men Trustees to the whole Kingdom and Neighbours to the Fact or Party or both To which also there must be a legal proof by lawful Witnesses or else the Charge will not suffice And in such Indictments from the Commons the Lords are the Tryers and the King may seem as the Iudg but in other Courts also the Judgment goeth of course upon the Verdict and must be entred per Curiam as adjudged by the Court although there be but one Judge or tho' his Mouth pronounce not the Sentence But we are not yet come to debate the King's Consent to the Lords Judgment an Indictment from the Commons It is also to me very considerable how the House of Commons could or ever did Indict I cannot deny them to have been a Court and a Court of Record although some have seemed to question it and their Records are not so ancient as some others But I have not fully understood how they ever did make or receive a Formal Legal Indictment when as they did not give a single Oath much less Empannel a Iury or Enquest Yet some there be that without a Writt or any written Commission did and might do this Virtute Officii But they be known chosen sworn Officers of the Kingdom for such Purposes as the Peeples Bayliffs Coroners Sheriffs Escheators and some Officers about the Forest who by the Common Law did Summon and Empannel Juries But so did not the House of Commons How then did they Indict Of all Crimes committed in the House they are and were so much the sole Iudges that they seldom use to complain much less to Indict any other And for any thing done abroad I hope they do not use to take Rumours and Reports though from their own Members to be sufficient for or equivalent to a legal Indictment on Oath Seeing their scarce is or can be any Case so notorious but it may be pleaded unto by somewhat of Law or Necessity And although I should yield the Commons to be the Masters of the Law in making it yet they pleased to allow others to be Iudges in their Laws And if they reassume this also yet it may be more easie to judge of some Law than of any Fact at least as it may be cloathed so as a curious search or Enquest may be requisite to lay it clear and naked Neither can I see how it may be necessary to proceed against any by force or illegal Process when it is easie as well as just to go rightly as to do right For who can imagine a Case so dark and intricate but it may be contrived so that particular men may be Accusers and others Witnesses with a clear and real distinction between Indictors Tryers and Iudges most of all in Cases notorious and evident For in such there may be less fear of the Iuries Verdict against Evidence or of the Iudges Sentence against the Verdict Or if this should happen in a Tryal is there not a most heavy doom appointed by Law for all Iurors that forswear themselves and goe against their Evidence Is there not a clear way of Relief by Writ of Attaint Is it not worse than Death to forfeit all Estate and be thrown into Prison while both Wife and Children must be turned out of Doors and All For his House must be pulled down his Ground be plowed up and his Trees rooted out with loss of Franchise and with a perpetual Brand of Villany This is the Common Law for a perjured Iuror and that also in Petty Cases how much more might it be just in Case of Life and Death And for Corrupt Iudges our Law is very severe altho' we have much lost the Custom of the Grand Eyres in this also King Alfred be long since dead who hanged 30 or 40 more unjust Judges than Cambyses flead And for that the Mirror may be a good Comment on some Passages in Alfred's Life by Asser And if it be true that Horn lived to the end of K. Edward it is much wonder that on such occasion he did not also mention some of those Judges by him so punished when there was scarce any left but good Iohn of Mettingham and Elias of Bechingham And of this the Dissertations of Fleta may be added to all before as that of Sir William Thorp and the Great Judg in the third Part of Institutes about corrupt Iudges and the Iudge's Oath It is very considerable how curious the Iews were in Creating or rather Ordaining of Judges For indeed the Phrase of Ordination seemed to be first raised from Them For which I have little to add to Mr. Selden on the Eutychian or Alexandrian Antiquities as old as St. Mark the Evangelist Nor can it be denied but the Jewish Judges and Magistrates had a very good Right and so used as we find in the Books of Moses and the Kings and Tirshatha's to Read and Expound the Law Moral as well as Iudicial Nay in this they seemed to have some advantage of the Priests or Levites that had work enough most times in that which was but Ceremonial This may Expound those Pieces of Scripture Old and New where we find some explaining Scripture being neither Priests nor of the Tribe of Levi. And the Iews Punishments of evil Judges are severe and most remarkable nay where all others were again restored to their Offices after Corporal Punishment their Lord Chief Iustice or President of their Sanhedrim or any Chief Iustice could never be restored again after such punishment no not to be as one of his inferour Colleagues So just he ought to be and circumspect by daily experience added to his own wisdom Our Laws are so just and so good in themselves that there could not be be so much cause of complaints in all our Gates for such were the Iews Courts of Iustice if our Judges were such as they should and might be And yet I cannot deny but that there be very great abuses among the Lawyers and Attorneys or Solicitors but if the Judges were as just and wise as they may be inferiour Officers would soon amend or comply for Love or Fear so much as would prevent Complaints and many of their Causes But it is the work of a God and not of a Man to reform abuses in all Courts of Justice Hercules did never cleanse so great so foul a Stable or a Stall yet in this also a wise and just Parliament will do much and will need none of my help or advice How tender all should Delegates be in making Delegates But in nothing should they be more tender or more circumspect then in this of making Judges For in these of all Delegates our law is most scrupulous Before the Statute of Merton those that held by suit Service were bound to appear in Person because the Suitors were Judges in causes not their own but by that Statute they had power given to make Attorneys but it was only ad Sectas faciendas to make or follow
