to King Henrie the 3. for a time
vpon the warre which he had with his Barons, and af∣terward, increased, and multiplied to more and more persons and grieuances, and will be the decay of the nobilitie and libertie of England, Other againe say, the ward hath no wrong. For eyther his father pur∣chased the lande, or it did discend vnto him from his auncesters with this charge. And because he holdeth by knightes seruice, which is in armes and defence, séeing that by age he cannot doe that whereto hee is bound by his lande, it is reason he aunswere that pro∣fite to the Lorde, whereby he may haue as able a man to doe the seruice. The first knights in Rome, those that were chosen equites Romani, had equum publicum on which they serued, and that was at the charge of widowes and wards, as appeareth by Titus Liuius, because that those persons could not doe bodilie ser∣uice to the common wealth. Wherfore this is no newe thing, but thought reasonable in that most wise com∣mon wealth, and to the prudent King Seruius Tullius. As for the education of our common wealth, it was at the first militaire, and almost in all things the scope and deseigne thereof is militaire. Yet was it thought most like, that noble men, good knights, and great captaines would bring up their wards in their owne feates and vertues, and then mary them into like rase and stocke where they may finde and make friendes, who can better looke to the education or better skill of of the bringing vp of a gentleman, than he who for his higher nobilitie hath such a one to holde of him by knights seruice, or would doe it better than he that loo∣keth or may claime such seruice of his ward, when age and yeres will make him able to doe it. That which is saide that this maner of wardship began in the time of King Henrie the 3. cannot séeme true. For in Normandie and other places of Fraunce the same order is.
And that statute made in King Henrie the thirds time touching wards, to him that will wey it wel, may séeme rather a qualification of that matter, and an ar∣gument that the fashion of wardship was long before: but of this matter an other time shall be more conue∣nient to dispute. This may suffice to declare the ma∣ner of it.
THe wiues in Englande be as I saide in potestate maritorum, not that the husbande hath vitae ac necis potestatem, as the Romans had in the olde time of their children, for that is onely in the power of the Prince, and his lawes, as I haue saide before, but that what∣soever they haue before mariage, as soone as mariage is solemnished is their husbandes, I meane of money, plate, iuelles, cattaile, and generally all moueables. For as for lande and heritage followeth the succession, and is ordered by the lawe as I shall say héereafter: and what soever they gette after mariage, they get to their husbands. They neither can giue nor sell anie thing either of their husbandes, or their owne. Theirs no moueable thing is by the law of England constanti matrimonio, but as peculium serui aut filijfamilias: and yet in moueables at the death of her husbande she can claime nothing, but according as hee shall will by his Testament, no more than his sonne can: all the rest is in the disposition of the executors if he die testate. Yet in London and other great cities they haue that lawe and custome, that when a man dieth, his goods be di∣uided into thrée partes. One thirde is imployed vppon the buriall and the bequestes which the testator ma∣keth in his testament. An other thirde part the wife
hath as her right, and the thirde third part is the dewe and right of his children, equally to be diuided among them. So that a man there can make testament but of one thirde of his goods: if he die interstate, the funerals deducted the goods be equally diuided betwéene the wife and the children.
