Complete Works of Edmund Spenser

by Edmund Spenser

IRENIUS The comon law is, as I before said, of it selfe most rightfull and verie convenient, I suppose, for the kingdom for which it was first devized; for this, I thinke, as yt seemes reasonable, that out of the manners of the people, and abuses of the countrie, for which they were invented, they tooke theire first begynninge, for else they should be most unjust: for no lawes of man, accordinge to the straight rule of right, are just, but as in regard of the evills which they prevent, and the safetie of the common weale which they provide for. As for example, in the true ballancinge of Justice, it is a flatt wrong to punishe the thought or purpose of any, before it be enacted: for true justice punisheth nothing but the evill acte or wycked worde, yet by the lawes of all kingdomes it is a capitall cryme, to devise or purpose the death of the King: the reason is, for that when such a purpose is effected, it should be too late to devise of the punishment therof, and should turne that common-weale to more hurt by suche losse of theire Prince, then suche punishment of the malefactors. And therefore the lawe in that case punishes his thought: for better is a mischief, then an inconvenience. So that jus polliticum, though it be not of it selfe just, yet by applicacon, or rather necessitie, it is made just; and this only respect maketh all lawe just. Nowe then, if these lawes of Ireland be not likewise applied and fitted for that Realme, they are sure verie inconvenient.

  EUDOXUS You reason stronglie; but what unfitness doe you fynde in them for that Realme? shewe us some particulers.

  IRENIUS The common lawe appointeth that all trialls, aswel of crymes as titles and ryghtes, shall be made by verdict of Jurye, chosen out of the honestist and most substancal free-holders: Nowe all the ffree-holders of that Realme are Irishe, which when the cause shall fall betwene an Irishe man and an Englyshe, or betwene the Quene and any ffreeholder of that countrye, they make no more scruple to passe against the Englisheman or the Quene, though it bee to strain theire oaths, then to drinke milke unstrayned. So that before the jury goe togeather, it is all to nothing what theire verdict will be. The tryall thereof have I so often sene, that I dare confidentlie avouche the abuse thereof: Yet is the lawe of it selfe, as I said, good; and the first institucon thereof being given to all Englishemen verie rightfull, but nowe that the Yrishe have stepped in to the rowmes of the Englishe, who are nowe become so hedefull and provident to keepe them forth from thensforth, that they make no scruple of conscience to passe against them, it is good reason that either that corse of the Lawe for trialls be altered, or that other provision for juries be made.

  EUDOXUS In soothe, Irenius: you have discovered a point worth the consideracon. For hereby not onelie the Englishe subject fyndeth no indifferencie in decidinge of his cause, be it never so just; but also the Quene, aswell in all pleas of the crowne, as also for all inquiries of escheate: lands attainted, wardshipps, concealements, and all suche like, is abused, and exceedinglie endamaged.

  IRENIUS You saie verie true; For I dare undertake, that at this daie there are more attainted landes, concealed from her Majestie, then she hath possessions in all Ireland: and that is no smale Inconvenience: for, besides that she looseth so moche land as should turne ther to her greate proffitt, she besides looseth so many good subjectes, which might be assured to her, as those landes would yelde inhabitantes and living unto.

  EUDOXUS But does that people, saie you, make no moer conscience to perjuer them selfes in there verdicts, and to dampne there sowles?

  IRENIUS Not onelie so in there verdictes, but also in all other there dealings, speciallie with the Englishe, they are most willfullie bent: for though they will not seme manifestlye to doe it, yet will some one or other subtile headed fellowe amongest them pick some quirke, or devyse some subtile evasion, whereof the rest will lightlie take hold of, and suffer them selves easilie to be ledd by him to that them selves desired: ffor in the most apparant matter that can be, the least question or dowbt that can be moved, will make stop unto them, and put them quite out of the way. Besides that, of them selves, they are for the most parte, so cautelous and wylie headed, especiallie being men of so smale experience and practize in lawe matters, that you would wonder whence they borrowe suche subtilties and slye shiftes.

  EUDOXUS But mee thinke, this inconvenience might be moche helped in the judges and chief majestrates which have the choosinge and nominatinge of those Jurors, yf they would have care to appoint either most Englishmen, or suche Yrishemen as were of the sowndest disposition: for wee dowbt not but some there bee incorruptible.