full and clear Parliament We need not suspect or doubt it for in those very times there were such Parliaments and such degrees Nay Caesar himself found such degrees among the Britains a King and Druyds which were as Bishops and Archbishops as we may clear anon Dukes and Nobles besides the Commons So civil was our British Ancestors Of whom much more ere long And for the very first times of Christian Religion which was much higher than Austin the Father who might have been great Grandfather to Austin the Monk King Alfred's own Laws acknowledge that in this Island the Laws were then made by a Common Council of Bishops and other Wise men or elder men of the Wytan Old Bede seemeth plain enough for this in several places Servabant Reges Sacerdotes Privati Were the Commons before the Lords Optimates suum quique Ordinem And of the Saxons called in by Common Council Initum est Concilium quid agendum c. placuitque omnibus cum suo Rege Vortigorno ut Saxonum gentem in auxilium vocarent And of Ethelbert King of all the South to the River Humber Among other good works saith he quae consulendo conferebat etiam decreta Iudiciorum juxta exempla Romanorum Concilio Sapientiunt constituit And among other Laws of his in the same Bede that is one in special for Priviledge Ecclesiae Episcopi Reliquorum ordinum That this might also extend to the great Priviledge of Parliaments I could the rather believe from the Laws of the said King Ethelbert yet to be found in the old book of Rochester Textus Roffensis of which Sir Henry Spelman unto whom we owe so much for all Antiquities Where after provision for the things of God and the Church to which St. Edward's Laws allude the next Act is for Priviledge of Parliament it seems being for the punishing and sore fining of those that should do any damage Gif Kyning his Leode to him gehateth c. And in the old Chronicle of Canterbury we read of this King Ethelbert being at Canterbury with his Queen and Son and the Archbishop Austin Caeterisque Optimatibus convocato ibidem Communi Concilio tam Cleri quà m Populi With divers other proofs for Parliaments in Charters to that Church in print And Spot deserves as much One thing I must not omit that Bede observing how Religion was preached both to the King and to the Counts omnibus Comitibus saith there was a License granted for publick Preaching but when the King and divers great men were converted and baptized yet there was no force used to compel others to be of that Religion because he saith they were taught that Christs service must be voluntary and not forced But the Mirrour telleth us the King was bound to compel men to Salvation O happy men or unhappy King But the Britains would not be forced from their Rites by Austin the Monk Absque suae gentis imprimis Senatorum suffragio as a learned man translates King Alfred's Saxon Bede Which is also very clear in several places for setling of Christian Religion when it was freely chosen with destruction of Pagan Idolatry with Lent and other things confirmed by divers Acts of Parliament in time of Ercombert and King Edwin Mid his Witum mid his Ealdormanum So is the old Book of Peterburgh for a Parliament or Heatfield With which we may compare somewhat in Ingulph and more in Bede Ethelward and Huntingdon about the Parliaments which received and consirmed the General Councils and that which established the Division of Parishes and Patronage of Churches Of which Stow and the Antiquities of Canterbury but especially a Manuscript in Camdridge cited by Mr. Wheelock on the fourth or fifth of Bede I should not digress to Sigesberts founding the Vniversity of Cambridge had not King Alfred himself in this added good Notes to Bede By which we may see whence he learned what so many say he did to Oxford the younger Sister For which Polydore is plain enough besides so many better elder Authors It is also considerable that King Alfred calleth Cambridge or Grantacestre a City which Bede would make a Civitatula How little it might then be made by the Danes or others I know not But in old Nennius of the British Cities I find Cair Granth next before Cair Londen And Sir Simon d' Ewes affirmeth it to be ranked before London in Gildas Albarius and an old Saxon Anonymus besides that of the old but not the oldest book of Doomsday Nor must I omit the Records of Richard the First for the Customs of the City of Cambridge found by a Jury in an Assize of Darrein Presentment for the Church of St. Peters in Cambridge Of which the great Judge in his Reports or Commentaries To which I might adde what the Saxon Chronology speaketh of Grante Briege at the year 875 and 921 where we also find an ancient Military Sacrament or great Oath of Fealty more to be marked than may seem at first view Come we to the Saxon Laws extant in print They begin with King Ina whom some will have to be a Britain But in the Confessors Acts he is stiled Optimus Rex Anglorum qui electus fuit in Regem per Angelum qui primum obtinuit Monarchum Totius Regni hujus post adventum Angliorum And that himself and others of his People matched with the Britains But per Communae Concilium assensum omnium Episcoporum Principum Comitum omnium Sapientum Seniorum Populorum totius Regni Not onely a clear proof for Parliaments in King Ina's time but a good Comment on his Laws in print Providing about Matches Dowries and Women's Thirds and all by Parliament as the Proem it self expresses beside King Edward's Laws And for the Saxon Militia a Phrase used by Bede himself Nam egressi contra Gevissorum gentem omnes pariter cum suà Militia corruerunt