By the common lawe of Englande if a man die in∣testate, the Ordinarie (which is the Bishoppe by com∣mon intendment) sometime the Archdeacon, Dean, or Prebendarie by preuiledge and prescription, doeth commit the administration of the goods to the widowe or the child, or next kinsman of the dead, appointing out portions to such as naturally it belongeth vnto, and the Ordinarie by cōmon vnderstanding hath such gra∣uitie and discretion as shalbe méete for so absolute an authoritie for the most part, following such diuision as is vsed in London, either by thirdes or halfes. Our forefathers newely conuerted to the Christian faith had such confidence in their pastors & instructours, and tooke them to be men of such conscience that they com∣mitted that matter to their discretion, and belike at the first they were such as would séeke no priuate pro∣fit to themselues thereby, that being once so ordeined hath still so continued. The abuse which hath followed was in part redressed by certaine actes of parliament made in the time of king Henrie the eight, touching the probate of testamentes committing of administra∣tion & mortuaries. But to turne to the matter which we nowe haue in hande, the wife is so much in the power of her husband, that not onely her goods by mar∣riage are streight made her husbandes, and she looseth all her administration which she had of them: but also where all English men haue name and surname, as the Romans had, Marcus Tullius, Caius Pompeius, Caius Iulius, whereof the name is giuen to vs at the font, the surname is the name of the gentilitie and
stocke which the sonne doth take of the father alwaies, as the olde Romans did, our daughters so soone as they be maried loose the surname of their father, and of the family and stocke whereof they doe come, and take the surname of their husbands, as transplanted from their family into an other. So that if my wife was called before Philippe Wilford by her owne name and her fathers surname, as soone as she is maried to me she is no more called Philippe Wylford, but Philippe Smith, and so must she write and signe: and as she changeth husbandes, so she chaungeth surnames, called alwaies by the surname of her last husbande. Yet if a woman once marrie a Lorde or a Knight by which occasion she is called my Ladie with the surname of her husbande, if he die and she take a husbande of a meaner estate by whom she shall not be called Ladie (such is the honour we doe giue to women) she shall still be called Ladie with the surname of her first husbande and not of the seconde.
I thinke among the olde Romans those marriages which were made per coemptionem in manum and per aes and libram made the wife in manu & potestate viri, wher∣of also we had in our olde lawe and ceremonies of ma∣riage, a certaine memorie as a viewe and vestigium. For the woman at the Church dore was giuen of the father or some other man next of her kinne into the handes of the husbande, and he layde downe golde and siluer for her vpon the booke, as though he did buy her, the priest belike was in stéede of Lipripeus: our mari∣ages be estéemed perfect by the law of England, when they be solemnished in the Church or Chappell, in the presence of the priest and other witnesses. And this on∣ly maketh both the husbande and the wife capable of all the benefites which our lawe both giue vnto them and their lawefull children. In so much that if I ma∣rie the widowe of one lately dead, which at the time
of her husbandes death was with childe, if the childe be borne after mariage solemnished with me, this childe shalbe my heire, and is accounted my lawefull sonne, not his whose childe it is in deede, so precisely wee doe take the letter where it is saide, pater est quem nuptiae demonstrant. Those waies and meanes which Iustini∣an doth declare to make bastardes to be lawefull chil∣dren, muliers or rather melieurs (for such a terme our lawe vseth for them which be lawefull children) be of no effect in England, neither the Pope nor Emperour, nor the Prince himselfe neuer could there legittimate a bastarde to enioy any benefitte of our lawe, the Par∣liament hath onely that power.
Although the wife be (as I haue written before) in manu & potestate mariti, by our lawe yet they be not kept so streit as in mew and with, a garde as they be in Italy and Spaine, but haue almost as much liber∣tie as in Fraunce, and they haue for the most part all the charge of the house and houshoulde (as it may ap∣peare by Aristotle and Plato the wiues of the Gréekes had in their time) which is in déede the naturall occu∣pation, exercise, office and part of a wife. The husband to meddle with the defence either by lawe or force, and with all forren matters which is the naturall part and office of the man, as I haue written before. And al∣though our lawe may séeme somewhat rigorous to∣wards the wiues, yet for the most part they can handle their husbandes so well and so doulcely and specially when their husbands be sicke: that where the lawe gi∣ueth them nothing, their husbandes at their death of their good will giue them all. And fewe there be that be not made at the death of their husbandes either sole or chiefe executrixes of his last wil and testament, and haue for the most part the gouernement of the children and their portions: except it be in London, where a peculiar order is taken by the citie much after the fa∣shion
of the ciuill lawe.
