Chronicles (1 of 6): The Description of Britaine

by Raphael Holinshed; William Harrison; John Hooker

Customarie law consisteth of certeine Customarie law. laudable customes vsed in some priuat countrie, 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 Cæsar in his cōmentaries, 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 inheritance 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 amongst themselues, that they were not able to mainteine 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 dispersed amongst their issue males, of one strong there were raised sundrie weake, whereby the originall or generall strength to resist the aduersarie, became infeebled 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 mainteine his priuate estate, and few take care to prouide for publike welfare.

Burrow kind, is where the yoongest is preferred before the eldest, which is the custome of manie countries 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 sometimes frequented generallie ouer all.

Prescription. Prescription is a certeine custome, which hath continued 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 larger 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?

There are also sundrie vsuall courts holden once in euerie quarter of Terme. the yeare, which we commonlie call termes, 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 also they are kept both for spirituall and temporall dealing, 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 wax rich apace, and will be richer if their clients become not the more wiser & 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 another 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 London vnder ten pounds or twentie nobles at the lest. And one being demanded why he made so much of his trauell, answered, that it was but follie for him to go so farre, when he was assured to get more monie by sitting still at home. A friend of mine also had a sute of late of some valure, and to be sure of counsell 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 Deceipt. his matter should be called vpon. 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, increased 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 deceiued 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, then standing vpon the Manie of our lawiers stoope not at small fées. hazard. But inough of these matters, for if I should set downe how little 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 suffice 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.

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 Poore men contentious. those parts, yet will the poorest (of all men commonlie most contentious) refuse to haue his cause heard so néere home, but indeuoureth rather to his vtter vndooing to trauell vp to London, thinking there soonest 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 Dauid of them giuen so much to contention and strife, that without all respect of charges he will vp to London, though he go bare legged by the waie, and carie his hosen on his necke (to saue their feet from wearing) 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 quarrel be scarselie worth the fee 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 Promoters séeke matters to set lawiers on worke withall. wisest of that nation. Certes it is a lamentable case to sée furthermore, how a number of poore men are dailie abused and vtterlie vndoone, by sundrie varlets that go about the countrie, 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 sufficient 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 compelled 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 conteining their beginnings and endings, as I haue borrowed 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 execution of our lawes, being The times of our termes no hinderance to iustice. little aboue one quarter, or not fullie a third part of the yeare, and the appointment 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 conceiued, 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.

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

Hilarie terme beginneth the three and twentith daie of Ianuarie (if it be not sundaie) otherwise the next daie after, and is finished the twelfe of Februarie, it hath foure returnes.

Octabis Hilarij. Quind. Hilarij.

Crastino Purific. Octabis Purific.

¶ Easter terme beginneth seuentéene daies after Easter, endeth foure daies after the Ascension daie, and hath fiue returnes.