King Ina's Laws afford us divers Acts of Parliament providing against Thieves Riots Routs and all unlawful Assemblies in several degrees and branches As also for Officers of the Militia to be ready on a great Fine to march upon all just occasions With which we may compare Mr. Lambert's Custos Paganus Sithecundman which some would have to be the Father to our Side-men See Whithred's Military Dooms Egbert is by all esteemed a great if not the first Monarch of the Saxons a great Warriour and a Conquerour But yet he neither made or managed the Militia without a great Common Council or Parliament For which besides all others we have a clear proof in the old Abbot of Croyland to which there was a great Charter confirmed Coram Pontificibus Proceribus Majoribus totius Angliae which were all together at London consulting how to provide against the Danish Pirates Pro Concilio capiendo contra Danicos Piratas c. That also Majores in this place might denote some lower than Earls or Lords may not onely be gathered from
the Subscriptions to that Charter but from Bede or other old Authors that use the Phrase Majores of such Officers or Magistrates as Mayors in Cities now seem to be Of which I might give divers Examples It is worth observing how in these Danish storms all Historians make the Counts or great Shireeves to be Generals or Commanders of the Militia And of these I know none more famous than Dorsetshire Reeve Ethelhem in the great Battel of Hampton or in that about Port of which so many write at the Danes first landing thereabouts Danigeld is scarce so ancient Yet this also was granted for provision against Danish Pirates as St. Edward's Laws affirm Who first remitted this Tax but it came up again about forty years after it had been diverted from its first institution and paid as Tribute to the Danes But this was also by Parliament Of which Ingulph and Hoveden with all about Etheldred and Edward I must not digress to the Parliament of Winchester in King Egbert's Sons in which Tenths of Lands as other Tythes were confirmed for Church-Glebe Of which the Saxon Chronologie with Ethelward Hoveden the Abbot of Croyland the Monk of Malmsbury and Matthew of Westminster with divers others before Polydore To which we may adde King Edgar's Oration to St. Dunstan which is known enough As also the Wednesday Masses one for the King and the other pro Ducibus c. Consentientibus The Charter being subscribed by the King Archbishops Dukes Earls and Procerum totius Terrae Aliorumque fidelium infinita Multitudine I should not omit the Parliaments confirming Rome-Scot much mistaken by divers It was granted by King Ina then by Offa and again by King Ethelwoolf not to the Pope as it is generally thought but to the English School or Alms-house for Pilgrims at Rome Yet it was called Peter-pence because fixed on Peters-day A famous day in our Law as may appear by the second of Westminster and other Parliaments But it might be called Peter-pence from King Ina whom at his Baptism in Rome the Pope name Peter as the Saxon Chronicles others Or there might be as much reason for Peter-pence as there was for Peterburg which was Medhamsted but Vows might be performed or absolved here as well as at St. Peter's Threshold in Rome And hence the name of Peterburg But of Peter-pence before Polydore we read in much older Historians especially the Author of King Offa's Life now printed with Matthew Paris Beside the Laws of King Edgar Canutus Edmund and the Confessor where it is called Eleemosynae Regis But in the Saxon Chronology 't is Kynninges and West Seaxena Almessan And in King Alfred's Life by Asser Menevensis Eleemosynae Regis and Anglo-Saxonum Being confirmed by common Assent or Parliament I must omit the Parliament at Kingsbury where among other divers matters a great Charter was confirmed to Crowland Vnanimi Consensu totius Concilii pro Regni Negotiis Congregati Subscribed by the King of Mercia Archbishops Bishops Earls c. And among others by Offâ—at who was Pincerna Regis Ethelwoolphi Legatus Ipsius filiorum Nomine Illorum Omnium West-Saxonum as we are told by the old Abbot who knew it well I might pass over King Alfred's Parliaments so the famous in all Historians and Lawyers But in none I know clearer than in the old Mirrour Of which before for Alfred and his Parliaments twice every year in London With which we may compare one passage in the Confessors Laws touching this great and old City But of this hereafter This was the learned King who perused all the old Trojan Grecian British Molmutian Mercian Danish and Saxon Laws especially those of Ina Offa and King Ethelbert Cum consulto Sapientum partim innovanda curavit as himself speaketh And his Laws were established by Parliaments by his Witan or Witena Atque eis omnibus placuit edici eorum Observatione As learned Lambert translateth the Saxon. But I may not omit King Alfred's Doomsday-book made by such Common Council the great Roll of Winchester which was again renewed by the Confessor and then again by King William the First and then also called the Roll of Winchester and Doomsday as before Of which old Ingulph with Natura Brevium Yet it seemeth that before King Alfred's time there was such a Doom-book made by Ethelwoolf at the time of the Church-Glebe of which Book the Saxon Chronology at the year 854. But this might rather be a land-Land-book whence the Phrase of Booeland See King Alfred's Will annexed to Asser. But we also find an ancient doom-Doom-book for their Laws and matters Iudicial Of which doom-Doom-book we read in several places of the Laws of Edward the Senior strictly charging all the Judges and Magistrates to be just and equitable Nec quicquam formident quin jus Communae audacter libereque dicant according to the Doom-book And again in Edgar's Laws we find the doom-Doom-book for Tythes and the famous Kyricseat These succeeded King Alfred But long before his time among the Dooms of Withred made about the year 697. by the King and Bishops Cum caeteris