All this while I haue spoken onely of moueable goods: if the wife be an enheretrix & bring lande with her to the mariage, that lande descendeth to her eldest sonne, or is diuided among her daughters. Also the manner is, that the lande which the wife bringeth to the mariage or purchaseth afterwardes, the husbande can not sell nor alienate the same, no not with here con∣sent, nor she her selfe during the mariage, except that she be sole examined by a Iudge at the common lawe: and if he haue no childe by her and she die, the lande go∣eth to her next heires at the common lawe: but if in the mariage he haue a childe by her which is heard once to crie, whether the childe liue or die, the husband shall haue the vsufruite of her landes, that is the pro∣fitte of them during his life, and that is called the cour∣tisie of Englande.
Likewise if the husbande haue any lande either by inheritance descended or purchased and bought, if hee die before the wife, she shall haue the vsufruite of one thirde part of his landes. That is, she shall holde the one thirde part of his landes during her life as her dowrie, whether he hath child by her or no. If he hath any children, the rest descendeth streight to the eldest: if he hath none, to the next heire at the common lawe: and if she mislike the diuision she, shal aske to be indow∣ed of the fairest of his landes to the thirde part.
This which I haue written touching mariage and the right in moueables and vnmoueables which com∣meth thereby, is to be vnderstoode by the common law when no priuate contract is more particularly made. If there be any priuate pacts, couenants, and contracts made before the mariage betwixt the husbande and the wife, by thēselues, by their parents, or their friends, those haue force and be kept according to the firmitie and strength in which they are made. And this is y∣nough
of wiues and mariage.
OUr children be not in potestate parentum, as the chil∣dren of the Romans were: but as soone as they be puberes, which we call the age of discretion, before that time nature doth tell they be but as it were partes pa∣rentum. That which is theirs they may giue or sell, & purchase to themselues either landes and other mouea∣bles the father hauing nothing to doe therewith. And therefore emancipatio is cleane superfluous, we knowe not what it is. Likewise sui heredes complaints, de in-officioso testamento or praeteritorum liberorum non emanci∣patorum haue no effect nor vse in our lawe, nor wee haue no manner to make lawefull children but by mariage, and therefore we knowe not what is adoptio nor arrogatio. The testator disposeth in his last will his moueable goods fréely as he thinketh méete and conue∣nient without controlement of wife or children. And our testamentes for goods moueable be not subiect to the ceremonies of the ciuill lawe, but made with all libertie and fréedome, and iure militari. Of landes as ye haue vnderstoode before, there is difference: for when the owner dieth, his lande discendeth onely to his el∣dest sonne, all the rest both sonnes & daughters haue nothing by the common lawe, but must serue their el∣dest brother if they will, or make what other shift they can to liue: except that the father in life time doe make some conueiance and estates of part of his land to their vse, or els by deuise, which word amongest our lawiers doth betoken a testament written, sealed and deliue∣red in the life time of the testator before witnesse: for without those ceremonies a bequest of landes is not
auailable. But by the common lawe if hee that dieth hath no sonnes but daughters, the lande is equally di∣uided among them, which portion is made by agrée∣ment or by lotte. Although as I haue saide ordinarily and by the common lawe, the eldest sonne inheriteth all the lands, yet in some countries all the sonnes haue equall portion, and that is called ganelkinde, and is in many places in Kent. In some places the youngest is sole heire: and in some places after an other fashion. But these being but particular customes of certaine places and out of the rule of the common law, doe little appertain to the disputation of the policie of the whole Realme, and may be infinite. The common wealth is iudged by that which is most ordinarily and common∣ly doone through the whole Realme.