  IRENIUS Some there be in dede as you saie; but then woulde the Irishe partie cry out of partialitie, and complayne he hath not Justice, he is not used as a subject, he is not suffered to have the free benefitt of the lawe: And theis outcryes the majestrates there doe moch shune, as they have cause, since they are so reddelie harkened unto here; neither can it be indede, although the Irishe partie would be content to be so compassed, that such englishe freeholders, which are but fewe, and such faithful yrishmen, which are in dede as few, shall alwaies be chosen for trialls: ffor beinge so fewe, they shoulde sone be made wearie of theire freeholdes. And therefore a good care is to be had by all occasions to encrease theire nomber, and to plant more by them. But were it so that the Juries could bee picked out of suche choise men as you desire, there would nevertheles be as bad a corrupcon in the triall: ffor the evidence beinge brought in by the base Irishe people, will be as deceiptfull as the verdictes: for they care muche lesse then the others what they sweare, and sure theire lordes may compell them to saie any thing: ffor my self have heard when one of that base sort, which they call charles, being challenged, and reprooved for his false oathe, have answered confidentlie, that his lord commaunded him, and that it was the least thing he could doe for his lord, to sweare for him: so inconscionable are theis common people, and so litle feeling have they of god, or theire owne sowles good.

  EUDOXUS It is a most miserable case: but what helpe can there be in this? ffor though the manner of the triall shoulde be altered, yet the proofe of every thinge must nedes be by the testimonies of such persons as the parties shall produce: which if they shall corrupt, however can there any light of truthe appeare? what remedy is there for this evill, but to make heavie lawes and penalties against jurors?

  IRENIUS I thinke sure that will do smale good: ffor when a people are inclyned to any vice, or have no towche of conscience, nor sence of theire evill doinge, yt is booteles to thinke to restrayne them by any penalties or feare of punishment; but either the occacon is to be taken awaie, or a more understandinge of the right, or shame of the fault is to be imprinted. For if Lycurgus should have made it deathe for the Lacedemonians to steale, they beinge a people which naturallie delighted in stealth, or if it shoulde be made a capitall cryme for the Fflemminges to be taken in drunkennes, there should have been fewe Lacedemonians soone left, and fewer Fflemminges: so unpossible it is to remove any fault so generall in a people, with terror of lawes or more sharpe restraintes.

  EUDOXUS What meanes may there be then to avoide this inconvenience? for the cause sure semes verie harde.

  IRENIUS Wee are not yet come to that point to devyse remedies for the evills, but onlie have nowe to recompt them; of the which this that I have tolde you is one defect in the common Lawe.

  EUDOXUS Tell us then, I praie you further, have you any more of this sorte in the common Lawe?

  IRENIUS By rehersall of this, I remember also of an other like, which I have often observed in trialls to have wrought greate hurt and hinderance, and that is, the excepcons which the common Lawe alloweth a fellon in his triall:. ffor he may have, as you knowe, xxxvj excepcons peremptorye against the Jurors, of which he shall shewe no cause, and as many as he will of suche, as he can shew cause. By which shifte there beinge, as I have shewed you suche smale store of honest Jurie men, he will either put of his trial, or drive it to such men as perhapps are not of the sowndest sorte, by whose meanes, yf he can acquite him self of the cryme, as he is likelie, then will he plage suche as were brought first to be of his jury,and all suche as made any p
artie against him, and when he comes forth, will make theire cowes and garrons to walke, yf he doe not other mischief to theire persons.

  EUDOXUS This is a slye device, but I thinke might sone be remedied: but wee must leave it a while with the rest: in the meane tyme doe you goe forward with others.

  IRENIUS There is another no lesse inconvenient then this, which is for the triall of accessaries to felony: ffor, by the common Lawe, the accessarie can not be proceeded against till the principall have receyved his triall. Nowe the case often falleth in Ireland that a stealth beinge made by a rebell, or an outlawe, the stolen goodes are conveyed to some husbandman or gente, which hath well to take to, and yet liveth most by the receipt of suche stealthes, where they are found by the owner, and handled: whereuppon the party perhapps is apprehended and committed to gaole, or putt uppon suerties, till the Sessions, at which the owner, preferring a bill of Indictment, proveth sufficiently the stealth to have been committed vppon him by suche an outlawe, and to have ben found in the possession of the prisoner, against whom, nevertheles, no [course] of Lawe can proceede, nor triall can be had, for that the principall thiefe is not to be gotten, notwithstandinge that he likewise, standeth perhapps indicted at once with the receyver, beinge in rebellion or in the woodes, where peradventure he is slayne before he is taken, and so the receivor cleane acquited and discharged of the cryme. By which means the thieves are greatlie encouraged to steale, and theire mainteyners imboldned to receive theire stealthes, knowing howe hardlie they can be brought to any triall of lawe.