Ordinibus and Military-men or Milites at Berghamsted a Fine is set upon a Commander found in Adultery Spretta Sententia Regis Episcopi Boecâ—-Doom I could believe King Ethelbert's Parliaments were Authors to this doom-Doom-book Of which the Roll of Rochester tha Doomas dhe Athelbirth Cyning with Rihtra Dooma in the fore-cited place of Ethelbert in the Saxon Bede of King Alfred How severe his Dooms were to the Counts old Shireeves and Iudges we find in Asser more in Horn and his Kirk-dooms in his Laws which do also speak of Kiric-Ealdor a Church-Elder But again to the Saxon Militia In Alfred's time there was a League made with the Danes Then the Title was Foedus quod Aluredus Guthrunus Regis ferierunt ex Sapientum Anglorum consulto confirmed by Act of Parliament And the Saxon Chronologer addeth That the Dane swore to the Peace and promised to be baptized as he also was and King Alfred was his Godfather naming him Ethelstane Some adde a Daughter of King Alfred's for his Wife which may be worth enquiring more than now may seem The Articles of this League were again renewed and enlarged by Parliament in Edward the Elder A Sapientibus recitata sapius atque ad Communem Regni Vtilitatem Aucta atque Amplificata In the Preface to those Statutes In this Edward's Reign there was an Insurrection and Ethelwald seized on Winborn c. whose Charge and Crimes was this That he did such an Act without permission of the King and Parliament but an tdes Kynings leafe ac his Witena So the Saxon. And Malmsbury addeth That à Proceribus in Exilium trusus Piratus adduxerat But the King summons a Parliament at Exon and there Mid his Witan consulted how the Kingdoms Peace might be restored and preserved Orabat vehementer obtestabatur such was his Mean to the Parliament hoc unum Curent ne
K. William as I should before upon the Oaths of chosen men from every County sworn as strictly as I remember any to have ever been with additions also of some emendations added by King William ad Utilitatem Anglorum These Laws he saith were compiled or conditae by the said great Glanvil who in Henry the 2d he stileth summum Iusticiarium totius Angliae And for this Kings confirmation of the good Laws of H. the first we need no more than what we find in him and all other Historians of the grand contest upon that occasion between the King Becket Son to a Saracen or Syrian Woman yet a Citizen of London and his Fathers Name was Gilbert Favourite at first he was to Theobald of whom before by him commended so that he became Lord Chancellor But at his Patrons Death being chosen to succeed in Canterbury he resignneth up the Seal at taking orders and in this both Wendover and Matthew Paris add to Hoveden who in Becket is the largest Polydore agreeth that his former perferment was to be Arch-Deacon to that Sea to which he makes the Office of a Legate to be then entailed ever since Lord Theobald did fetch his Pall from Rome But the great quarrel was about the confirmation of K. Hen. Laws of which before They touched all the Clergy So that once reading of them was enough to make the Pope condemn and Ban them all In a great Councel or Parliament the King did ask they say petitioned the Church that all would agree to keep the Laws of his Grandfather Henry the first Becket with some reluctance did consent without his Salvo But again repents in Parliament at Clarendon 't is clear as well for Commons as for others Congregato Clero Populo Regni apud Clarendun And again the Lords beseech the Prelate that he would vouchsafe to come and say before the King and Commons coram populo diceret that he would receive and admit those Laws He doth consent and comes into the House and frames his lips into a Content the King is glad and bids the Lords retire and bring those Laws from the Records that all might be perused and agreed Somewhat more he meant for when the Lords returned with those Rolls the motion was that all should set their hands or Seals in witness of agreement But at this The Prelate startles and recoyles again and riseth high or foul in Language So withdraws in greatest discontent Ere long we find him out again at least he would be out For now he sueth for a Pass to France he meant the Pope I must not here omit the course the King did take to stop him One there was that did complain he had been long in suit in some inferior Court of Becket yet he could not get his right and therefore was at length enforced to some other course and Court. For which his way was first to falsifie the Prelates Court by Oath according to the Custom of the Kingdom and of that we spake before in Writs of Right and Tolts or Pone's to remove them to some higher Court. This seemed but a petty Case that happen'd every day so that the usual Writ hath such a clause that if the Baron did not then the Sheriff should And if the Sheriff failed in the County Court then Bench must help But this was now enough to give a pause and check to that great Prelate He must stay and plead it out at length he finds the formal Oath to falsifie his Court was made upon Paper or a Service Book whereas the Law required that the Oath should be upon the Holy Gospels This would not suffice but Parliament at least the Barons and the Tenants en Chief were such did put the Prelate into Misericordia He doth struggle and attempt a Writ of Errour or the like Iudicium illud falsificare but he must submit and is amerced at 500 l. he cannot bear it fulleth 〈◊〉 but soon receives another summons For he shall have load enough and now must give account of all his former Bailywick He seeks delay and would be Essoyned de Malo lecti and instead of Knights two Earles are sent to view him whom they find in Bed but give him respite only till the morrow This bringeth a Case of Law to mind Essoyned of sickness cannot Rise without a License If the Knights that come to view him find him not or out of Bed it is default Of which in Bracton Fleta Hengham And his Learned Commentator addeth a pretty Case in Rich. the First The