AFter that we haue spoken of all the sortes of frée men according to the diuersitie of their estates and persons, it resteth to say somewhat of bondmen which were called serui, which kinde of people & the dispositi∣on of them and about them doth occupie the most part of Iustinians Digestes, and Code. The Romans had two kindes of bondmen, the one which were called serui, and they were either which were bought for mo∣ney, taken in warre, left by succession, or purchased by other kinde and lawefull acquisition, or else borne of their bonde women and called vernae: all those kinde of bondmen be called in our lawe villens in grosse, as ye would say immediatly bonde to the person and his heires. An other they had as appeareth in Iustinians time, which they called adscripticij glebae or agri censiti. These were not bond to the person, but to the mannor
or place, and did followe him who had the manors, & in our lawe are called villaines regardants, for be∣cause they be as members, or belonging to the manor or place. Neither of the one sort nor of the other haue we any number in England. And of the first I neuer knewe any in the realme in my time: of the seconde so fewe there be, that it is not almost worth the spea∣king. But our lawe doth acknowledge them in both those sortes. Manumission of all kinde of villaines or bondmen in Englande is vsed and done after diuerse sortes, and by other and more light and easie meanes than is prescribed in the ciuil lawe, and being once manumitted, he is not libertus manumittentis, but sim∣ply liber: howbeit sith our Realme hath receiued the Christian religion which maketh vs all in Christ bre∣thren, and in respect of God and Christ conseruos, men began to haue conscience to hold in captiuitie and such extreme bondage him whome they must acknowledge to be his brother, and as we vse to terme him Christi∣an, that is who looketh in Christ and by Christ to haue equall portion with them in the Gospel and saluation. Vpon this scruple, in continuance of time, and by long succession, the holie fathers, Munkes and Friers in their confession, and specially in their extreme & dead∣ly sicknesses, burdened the consciences of them whom they had vnder their hands: so that temporall men by little and litle by reason of that terror in their consci∣ence, were glad to manumit all their villaines: but the said holie fathers, with the Abbots and Priors, did not in like sort by theirs, for they had also conscience to impouerish and dispoyle the Churches so much as to manumit such as were bond to their Churches, or to the mannors which the Church had gotten, and so kept theirs still. The same did the Bishoppes also till at the last and now of late some Bishoppes to make a péece of money manumitted theirs partly for argent, partly for
slaunders, that they séemed more cruell than the tempo∣raltie: after the monasteries comming into temporall mens handes haue béene occasion that now they be al∣most all manumitted. The most part of bondmen when they were, yet were not vsed with vs so cruelly nor in that sort as the bondmen at the Romane ciuill law, as appeareth by their Comedies, nor as in Gréece as appeareth by theirs: but they were suffered to en∣joy coppieholde lande to gaine and get as other serues that nowe and then their Lordes might fléese them and take a péece of money of them, as in France the Lords doe taile them whom they call their subiectes at their pleasure, and cause them to pay such summes of money as they list to put vpon them. I thinke both in France and England the chaunge of religion to a more gentle, humane and more equall sort (as the christian religi∣on as in respectes of the Gentiles) caused this olde kinde of seruile seruitude and slauerie to be brought in∣to that moderation, for necessitie first to villaines re∣gardants, and after to seruitude of landes and tenures, and by litle and litle finding out more ciuill and gen∣tle meanes and more equall to haue that doone which in time of heathenesse seruitude or bondage did, they al∣most extinguished the whole. For although all persons christians be brethren by baptisme in Iesu Christ, and therefore may appeare equally frée: yet some were and still might be christianed being bond and serue, and whom as the baptisme did find so it did leaue them, for it chaungeth not ciuill lawes nor compactes amongest men which be not contrarie to Gods lawes, but rather maintaineth them by obedience. Which séeing men of good conscience hauing that scruple whereof I wrote before, haue by litle and litle found meanes to haue and obtaine the profit of seruitude and bondage which gen∣tilitie did vse and is vsed to this day amongest Christi∣ans on the one part, and Turkes and Gentils on the
other part, whē warre is betwixt them vpon those whō they take in battaile. Turkes and Gentiles I call them, which vsing not our lawe the one beléeueth in one God, the other in many gods, of whom they make Images. For the lawe of Iewes is well ynough knowen, & at this day so farre as I can learne, amongst all people Iewes be holden as it were in a common seruitude, and haue no rule nor dominion as their own prophesies doe tell that they should not haue after that Christ was promised to them, was of them refused for when they would not acknowledge him obstinatly for, taking their helpe in soule for the life to come and ho∣nour in this worlde for the time present not taking the good tidinges, newes, and euangill brought to them for their disobedience by the great grace of God, and by the promise of the Prophets ••ructified in vs which be Gentils and brought forth this humanitie, gentlenes, honour and godly knowledge which is seene at this present. But to returne to the purpose.
