Читать книгу Elizabethan England - William Henry Harrison - Страница 22

That Samothes (or Dis) gave the first laws to the Celts (whose kingdom he erected about the fifteenth of Nimbrote), the testimony of Berosus is proof sufficient. For he not only affirmeth him to publish the same in the fourth of Ninus, but also addeth thereto how there lived none in his days of more excellent wisdom nor politic invention than he, whereof he was named Samothes, as some other do affirm. What his laws were, it is now altogether unknown, as most things of this age, but that they were altered again at the coming of Albion no man can absolutely deny, sith new lords use commonly to give new laws, and conquerors abolish such as were in use before them.

The like also may be affirmed of our Brute, notwithstanding that the certain knowledge, so well of the one as of the other, is perished, and nothing worthy memory left of all their doings. Somewhat yet we have of Mulmutius, who not only subdued such princes as reigned in this land, but also brought the realm to good order that long before had been torn with civil discord. But where his laws are to be found, and which they be from other men’s, no man living in these days is able to determine.

Certes there was never prince in Britain of whom his subjects conceived better hope in the beginning than of Bladudus, and yet I read of none that made so ridiculous an end. In like sort there hath not reigned any monarch in this isle whose ways were more feared at the first than those of Dunwallon (King Henry the First excepted), and yet in the end he proved such a prince as after his death there was in manner no subject that did not lament his funeral. And this only for his policy in governance, severe administration of justice, and provident framing of his laws and constitutions for the government of his subjects. His people also, coveting to continue his name unto posterity, entitled those his ordinances according to their maker, calling them by the name of the “Laws of Mulmutius,” which endured in execution among the Britons so long as our homelings had the dominion of this isle. Afterwards, when the comeling Saxons had once obtained the superiority of the kingdom, the majesty of those laws fell for a time into such decay that although “Non penitus cecidit, tamen potuit cecidisse videri,” as Leland saith; and the decrees themselves had utterly perished indeed at the very first brunt had they not been preserved in Wales, where they remained amongst the relics of the Britons, and not only until the coming of the Normans, but even until the time of Edward the First, who, obtaining the sovereignty of that portion, endeavoured very earnestly to extinguish those of Mulmutius and to establish his own.

But as the Saxons at their first arrival did what they could to abolish the British laws, so in process of time they yielded a little to relent, and not so much to abhor and mislike of the laws of Mulmutius as to receive and embrace the same, especially at such time as the said Saxon princes entered into amity with the British nobility, and after that began to join in matrimony with the British ladies, as the British barons did with the Saxon frowes, both by an especial statute and decree, whereof in another treatise I have made mention at large. Hereof also it came to pass in the end that they were contented to make a choice and insert no small numbers of them into their own volumes, as may be gathered by those of Athelbert the Great, surnamed King of Kent, Inas and Alfred, kings of the West Saxons, and divers other yet extant to be seen. Such also was the lateward estimation of them, that when any of the Saxon princes went about to make new ordinances they caused those of Mulmutius (which Gildas sometime translated into Latin) to be first expounded unto them; and in this perusal, if they found any there already framed that might serve their turn, they forthwith revived the same and annexed them to their own.

But in this dealing the diligence of Alfred is most of all to be commended, who not only chose out the best, but gathered together all such whatsoever the said Mulmutius had made: and then, to the end they should lie no more in corners as forlorn books and unknown to the learned of his kingdom, he caused them to be turned into the Saxon tongue, wherein they continued long after his decease.

As for the Normans, who for a season neither regarded the British nor cared for the Saxon statutes, they also at the first utterly misliked of them, till at the last, when they had well weighed that one kind of regiment is not convenient for all peoples (and that no stranger, being in a foreign country newly brought under obedience, could make such equal ordinances as he might thereby govern his new commonwealth without some care and trouble), they fell in with such a desire to see by what rule the state of the land was governed in the time of the Saxons that, having perused the same, they not only commended their manner of regiment, but also admitted a great part of their laws (now current under the name of “St. Edward’s Laws,” and used as principles and grounds), whereby they not only qualified the rigour of their own, and mitigated their almost intolerable burden of servitude which they had lately laid upon the shoulders of the English, but also left us a great number of the old Mulmutian laws, whereof the most part are in use to this day, as I said, albeit that we know not certainly how to distinguish them from others that are in strength amongst us.