Abbot of Crowland sueth the Prior of Spalding for entring upon his Marsh. The Prior Pleads he entred as upon his own Ese-simple and doth offer 40 Marks for grand Assise and so the Mise is joyned and the Right doth lie at stake The Abbot is Essoyn'd de malolecti and the Writ goes but to the Knights But while one was coming to view him he doth rise and cometh towards the Court so the Knights Certificate is The Abbot was not in Bed On long debate the judgement was that upon default the Abbot yet in Possession must submit to yeild the seisin to the Prior whom he sued See the Statute of Marlbridge and the 2d of Westminster cap. 17. But Becket had Law enough to make him Rise and come to the Court in fear and discontent but his Right hand is so fastned to his Cross that it could hardly be forced from him who did struggle for it But his sorest pressure is an heavy Action of Account for all he had received as Lord Chancellor He pleads Discharge And that at his Election Henry Son to him that had such interest in the Kingdom cui Regnum adjuratum fuit and all the Barons of the Exchequer and Richard de Lucy Iusticiarius Angliae did declare him free quietum Deo Ecclesiae ab omni exactione seculari c. But his conclusion Ideo amplius Nolo inde placitare cost him dear For when the King had this he knew his way and said to the Parliament or Baronibus suit do me speedy Justice on this man Cito facite mihi Iudicium de illo qui Homo meus ligeus est stare Iuri in Curia mea recusat So they did retire and being alone without the King exeuntes Iudicaverunt And they did adjudge him to Prison But he escaped before his Commitment although some that saw him going cryed Traytor stay and take thy Doom By stealth he got to Sandwich thence to France by Flanders where he found the Pope I do not know that he talked much of refusing to make his account But his grand complaint was that he was pressed to consent to such injurious Laws as those which he brought to the Pope of King Henry the First Which were soon damned notwithstanding our Kings Embassadors But Writs were sent abroad to the Sheriffs and Iustices for seizing all belonging to the Arch-Bishop for attaching Arms that did appeal to Rome or
I am now grown wiser and do now see I may absolve my self from that which I would not have taken but by force or fraud But can the World this vain and frail and foolish World command controll and over-awe my Soul to take an Oath the Oath of God to what I think unjust It may be so for I am Man and frail with those that are the weakest for He knoweth my foolishness but it should not be and when it is I must be very tender lest I adde more Sin to Sin as bad or worse to that which is too Bad already For by breaking such an Oath I may do worse much worse than first I did in making it except I Swore to sin and then I may not keep my Oath And I believe the Iews might not have pleaded Force or over-awing Arguments in Swearing Homage to the King of Babylon and yet 't is known how God did charge and chasten that said Perjury nor is it altogether inconsiderable that good Lot's or at least the men of Sodom's freeing themselves from Chedorlaomer is stiled by God himself plain downright Rebellion Yet there was another King of Sodom and Chederlaomer seemeth but a kind of Tyrant that had but little Right but Conquest and his Might The Catholicks may seem too free in dispensing with Oaths to Protestant Kings but some there are with them Sacred Persons And because I now dispute ad Hominem I shall touch on that in which we know them most Religious Their solemn Obligation to the Pope which yet is such they will not deny as doth not secure or free him from being Iudged or Coerced in cases of Distraction Natural in Raving or Moral in Raging so that danger be apparent to those about him or in some Spiritual Frenzie of notorious Heresie Convict the Chair in Conclave not the Person is exempt or much suspected while himself refuseth Legal Tryal by a Council or the like The Case is argued in Occhams Dialogues with others Our Oath of Fealty comes next upon the Test although I might interpose as a Parallel to the Pope the Iewish High Priest a very Sacred Person and the Lords Anointed also but yet such as must still submit to the Sentence of the Great Sanhedrin nay and that for his Life also if they so adjudged him For which of the Sanhedrins Power over the Jewish King in Criminals and in War except only what God had commanded against Amaleck or the seven Nations I might cite several clear passages from the Talmud and those that expound it long before Cochius or Sanhedrin or Schickards Ius Regium Our Land seemeth to Mourn because of Oaths but I must only touch the civil Part or what is Legal and our Law seemeth Deficient in this of Oaths for there is scarcely any Law since the Star Chamber to punish Perjury but only where it is before a Court of Justice and there also the Punishment of Witnesses is very light and exceeding short of Attaint on Jurors by the Common Law Our Customs seem to overgoe our Laws in much of Oaths They were but Attestations though most Solemn in the Name and Presence of God As the Lord doth Live But they are now brought to Imprecations or a kind of Curse So help me God and the Contents of this good Book Yet so it was of old at Combat on Appeal the Appellè did first devote himself Again some force a Kissing of a Book the Law requireth but a Sight and Touch. For ought I find the Saxon Jurors were Sacra Tenentes In the first Norman times it was Sacris Tactis and in later writs Evangelijs Tactis Nay the Priests hand was upon his Breast in Matthew Paris not upon the Book and the Villain seemeth forbidden to touch the Book The Statute saith he shall hold his Hands over it but the Freeman upon it and from this Touch with the Body such an Oath was called Corporal The Iews and eldest Christians in their Swearing Blessing Praying lifted up the Hand and sometimes Bowed the Head or Knee for In his Name shall all Knees bow seemeth but Parallel to