This perswasiō I say of Christians not to make nor kéepe his brother in Christ, seruile, bond and vnder∣ling for euer vnto him, as a beast rather than as a man, and the humanitie which the Christian reli∣gion doth teache, hath engendered through Realmes not néere to Turkes and Barbarians, a doubt, a con∣science and scruple to haue seruants and bondmen: yet necessitie on both sides, of the one to haue helpe, on the other to haue seruice, hath kept a figure or fashion thereof. So that some would not haue bondmen, but ascripticij glebae, and villaines regardant to the ground, to the intent their seruice might be furnished, and that the countrie being euill, vnwholsome, and other wise barren, should not be desolate. Others afterwardes found out the wayes and meanes, that not the men but the land should be bound and bring with it such bondage and seruice to him that occupieth it, as to ca∣rie
the Lordes dung vnto the fieldes, to plough his ground at certaine daies, sowe, reape, come to his Court, sweare faith vnto him, and in the ende to holde the lande but by copie of the Lords court rolle, and at the will of the Lord. This tenure is called also in our lawe, villaine, bonde, or seruile tenure: yet to consider more déepely all lande, euen that which is called most frée lande, hath a bondage annexed vnto it, not as na∣turally the lower ground, must suffer and receiue the water and filth which falleth from the higher ground, nor such as Iustinian speaketh of de seruitudinibus praedi∣orum rusticorum & vrbanorum, but the lande doeth bring a certaine kind of seruitude to the prossessor. For no man holdeth land simply frée in Englande, but he or she that holdeth the Crowne of Englande: all others holde their land in fée, that is vpon a faith or trust, and some seruice to be done to an other Lorde of a mannor as his superior, and he againe of an higher Lorde, till it come to the Prince & him that holdeth the Crowne. So that if a man die, and it be found that he hath land which he holdeth, but of whom no man can tell, this is vnderstoode to be holden of the Crowne, and in capi∣tie, which is much like to knights seruice, and draw∣eth vnto it thrée seruices, homage, ward and mariage: That is, he shall sweare to be his man, and to be true vnto him of whom he holdeth the lande. His sonne who holdeth the land after the death of his father, shall be maried where it pleaseth the Lorde. He that hol∣deth the lande most freely of a temporall man (for franke almose and franke mariage hath an other cause and nature) holdeth by fealtie onely, which is, he shal sweare to be true to the Lorde, and doe such seruice as appertaineth for the land which he holdeth of the Lord. So that all frée lande in Englande is holden in fée or feodo, which is asmuch to say as in fide or fiducia: That is, in trust and confidence, that he shall be true to the
Lorde of whom he holdeth it, pay such rents, doe such seruice, and obserue such conditions as was annexed to the first donation. Thus all sauing the Prince be not viri domini, but rather fiduciary domini, & possessores: This is a more likely interpretation than that which Litleton doeth put in his booke, who saith that feodum idem est quod haereditas, which it doeth betoken in no language. This hapneth many times to them who be of great witte and learning, yet not séene in many tongues, or marketh not the deduction of wordes which time doth alter. Fides in Latine the Gothes com∣ming into Italie and corrupting the language, was turned first into fede, and at this day in Italie they will say in fide, en fede or ala fe. And some vncunning Law∣••ers that would make a newe barbarous latine worde to betoken lande giuen in fidem, or as the Italian saith in fede, or fe, made it in feudum or feodum. The nature of the worde appeareth more euident in those which we call to fef, feof or feoffees, the one be fiduciary posses∣sores, or fidei commissarij, the other is, dare in fiduciam, or fidei commissum, or more latinely, fidei committere. The same Litleton was as much deceiued in withernam, & diuerse other olde wordes. This