After Dunwallon, the next lawgiver was Martia, whom Leland surnameth Proba, and after him John Bale also, who in his Centuries doth justly confess himself to have been holpen by the said Leland, as I myself do likewise for many things contained in this treatise. She was wife unto Gutteline, king of the Britons, and being made protectrix of the realm after her husband’s decease in the nonage of her son, and seeing many things daily to grow up among her people worthy reformation, she devised sundry and those very politic laws for the governance of her kingdom, which her subjects, when she was dead and gone, did name the “Martian Statutes.” Who turned them into Latin as yet I do not read, howbeit (as I said before of the laws of Mulmutius) so the same Alfred caused those of this excellently well-learned lady (whom divers commend also for her great knowledge in the Greek tongue) to be turned into his own language, whereupon it came to pass that they were daily executed among his subjects, afterwards allowed of (among the rest) by the Normans, and finally remain in use in these our days, notwithstanding that we cannot dissever them also very readily from the other.

The seventh alteration of laws was practised by the Saxons; for I overpass the use of the civil ordinances used in Rome, finally brought hither by the Romans, and yet in perfect notice among the civilians of our country, though never generally received by all the several regions of this island. Certes there are great numbers of these latter, which yet remain in sound knowledge, and are to be read, being comprehended for the most part under the names of the Martian and the Saxon law. Beside these also, I read of the Dane law, so that the people of middle England were ruled by the first, the West Saxons by the second, as Essex, Norfolk, Suffolk, Cambridgeshire, and part of Hertfordshire were by the third, of all the rest the most unequal and intolerable. And as in these days whatsoever the prince in public assembly commanded upon the necessity of his subjects or his own voluntary authority was counted for law, so none of them had appointed any certain place whereunto his people might repair at fixed times for justice, but caused them to resort commonly to their palaces, where, in proper person, they would often determine their causes, and so make shortest work, or else commit the same to the hearing of other, and so despatch them away. Neither had they any house appointed to assemble in for the making of their ordinances, as we have now at Westminster. Wherefore Edmund gave laws at London and Lincoln, Ethelred at Habam, Alfred at Woodstock and Wannetting, Athelstane in Excester, Crecklade, Feversham, and Thundersley, Canutus at Winchester, etc.: other in other places, whereof this may suffice.[98]

Hitherto also (as I think) sufficiently of such laws as were in use before the Conquest. Now it resteth that I should declare the order of those that have been made and received since the coming of the Normans, referred to the eighth alteration or change of our manner of governance, and thereunto do produce threescore and four several courts. But for as much as I am no lawyer, and therefore have but little skill to proceed in the same accordingly, it shall suffice to set down some general discourses of such as are used in our days, and so much as I have gathered by report and common hearsay.

We have therefore in England sundry laws, and first of all the civil, used in the chancery, admiralty, and divers other courts, in some of which the severe rigour of justice is often so mitigated by conscience that divers things are thereby made easy and tolerable which otherwise would appear to be mere injury and extremity.

We have also a great part of the Canon law daily practised among us, especially in cases of tithes, contracts of matrimony, and such like, as are usually to be seen in the consistories of our bishops and higher courts of the two archbishops, where the exercise of the same is very hotly followed.

The third sort of laws that we have are our own, and those always so variable and subject to alteration and change that oft in one age divers judgments do pass upon one manner of case, whereby the saying of the poet—

“Tempora mutantur, et nos mutamur in illis,”

may very well be applied unto such as, being urged with these words, “In such a year of the prince this opinion was taken for sound law,” do answer nothing else but that “the judgment of our lawyers is now altered, so that they say far otherwise.”

The regiment that we have therefore after our own ordinances dependeth upon three laws, to wit, Statute Law, Common Law, Customary Law and Prescription, according to the triple manner of our trials and judgments, which is by Parliament, verdict of twelve men at an assize, or wager of battle, of which the last is little used in our days, as no appeal doth hold in the first and last rehearsed. But to return to my purpose.