that of the Psalmist In thy Name will I lift up my Hand and the Grecian or Trojan Princes lifted up their Scepters in Swearing but others held Earth and Water in Allusion perhaps to the sacred Styx Most if not all publick Officers were tyed to their Dutyes by some Oaths but they were made by Parliament in all Ages This being a Pillar in our Laws that none can make alter or impose an Oath without an Act of Parliament or Custom by the Common Law 'T is strange how much in all we degenerate from our good Ancestors So that with us to break ones Oath even in the greatest Office is but a kind of Petty Aggravation as they call it rather than a Crime because such Oaths be now accounted but meer Forms or Ceremonious Shaddows But it was not so ab initio and among other Precedents I find the old Mirrour speaking of a Chancellour of England charged with Perjury for taking a small Summe of Money half a Mark for Sealing of a Writ which was against his Oath being neither to Deny Delay or Sell Justice or Remedial Writs Yet Six Pence was allowed to the King for Sealing of a Writ How great a Crime they did account such Perjury I need not say to Lawyers or to any that have read the Saxon Parliaments But of all our Oaths those seemed to be most content to be counted Formal That they were imposed on meer Children of a dozen Years old how many such we have or had in great Schools or Universities may be known and felt too much I fear And the Oath of Allegiance was twelve Years old and so pressed at the Leets or Turns but did they mean we should Observe it but as Children not as Men or Christians It is true the Saxons also had a twelve-Year-old Oath but against Theft and how the Laws of Henry the first did Annul the Oaths of Children was observed and the fifty ninth Chapter of those Laws forbiddeth any to Plead or to be Pleaded in Iudicio till the Age of fifteen It was also a Maxim in our Law Books that Minors could not Essoyn because they could not Swear and that Homage might be done in Nonage but not Fealty For although Homage was the more Honourable done upon the Knee yet Fealty was the more Sacred being ever done by Oath and from hence is the usual Phrase in all Lawyers and Historians to Do Homage but to Swear Fealty Must our Allegiance only run before our Reason or Discretion which yet was our great Fealty for it differed little from Homage with the Oath of Fealty to Mean Lords but in the Salvo which I touched before and must again being one good help to explain our Allegiance I shall acknowledge that Allegiance ought to have been kept by all Subjects although they never took that Oath which it may be many did not especially
Iews in the Laws of the Confessor Some Kingdoms are in Fee to others and must do Homage Swearing Fealty So Scotland unto England so was also our English King but not the Crown or State which hath oft in Parliament been adjudged and declared Imperial Independent when himself did Homage unto France And yet I do not find our English King did ever much Scruple at his waging War with all France and the French King also but did often fight in Person against his Person and he might do so by Law if the King of France did Injure and Oppress him against Law That I say nothing of the Personal Challenges by Rich. the first Edw. the third and Rich. the second Or of King Iohns being cited or Condemned by France for Murther in that Kingdom This might yet be enlarged and further cleared from the good Laws of K. Henry the first which are so strict for Allegiance and due Fealty to every Lord that they seem almost to forget our old English Clemency and yet they speak enough of a Vassals impleading c. his Lord for which divers Chapters from the 40 th to the end are very considerable And the 55 th Chapter limiteth all Homage and Fealty per honestum utile that which is honest and profitable and as Honestum there respecteth God and the common Faith Deum fidem Catholicam so must Utile respect the Kingdom and the Common good it being usual for those times to express the Common Good by such a Phrase of Utile So the Laws of St. Edward for Foromotes Heretokes ad Honorem Coronae ad Utilitatem Regni So King Williams Additions were granted and Confirmed ad utilitatem Anglorum So the Parliament at Merton was to treat de communi utilitate Regni which may be considered in the Writs of those times and the great Charters granted à tout la commune Dengleterre as Articuli super Chartas And the first of Westminster pur le common profit de st esglise de Realm and the Confirmations of the Charters in Edw. the first forbidding all Impositions c. but by Common assent of all the Realm pur le common Profit de ceo which must be determined by Commune Assent and no otherwise So Ethelreds Law Efferatur Concilium quod Populo Utilissimum And Canutes quae ad Reipublicae Utilitatem Commune commodum which there may Paraphrase Regalitas of which before And however the late Oaths of Allegiance are if we consider the old Oaths both in the Saxon and first Norman times we shall find them to respect the Kingdom and its common Good and Profit as well as the Kings Prerogative or private Profit to the Crown By Bracton with others we are led to the Laws of the Confessor for our great Allegiance But in those Laws the Oath is to defend the Kingdom with the King and that by such an Oath we should all be sicut conjurati Fratres ad defendendum Regnum contra Alienigenas contra Inimicos unâ cum Domino Rege c. That it was so also in the Brittish times of K. Arthur whose Parliaments we may assert by more than that in Caius of Cambridge we find in these very Laws and that by Vertue of this Oath King Arthur raised his Subjects and expelled the Saracens and Enemies a Regno from the Kingdom And the same Laws tell us that the same Oath was renewed and Confirmed by K. Edgar whose Laws are severe enough for Treason but against all Lords as well as the King and it is Punished as Theof And the Laws of Canute confirming those of Edgar require Fealty conjoyned with