withernam he inter∣preteth vetitum nauium, in what language I knowe not: whereas in trueth it is in plaine Dutche and in our olde Saxon language, wyther nempt, alterum ac∣cipere, iterum rapere, a worde that betokeneth that which in barbarous Latine is called represalia, when one taking of me a distresse, which in Latine is called pignus, or any other thing, and carying it away out of the iurisdiction wherein I dwell, I take by order of him that hath iurisdiction, an other of him againe or of some other of that iurisdiction, and doe bring it into the iurisdiction wherein I dwell, that by equal wrong I may come to haue equall right. The manner of represalia, and that we call withernam, is not altoge∣ther
one: But the nature of them both is as I haue described, and the proper signification of the words doe not much differ. But to returne thither where we did digresse: ye see that where the persons be frée, and the bodies at full libertie and maximè ingenui▪ yet by an∣nexing a condition to the lande, there is meanes to bring the owners and possessors thereof into a certaine seruitude or rather libertinitie: That the tenaunts beside paying the rent accustomed, shal owe to the Lord a certaine faith, duetie, trust, obedience, and (as we terme it) certaine seruice as libertus, or cliens patro∣no: which because it doeth not consist in the persons, for the respect in them doeth not make them bond, but in the lande and occupation thereof, it is more properly expressed in calling the one tenaunt, the other Lord of the fée, than either libertus or cliens can doe the one, or patronus the other: for these wordes touche rather the persons, and the office and duetie betwéene them, than the possessions. But in our case leauing the possessi∣on and lande, all the obligation of seruitude and ser∣uice is gone.
An other kinde of seruitude or bondage is vsed in Englande for the necessitie thereof, which is called apprenticehoode. But this is onely by couenaunt, and for a time, & during the time it is vera seruitus. For whatsoeuer the apprentice getteth of his owne labour, or of his masters occupation or stocke, he getteth to him whose apprentice he is, he must not lie foorth of his masters doores, he must not occupie any stocke of his owne, nor mary without his masters licence, and he must doe all seruile offices about the house, and be obedient to all his masters commaundementes, and shall suffer such correction as his master shall thinke méete, and is at his masters cloathing and nourishing, his master being bounde onely to this which I haue saide, and to teache him his occupation, and for that he
serueth, some for vij. or viij. yeres, some ix. or x. yeres as the masters and the friends of the young man shall thinke méete or can agrée: altogether (as Polidore hath noted) quasi pro emptitio seruo: neuerthelesse that neither was the cause of the name apprentice, neither yet doeth the worde betoken that which Polydore suppo∣seth, but it is a Frenche worde, and betokeneth a learner or scholer. Apprendre in French is to learne, and apprentise is as much to say in Frenche (of which tongue we borowed this worde and many more other) as discipulus in Latine: likewise he to whom he is bound, is not called his Lorde but his master, as ye would say his teacher. And the pactions agréed vpon, be put in writing, signed and sealed by the parties, and registred for more assurance: without being such an apprentice in London, and seruing out such a serui∣tude in the same Citie for the number of yéeres agréed vpon, by order of the Citie amongest them, no man be∣ing neuer so much borne in London, and of parentes londoners is admitted to be a Citizen or frée man of London: the like is vsed in other great Cities of Eng∣lande. Besides apprentises, others be hired for wa∣ges, and be called seruaunts or seruing men and wo∣men throughout the whole Realme, which be not in such bondage as apprentises, but serue for the time for daily ministrie, as serui and ancillae did in the time of gentilitie, and be for other matters in libertie as full frée men and women.