  EUDOXUS Trulie this is a greate inconvenience, and a great cause, as you saie, of the maintenance of theeves, knowinge theire receivors alwaies readie; ffor, would there be no receivors, there would be no theeves. But this, me semes might easelie be provided for by some act of Parliament, that the receivor being convicted by good proofes, might receive his triall without the Principall.

  IRENIUS You saie very true, Eudoxus but that is almost impossible to be compassed. And herein also you discover another imperfeccon in the course of the common Lawe, and first ordynance of the Realme; for you knowe that the said Parliament must consist of the peeres, gentlemen, freeholders, and burgesses of that Realme it self. Nowe theis beinge perhappes them selves, or the most parte of them (as maye seeme by theire stif withstandinge of this act) culpable of this cryme, or favorers of theire friendes, which are suche by whom theire kitchens are sometymes amended, will not suffer any suche statute to passe. Yet hathe it oftentymes ben attempted, and in the tyme of Sir John Perott verye earnestlie, I remember, labored, but by no meanes could be effected: And not onelie this, but many other like, which are as nedeful for the reformacon of that Realme.

  EUDOXUS This also is surelie a great defect; but wee maye not talke, you saie, of the redressing of this, untyll our seconde parte come, which is purposelye appointed thereunto. Therefore procede to the recountinge of moe suche evilles, yf at leaste you have any more.

  IRENIUS There also is a greate inconvenience, which has wrought greate dammadge to her Majestie, and to that Common wealth, through close and collorable conveyances of the landes and goodes of Traytors, fellons, and fugitives: as, when one of them mindeth to goe into rebellyon: he will convey away all his landes and Lordships to foeffes in trust, wherby he reserveth to himselfe but a state for term of lief which beinge determined either by the sword or by the haulter, theire Lande streighte commeth to the heire, and the queene is defrauded of the intent of the Lawe, which layed that grivyous punishment upon Traytors to forfeite all theire landes to the Prince, to the ende that men might be the rather terrefied from commyttinge treasons: ffor many which would little esteeme theire owne lyves, yet for remorse of theire wyves and children, shoulde bee withheld from that hayneous cryme. This appeared playnelie in the late Earle of Desmond: ffor before his breakinge forth into open rebellyon he hade conveyed secretelie all his landes to feoffes of trust, in hope to have cutt of her Majestie from the escheate of his landes.

  EUDOXUS Yea, but that was well ynoughe avoyded; ffor the acte of Parliament which gave all his landes to the queene did, (as I have hearde,) cutt of and frustrate all suche conveyaunces, as had any tyme, by the space of xii yeres before his rebellyon, bene made: within the Compasse whereof, that fraudulent feoffment, and many other the like of his accomplisses and fellow-Traytors were contayned.

  IRENIUS Very true, but how hardlie that acte of Parliament was wrounge out of them, I cann wytnes: and were yt to be compassed againe, I dare undertake it would never be compassed. But were yt soe that such actes might easilie be brought to passe against Traytors and fellons, yet were yt not an endless trouble, that no Traytor nor fellon should be attaynted, but a Parliament must be called for bringinge his landes to the queene, which the Common Lawe geveth her.

  EUDOXUS Then this is no faulte of the Common Lawe, but of the persons which worke this fraude to her Majestie.

  IRENIUS Yes, mary, for the Common Lawe hath left them this benefitt, whereof they make advantage, and wrest yt to theire bad purposes. Soe as they are thereby the bolder to enter into evill accons, knowinge that yf the worste befall them, they shall loose nothinge but themselves: whereof they seme surely verye careles, as Caesar in his Commentaryes sayth, are very fearles of death.

  EUDOXUS But what meane you of fugitives herein? or how doth this concerne them?

  IRENIUS Yes, very greatly: for yee shall understand that there be many ill disposed and undutyfull persons of that Realme, like as in this pointe there are allso in the Realme of England, too many, which beinge men of good inheritance, are for the dislike of religion, or danger of the law into which they are run, or discontent of the present government, fled beyond the seas, where they lyve under Princes that are her Majesties professed Enemies, and converse and are confederate with other Traytors and fugytives which are there abidinge. The which nevertheles have the benefitt and profittes of their landes here, by pretence of suche cullorable conveyances thereof, formerlie made by them to theire pryvie frendes here in trust, whoe secretly sende over unto them the saide revenewes, wherwith they are there maintayned and enabled against her Majestie.