Duty and Virtue and again with Common Justice Iusjurandum datamque fidem Religiosissimè servato injustitiam pro sua quisque virili Parte ditionis nostrae finibus omnem arceto as Lambard translateth the Saxon of those Laws and in another place of them The Leet Oath of Fealty Iure Iurando fidem det omni se in posterum aetate tum furti tum furti Societate Conscientia temperaturum And to this doth King Edwards Oath of Allegiance in Britton seem to allude que ilz nous serrount Feaul Leaux que ilz ne serrount Felons ne a felons assentaunts yet I do not deny but Theof in this Oath might include Treason with other Felony as vvas touched before but however it is as well for the Kingdom or the Common good as for the Kings Prerogative or private Honour o◠the Crown So also the first Norman Laws called the Conquerors require an Oath of Allegiance but for the Publick Peace and common Justice to the Kingdoms good as much as to the Crown for so the words run fint Fratres conjurati ad Regnum N. contra inimicos defendendum Pacem dignitatem N. Coronae N. ad Iudicium rectum Iustitiam constanter modis omnibus pro posse suo as K. Canutes Laws before sine Dolo sine dilatione faciendam This is now continued also through our great Charter and all the Confirmations of K. Edwards and K. Williams Additions in utilitatem Anglorum vvhich may be considered as a good Comment on the usual vvords in Indictments against the Peace and Crown and Dignity vvhich by those Ancient Lavvs vvas to be joyned vvith the publick common good and Justice of the Kingdom So that Allegiance vvas ad Legem to the Laws the Kingdom and the Kingdoms good or Profit together vvith the King And in all the Lavv Books vve may read of Treason done and committed against the Kingdom as against the King So in Hengham Parva cap. 3. If any raise War against the King or against the Kingdom ubi quis movet Guerram contra Regem vel Regnum And his Commentator referreth to several Cases in Edward the third Henry the fourth with Plowden and others which would be considered Nay there are many old Authors and Masters of Law that expresly declare it to be as Real Treason to seduce the King or the Kingdom or an Army for the Kingdoms Safety as to Act against the Kings Life So in Hengham Magna cap. 2. Treason is branched thus de Nece vel Seditione Personae Domini Regis vel Regni vel Exercitus And the very same Division of Treason is in Glanvil both in his first Book and second Chap. and the first Chapter of his 14 th Book To which also may be added Bracton Lib. 3. cap. 3. de Coronâ and Fleta lib. 1. cap. 21. vel ad seductionem ejus vel exercitus sui and Britton cap. 22. disheritur de N. Royalme ou detrahir N Hoste of which also Stanfords Pleas of the Crown lib. 1. cap. 2. and others that Wrote since the Twenty fifth of Edward the third which may seem to limit or to lessen high Treason but not to annul Treason by the Common Law And in Cases of such Treason they declare that although there be no Accuser but only Suspicion sed fama
in due Place This is very considerable that among all other Judgments threatned on Babylon and Edom for they are equals in most this is one and the chief of all that they shall be perpetual Desolations and shall never return or rise again when they be fallen Tyre and Sydon might return again Aegypt and Aethiopia for Chush may reach to that also from Chusiana on the Banks of Euphrates and Tygris whence they passed through Arabia and there left their Name also cross the red Sea Moab and Ammon shall escape from the last Northern King in Daniel and they shall return in the latter days a noted Phrase Nay Sodom it self shall return and rejoice with her Sisters Samaria for Ephraim in this also seemeth to be the first born and with Ierusalem the younger Sister So spake the Type also when Lot and Abraham's Tennants of Sodom were in the fourteenth great Year delivered from the Oppression and Tyranny of all the four grand Monarchies of Shinaar or Babylon of Elam or Persia Ellassar the Prince of Ellas or Greece which three also may lie in the Heifer Ram and Goat God's own Emblems of the three first Monarchies which were divided and broken about the Dove and Turtle of Abraham and the King of the Gentiles may typifie the Roman Empire Although I could yet believe there may be more in it Antichrist may seem to have two Horns one in the West and Christian Temple the other in the East and Jewish Temple Edom and Babylon Mahomet did rise about as bad a time at Rome as Hildebrand But it may be his Horn must end in Gog and Magog whence the King of Gogim in Genesis which is very probable to be Alleppo the Turks greatest Residence in Asia directly North to Ierusalem and of old not only Hierapolis but Magog also in some antient Heathen Authors But Edom and Babylon shall mourn and lament in that Eternal Desolation while the whole Earth besides so speak the Prophets shall rejoyce The World must be renewed the Promise and the Blessing to Adam must not fail one tittle nor could the Flood or its worst Causes disanul the Grace of God established so long before Nay it was continued confirmed and inlarged in the new Charter to Noah The Scripture is very observable although I dare not be too confident in ought of Noah's Blessing or Will or Commands found in the Cave among the Tuscan Rarities much rather then Antiquities Yet With much of those also there is more to be compared then I have yet seen in Lazius or Berosus for Annius may be excused who found it with that Title but the Book was written by a Iew if Tsemack David do not deceive me And the Jews with much consent expect this glorious Change Both touching themselves who never yet 't is thought possessed half their promised Land from Euphrates to the Sea from Lebanon to Aegypt nay where ever their Feet did tread and others also of the Pious Gentiles To this day they shake their Palms in Triumph every way in their great Hosanna in allusion to the Psalms and Prophets who say that every Tree of the Wood shall shout rejoyce