But all seruaunts, labourers and others not mary∣ed, must serue by the yere: and if he be in couenaunt, he may not depart out of his seruice without his masters licence, and he must give his master warning that he will depart one quarter of a yere before the terme of the yere expireth, or else he shalbe compelled to serue out an other yere. And if any young man vnmaried be without seruice, he shalbe compelled to get him a ma∣ster
whom he must serue for that yere, or else he shalbe punished with stockes and whipping as an idlè vaga∣bond. And if any man maried or vnmaried, not hauing rent or liuing sufficient to maintaine himselfe, doe liue so idely, he is enquired of, and sometime sent to the gaole, sometime otherwise punished as a sturdie vaga∣bond: so much our policie doth abborre idlenesse. This is one of the chiefe charges of the Iustices of peace in e∣uerie Shire. It is taken for vngentlenesse and dis∣honour, and a shewe of enmitie, if any gentleman doe take an other gentlemans seruaunt (although his ma∣ster hath put him away) without some certificate from his master eyther by word or writing, that he hath dis∣charged him of his seruice. That which is spoken of men seruaunts, the same is also spoken of women ser∣uaunts. So that all youth that hath not sufficient re∣uenues to maintaine it selfe, must néeds with vs serue, and that after an order as I haue written. Thus ne∣cessitie & want of bondmen hath made men to vse frée∣men as bondmen to all seruile seruices: but yet more li∣berally and fréely, and with a more equalitie and mode∣ration, than in time of gentilitie slaues and bondemen were woont to be vsed, as I haue saide before. This first and latter fashion of temporall seruitude, and v∣pon paction is vsed in such countryes, as haue left off the old accustomed maner of seruaunts, slaues, bonde∣men and bondwomen, which was in vse before they had receiued the Christian faith. Some after one ••ort, and some either more or lesse rigorouslie, according as the nature of the people is enclined, or hath deuised a∣mongest themselues for the necessitie of seruice.
THe Archebishops and Bishops haue a certaine pe∣culiar iurisdiction vnto them especially in foure maner of causes: Testamentes and legations, Tythes and mortuaries, mariage and adulterie or fornication, and also of such things as appertaine to orders a∣mongest themselues and matters concerning religion. For as it doeth appeare, our auncestors hauing the common wealth before ordeined & set in frame, when they did agree to receiue the true and Christian religi∣on, that which was established before, and concerned externe policie (which their Apostles, Doctors and Preachers did allowe) they helde and kept still with that which they brought in of newe. And those things in kéeping whereof they made conscience, they com∣mitted to them to be ordered and gouerned as such things, as of which they had no skill, as to men in whom for the holinesse of their life and good conscience, they had a great and sure confidence. So those matters be ordered in their Courts, and after the fashion and maner of the lawe ciuil or rather common by citation, libel, contestationem litis, examination of witnesses pri∣uilie, by exceptions, replications apart and in wri∣ting, allegations, matters by sentences giuen in wri∣ting, by appellations from one to an other as well a grauamine as a sententia definitiua, and so they haue o∣ther names, as Proctor, Aduocates, Assessors, Ordina∣ries, and Commissaries, &c. farre from the manner of our order in the common lawe of Englande, and from that fashion which I haue shewed you before. Where∣fore
if I say the testament is false and forged, I must sue in the spirituall lawe, so also if I demaunde a lega∣cie: but if I sue the executor or administrator (which is he in our lawe, who is in the ciuill lawe baeres or bonorū mobilium possessor ab intestato) for a debt which the dead ought me, I must sue in the temporall court. These two courtes the temporall and the spirituall be so diuided, that who so euer sueth for any thing to Rome or in any spirituall court for that cause or acti∣on which may be pleaded in the temporall court of the Realme, by an olde lawe of Englande hee falleth into a praemunire, that is hee forsetteth all his goods to the Prince, and his body to remaine in prison during the Princes pleasure: and not that onely, but the Iudge, the scribe, the procurer and assessor which receiueth and doth maintaine that vsurped pleading doth incur the same daunger. Whether the word praemunire doeth betoken that the authoritie & iurisdiction of the realme is prouided for before and defended by that lawe, and therefore it hath that name praemunire or praemuniri, or because that by that lawe such an attemture hath had warning giuen before to him of the daunger into which he falleth by such attempt, and then praemunire is barbarously written for praemonere, praemoneri, (as some men haue helde opinion) I will not define, the effect is as I haue declared: and the lawe was first made in king Richarde the secondes time, and is the remedie which is vsed when the spirituall iurisdiction will goe about to encroch any thing vpon the temporall courts. Because this court or forme which is called curia chri∣stianitatis, is yet taken as appeareth for an externe and forren court, and differreth from the policie and man∣ner of gouernment of the Realme, and is an other court (as appeareth by the act and writ of praemunire) than curia regis aut reginae: Yet at this present this court as well as others hath her force, power, authoritie,
rule and iurisdiction, from the royall maiestie and the crowne of England & from no other forren potentate or power vnder God (which being granted, as indéede it is true) it may nowe appeare by some reason that the first statute of praemuni••e whereof I haue spoken, hath nowe no place in Englande, séeing there is no plea∣ding alibi quam in curia regis ac reginae.