The first is delivered unto us by Parliament, which court (being for the most part holden at Westminster, near London) is the highest of all other, and consisteth of three several sorts of people, that is to say, the nobility, clergy, and commons of this realm, and thereto is not summoned but upon urgent occasion when the prince doth see his time, and that by several writs, dated commonly full six weeks before it begin to be holden. Such laws as are agreed upon in the higher house by the lords spiritual and temporal, and in the lower house by the commons and body of the realm (whereof the convocation of the clergy, holden in Paul’s, or, if occasion so require, in Westminster Church, is a member), there speaking by the mouth of the knights of the shire and burgesses, remain in the end to be confirmed by the prince, who commonly resorteth thither of custom upon the first and last days of this court, there to understand what is done and give his royal consent to such statutes as him liketh of. Coming therefore thither into the higher house, and having taken his throne, the speaker of the parliament (for one is always appointed to between the houses, as an indifferent mouth for both) readeth openly the matters there determined by the said three estates, and then craveth the prince’s consent and final confirmation of the same. The king, having heard the sum and principal points of each statute briefly recited unto him, answereth in French with great deliberation unto such as he liketh “Il nous plaist,” but to the rest, “Il ne plaist,” whereby the latter are made void and frustrate. That also which his majesty liketh of is hereby authorised, confirmed, and ever after holden for law, except it be repealed in any like assembly. The number of the commons assembled in the lower house beside the clergy consisteth of ninety knights. For each shire of England hath two gentlemen or knights of greatest wisdom and reputation, chosen out of the body of the same for that only purpose, saving that for Wales one only is supposed sufficient in every county, whereby the number aforementioned is made up. There are likewise forty and six citizens, two hundred and eighty-nine burgesses, and fourteen barons, so that the whole assembly of the laity of the lower house consisteth of four hundred thirty and nine persons, if the just number be supplied. Of the laws here made likewise some are penal and restrain the common law, and some again are found to enlarge the same. The one sort of these also are for the most part taken strictly according to the letter, the other more largely and beneficially after their intendment and meaning.

The Common Law standeth upon sundry maxims or principles and years or terms, which do contain such cases as (by great study and solemn argument of the judges, sound practice confirmed by long experience, fetched even from the course of most ancient laws made far before the Conquest, and thereto the deepest reach and foundations of reason) are ruled and adjudged for law. Certes these cases are otherwise called pleas or action, whereof there are two sorts, the one criminal and the other civil. The means and messengers also to determine those causes are our writs or briefs, whereof there are some original and some judicial. The parties plaintiff and defendant, when they appear, proceed (if the case do so require) by plaint or declaration, bar or answer, replication, rejoinder, and so by rebut, surrebut, to issue and trial, if occasion so fall out, the one side affirmatively, the other negatively, as common experience teacheth. Our trials and recoveries are either by verdict and demur, confession or default, wherein if any negligence or trespass hath been committed, either in process and form, or in matter and judgment, the party aggrieved may have a writ of error to undo the same, but not in the same court where the former judgment was given.

Customary Law consisteth of certain laudable customs used in some private country, intended first to begin upon good and reasonable considerations, as gavelkind, which is all the male children equally to inherit, and continued to this day in Kent, where it is only to my knowledge retained, and nowhere else in England. It was at the first devised by the Romans, as appeareth by Cæsar in his Commentaries, wherein I find that, to break and daunt the force of the rebellious Germans, they made a law that all the male children (or females for want of males, which holdeth still in England) should have their father’s inheritance equally divided amongst them. By this means also it came to pass that, whereas before time for the space of sixty years they had put the Romans to great and manifold troubles, within the space of thirty years after this law was made their power did wax so feeble and such discord fell out amongst themselves that they were not able to maintain wars with the Romans nor raise any just army against them. For, as a river running with one stream is swift and more plentiful of water than when it is drained or drawn into many branches, so the lands and goods of the ancestors being dispersed amongst their issue males, of one strong there were raised sundry weak, whereby the original or general strength to resist the adversary became enfeebled and brought almost to nothing. “Vis unita (saith the philosopher) fortior est eadem dispersa,” and one good purse is better than many evil; and when every man is benefited alike each one will seek to maintain his private estate, and few take care to provide for public welfare.

Burrowkind is where the youngest is preferred before the eldest, which is the custom of many countries of this region: also the woman to have the third of her husband’s possessions, the husband that marrieth an heir to have such lands as move by her during his natural life if he survive her and hath a child by her which hath been heard cry through four walls, etc. Of such like to be learned elsewhere, and sometimes frequented generally over all.

Prescription is a certain custom which hath continued time out of mind, but it is more particular than customary law, as where only a parish or some private person doth prescribe to have common, or a way in another man’s soil, or tithes to be paid after this or that manner, I mean otherwise than the common course and order of the law requireth.

Whereof let this suffice at this time, instead of a larger discourse of our own laws, lest I should seem to enter far into that whereof I have no skill. For what hath the meditation of the law of God to do with any precise knowledge of the law of man, sith they are several trades, and incident to divers persons?

