Elizabethan England / From 'A Description of England,' by William Harrison

by William Harrison

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 That also which his majesty liketh of is hereby authorised, confirmed, and ever after holden for law, except it be repealed in any like assembly.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

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

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

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

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

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

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

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

A man would imagine that the time of the execution of our laws, being little above one quarter or not fully a third part of the year, and the appointment of the same to be holden in one place only, to wit, near London in Westminster, and finally the great expenses employed upon the same, should be no small cause of the stay and hindrance of the administration of justice in this land: but, as it falleth out, they prove great occasions and the stay of much contention. The reasons of these are soon to be conceived; for as the broken sleeve doth hold the elbow back, and pain of travel cause many to sit at home in quiet, so the shortness of time and fear of delay doth drive those oftentimes to like of peace who otherwise would live at strife and quickly be at odds. Some men desirous of gains would have the terms yet made shorter, that more delay might engender longer suit; other would have the houses made larger and more offices erected wherein to minister the laws. But as the times of the terms are rather too short than too long by one return apiece, so, if there were smaller rooms and fouler ways unto them, they would enforce many to make pause before they did rashly enter into plea. But, sith my purpose is not to make an ample discourse of these things, it shall suffice to deliver the times of the holding of our terms, which ensueth after this manner:—

A Perfect Rule to know the Beginning and Ending of every Term, with their Returns.