I haue declared summarily as it were in a chart or mappe, or as Aristotle termeth it, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 the forme and manner of the gouernement of Englande, and the policie thereof, and sette before your eies the princi∣pall pointes wherein it doth differ from the policie or gouernment at this time vsed in Fraunce, Italie, Spaine, Germanie and all other countries, which doe followe the ciuill lawe of the Romanes compiled by Iustinian into his pandects and code: not in that sort as Plato made his common wealth, or Zenophon his kingdom of Persia, nor as Syr Thomas More his Vto∣pia being feigned common wealths such as neuer was nor neuer shall be, vaine imaginations, phantasies of Philosophers to occupie the time and to exercise their wittes: but so as Englande standeth and is gouerned at this day the xxviij of March Anno 1565. in the vij yeare of the raigne and administration thereof by the most vertuous and noble Quéene Elizabeth, daughter to King Henrie the eight, and in the one & fiftéeth yéere of mine age, when I was ambassador for her maiestie in the court of Fraunce, the scepter whereof at that time the noble Prince and of great hope Charles Max∣imilian did holde, hauing then raigned iiij yeares. So that whether I writ true or not, it is easie to be séene with eies (as a man would say) and felt with handes. Wherfore this being as a proiect or table of a common wealth truely laide before you, not fained by putting a case: let vs compare it with common wealthes, which be at this day in esse, or doe remaine discribed in true
histories, especially in such pointes wherein the one dif∣fereth from the other, to sée who hath taken the righter, truer, and more commodious way to gouerne the peo∣ple aswell in warre as in peace. This will be no illibe∣rall occupation for him that is a Philosopher and hath a delight in disputing, nor vnprofitable for him who hath to do & hath good will to serue the Prince and the com∣mon wealth in giuing coun∣sell for the better admi∣nistration thereof.
Thomas Smyth.
No more eui∣dence on the behalfe of the plaintife, but of the defen∣dant there may.
The statute of 23. Henrie 8. doth not abo∣lish com∣mon lawe, but giueth a more profitable for the plaintife.
In appeale the battle is tryed by the parties onely, and in writs of right by champions.
The battle or Iurie is at the election of the defendant
Sent for by Sub poena.
Gardian in cheualry, and gardian in Socage.
But the Lorde shalbe puni∣shed for the wast, by losse of the ward: or treble dam∣mages, if that suffice not.
She is no La∣die by the law although so called of cour∣tisie.
It is auoida∣ble after the husbandes death, except it be for xxi. yeares or three liues ac∣cording to the statute, or ex∣cept they leuie a fine.
She shalbe en∣dowed at ye dis∣cretion of the sherife, except in few cases.
Litleton did not interpret the word feodu simply, but ra∣ther define or describe the nature therof.
Litleton seene in the tongues as Sir Tho∣mas Smith was in Litle∣ton.
Which ought to be tride in the temporall court.