There are also sundry usual courts holden once in every quarter of the year, which we commonly call terms, of the Latin word terminus, wherein all controversies are determined that happen within the queen’s dominions. These are commonly holden at London, except upon some great occasion they be transferred to other places. At what times also they are kept, both for spiritual and temporal dealing, the table ensuing shall easily declare. Finally, how well they are followed by suitors, the great wealth of lawyers without any travel of mine can readily express. For, as after the coming of the Normans the nobility had the start, and after them the clergy, so now all the wealth of the land doth flow unto our common lawyers, of whom some one having practised little above thirteen or fourteen years is able to buy a purchase of so many one thousand pounds: which argueth that they wax rich apace, and will be richer if their clients become not the more wise and wary hereafter. It is not long since a sergeant at the law—whom I could name—was arrested upon an extent, for three or four hundred pounds, and another standing by did greatly marvel that he could not spare the gains of one term for the satisfaction of that duty. The time hath been that our lawyers did sit in Paul’s upon stools against the pillars and walls to get clients, but now some of them will not come from their chambers to the Guildhall in London under ten pounds, or twenty nobles at the least. And one, being demanded why he made so much of his travel, answered that it was but folly for him to go so far when he was assured to get more money by sitting still at home. A friend of mine also had a suit of late of some value, and, to be sure of counsel at his time, he gave unto two lawyers, whose names I forbear to deliver, twenty shillings apiece, telling them of the day and hour wherein his matter should be called upon. To be short, they came not unto the bar at all; whereupon he stayed for that day. On the morrow, after he met them again, increased his former gifts by so much more, and told them of the time; but they once again served him as before. In the end, he met them both in the very hall door, and, after some timorous reprehension of their uncourteous demeanour toward him, he bestowed either three angels or four more upon each of them, whereupon they promised peremptorily to speak earnestly in his cause. And yet for all this, one of them, not having yet sucked enough, utterly deceived him: the other indeed came in, and, wagging a scroll which he had in his hand before the judge, he spake not above three or four words, almost so soon uttered as a “Good morrow,” and so went from the bar. And this was all the poor man got for his money, and the care which his counsellors did seem to take of his cause then standing upon the hazard. But enough of these matters; for, if I should set down how little law poor men can have for their small fees in these days, and the great murmurings that are on all sides uttered against their excessive taking of money—for they can abide no small gain—I should extend this treatise into a far greater volume than is convenient for my purpose. Wherefore it shall suffice to have set down so much of their demeanour, and so much as is even enough to cause them to look with somewhat more conscience into their dealings, except they be dull and senseless.

This furthermore is to be noted, that albeit the princes heretofore reigning in this land have erected sundry courts, especially of the chancery at York and Ludlow, for the ease of poor men dwelling in those parts, yet will the poorest (of all men commonly most contentious) refuse to have his cause heard so near home, but endeavoureth rather to his utter undoing to travel up to London, thinking there soonest to prevail against his adversary, though his case be never so doubtful. But in this toy our Welshmen do exceed of all that ever I heard: for you shall here and there have some one odd poor David of them given so much to contention and strife that, without all respect of charges, he will up to London, though he go bare-legged by the way and carry his hosen on his neck (to save their feet from wearing), because he hath no change. When he cometh there also, he will make such importunate begging of his countrymen, and hard shift otherwise, that he will sometimes carry down six or seven writs with him in his purse, wherewith to molest his neighbour, though the greatest quarrel be scarcely worth the fee that he hath paid for any one of them. But enough of this, lest, in revealing the superfluous folly of a few brablers in this behalf, I bring no good-will to myself amongst the wisest of that nation. Certes it is a lamentable case to see furthermore how a number of poor men are daily abused and utterly undone by sundry varlets that go about the country as promoters or brokers between the pettifoggers of the law and the common people, only to kindle and espy coals of contention, whereby the one side may reap commodity and the other spend and be put to travel. But, of all that ever I knew in Essex, Denis and Mainford excelled, till John of Ludlow, alias Mason, came in place, unto whom in comparison they two were but children: for this last in less than three or four years did bring one man (among many elsewhere in other places) almost to extreme misery (if beggary be the uttermost) that before he had the shaving of his beard was valued at two hundred pounds (I speak with the least), and finally, feeling that he had not sufficient wherewith to sustain himself and his family, and also to satisfy that greedy ravenour which still called upon him for new fees, he went to bed, and within four days made an end of his woeful life, even with care and pensiveness. After his death also he so handled his son that there was never sheep shorn in May so near clipped of his fleece present as he was of many to come: so that he was compelled to let away his land, because his cattle and stock were consumed and he no longer able to occupy the ground. But hereof let this suffice, and, instead of these enormities, a table shall follow of the terms containing their beginnings and endings, as I have borrowed them from my friend John Stow, whose study is the only storehouse of antiquities in my time, and he worthy therefore to be had in reputation and honour.