  EUDOXUS I doe not thinke that there be any such fugitives which are releived by the profitt of theire lands in England: ffor there is a straighter order taken. And yf there bee any such in Ireland, yt were good yt were likewise looked unto: for this evil may easelie be remedied: but proceede.

  IRENIUS Yt is also inconvenient in the Realme of Ireland, that the wardes and marriadges of gentlemens Children should be in the disposicon of any of these Irish Lords, as nowe they are, by reason that theire landes are helde by knightes service of those Lords, as now they are. By which meanes yt cometh to passe, that those said gentlemens children, beinge thus in the warde of those Lords, are not only thereby brought up lewdlie and Irishe like, but allso for ever after soe bounden to theire services, as that they will runne with them into any disloyall accon.

  EUDOXUS This grievance, Irenaeus, is allso complayned of in Ingland; but how can yt bee remedied? since the service must followe the tenure of the landes, and the landes were geven awaye by the Kinges of England to those Lords, when they first conquered that Realme: and to say the truth, this allso would be some prejudice to the Prince in her Wardship.

  IRENIUS I doe not mean this by the Princes warde, but by suche as fall into the handes of the Irish Lordes: for I could wishe and this I woulde enforce, that all those wardships were in the Princes disposicon, for then yt might be hooped that she, for the universall reformacon of that realme, woulde take better order for the brininge up of those wardships in good nourture, and not suffer them to come into so bad handes. And thoughe these thinges be alreadie passed awaye by her progenitors former graunts unto those said Lords, yet I coulde find a way to remedie a greate paret thereof, as hereafter, when fytt time serveth, shall appeare. And since wee are entred into speache of such grauntes of former princes to sondrie persons of that Realme of Ireland, I will mencon unto you some other, of like nature to this, and of lik
e inconvenyence, by which the Kinges of England passed unto them a greate parte of theire prerogatyves, which though then yt were well intended, and perhaps well deserved of them which receaved the same, yet nowe such a gapp of mischiefe lieth open thereby, that I could wish it weare stopped. Of this sorte are the grauntes of the Countyes Palletynes in Ireland, which though at first were graunted upon good consideracon when they were first conquered, for that those lands lay then as a very border to the wylde Irish, subject to contynewall invasion, soe as yt was needeful to geve them greate privileges to the defense of the inhabitants therof; yet now that it is no more a border, nor frontiered with enemies, why should such pryviledges be any more contynewed?

  EUDOXUS I would gladlie knowe what you call a county Pallentyne, and whence yt is so called.

  IRENIUS It was as I suppose first named Pallatyne of a Pale, as yt were a pale and defence to their innere landes, soe as now yt is called the English Pale, and therof allso is a Palsgrave named, that is an Earle Palentyne. Others thincke of the Latyne, Palare, that is, to foraige or outrune, because that marchers and borderers use commonly soe to doe. So as to have a County Pallentyne is in effecte but to have a priviledge to spoile the Enemyes borders adjoyninge. And surely soe yt is used at this day, as a priviledged place of spoiles and stealthes; for the County of Tipperarie, which is nowe the only County Pallentyne in Ireland, is by abuse of some bad ones, made a receptacle to rob the rest of the Countryes about yt. By meanes of whose priviledges none will follow theire stealthes, soe as yt, beinge scytuate in the very [lap] of all the land, is made nowe a border, which how inconvenient yt is, let every man judge. And though that right noble man, that is the lord of that libertye, doe payne him selfe all that he may to yeilde equall Justice unto all, yet cann there not but greate abuses lurke in soe inward and absolute a priviledginge, consideracon whereof is to be respected carefully, for the next succession. And much like unto this graunte there are also other priviledges graunted unto most of the Corporacons there; that they shal not be bounde to any other goverment then theire owne; that they shall not be charged with any garrisons; that they shall not be travaelled forth of theire owne franchises; that they may buye and sell with theves and Rebells; that all amercements and fynes which shalbe ymposed upon them shall come unto themselves. All which, though att the tyme of theire first grante they were tollerable, and perhapes reasonable, yet nowe are most unresonable and inconvenyent. But all these will easilie be cutt of with the superior power of her Majestys prerogatyve, against which her owne grauntes are not to be pleaded nor enforced.