clap Hands and sing for Joy Nor do they think the time far off and that from better Grounds perhaps than is the old Prediction in their Zohar which foretels their Redemption should be upon or about the Year last past to which they add somewhat they see or have heard from their Brethren of Iuda in Brasile or of Israel in other parts of America which they cannot much believe till it be better confirmed although it be with many Arguments asserted by a grave sober Man of their own Nation that is lately come from the Western World It is strange if it should prove true and that which might regain some of Esdra's Credit besides all of Christ and the Iews long Captivity with their return about the Ruine of the Roman Empire whose twelve first Caesars with divers others he describeth clearly in that also of the ten Tribes passing through a River or Strait may it be the Strait of Anian in a long Journey of many Months or Years to a Countrey not inhabited It is also remarkable that such good Authors should relate the Traditions of the Mexicans or others in those parts coming a great Journey with an Ark carried before them on Mens Shoulders with their God therein and what others have observed of Circumcision found in some of those parts with other Rites of Tribes Heads of Tribes and Families with some pretty Ceremonies of Marriage Funerals and Washings not altogether unlike the Iews or Israelites However it seems they left many of their Brethren behind them in Asia though it must not be in Tartary The World will not admit of it of late although it was very current a while in Dan and Naphtalim Mount Tabor or I know not what in Ortelius and others But Millions of them are still found in Persia and other parts of Asia though I give no Credit to their Kingdom in Caramania or elsewhere described or feigned by Benjamin the Jew in Eyre Yet with him must be condemned if he lies in all some of our own that have travelled in those parts Not only Master Herbert who hath many considerable Passages besides that of a mighty high Peak of Taurus for Ararat not very far from the Caspian Sea which he saith the Inhabitants do still to that day call the Descent from the Ark which would much have pleased Sr. Walter Raleigh and other learned Men that would not have Noah come out of Armenia though so many Heathens also do record it thereabout But to return to the Iews and their Return It is so clear and so full in the Scriptures both Old and New that I need not seek it in the Apocrypha where yet are many Predictions of it clear enough especially in Tobit I mean the old Hebrew Tobit brought from the East for that we have is broken and imperfect much being only taken from a Iew 's Mouth that Translated it to Ierome as himself confesseth if I forget not All the Prophets speak clearly of it but Ionas that of him we have was but a second Prophecy which besides all the Iews somewhat in his own Words doth intimate And we need no more for in the Kings we find Ionas's Prophecy for Israel's even Israel's Restoration which is there also carried up to Moses's Song cited also in Ezechiel besides other Prophets as that which is clear enough for what we speak So is Moses also clear that great Troubles shall befal them in the latter Days that is in the time of the Messiah as they all confess for so they still interpret the Phrase And to this Place with others they refer their Afflictions under Messiah Ben Ioseph Whom I hope they begin to think already come although Ben David do not yet appear to them but Moses addeth that the Gentiles should also rejoyce with his People Israel
the Close is Acta haec confirmata apud Londonium Communi Concilio omnium Primatum meorum c. I should be unjust to our Laws if I should omit the Process and Plea of Morgan Hen against Howell Dha the good Prince of Wales Upon complaint they were both summoned by King Edgar Ad curiam suam and their Pleas were pacately heard In Pleno Concilio repertum est justo Iudicio curiae Regis quod Howell Dha nequiter egisset extra Morgan Hen filium sui Huwen depulsus est Howell Dha ab his duabus Terris the Lands then in question sine recuperatione Postea Rex Edgarus dedit concessit Hueno Morgan Hen illas duas Terras Istradum Euwias in Episcopatu Landas constituas sicuti suam Propriam Hereditatem illas easdem duas Terras sibi Heredibus suis Per chartam suam sine Calumpnia alicujus Terreni hominis confirmavit communi nostro assensu testimonio omnium Archiepiscoporum Episcop Abbatum Comitum Baronum totius Angliae Walliae factum est coram Rege Edgaro in pleno concilio c. This Record of King Edgar is in Codicae Landavensi fol. 103. I find it cited by the great Antiquary Sir Henry Spelman and it may be compared with the Monk of Malmsbury and Matthew of Westminster I must not relate the Visions or Predictions of the Fates of this Kingdom which Historians record about the Reign of King Edgar they are in print and may be read of all Besides the Prophecies of both the Merlins for the Scottish Merlin was fuller and plainer than the British in Vortigers time That I say nothing of Cadwalladers Vision or Alans Council which was long before the other Alane wrote on Merlin or of the famous Eagle of Shaftsbury that agreed with others in the Britains recovering their Kingdom again after their grand Visit at Rome whence they must bring Cadwalladers bones This leadeth me also to the Sybils Prophecy of three British Princes that should conquer Rome Brennus was one King Arthur some make the second Et quis fuit alter And of these Sybils or one of them sending a book to King Bladud so famous for the Bath and Greek-Schools or University at Stamford the Scotish Merlin seemeth to have written if among others I mistake not Baleus But of Edgar's Parliaments one was at Salisbury so we read in Chaucer or the old Fructus Temporum by Iulian Notary at St. Albans And of another of his Parliaments at Bath the Saxon Chronology at the year 973. His Laws are now printed and their Title is The Acts of King Edgar and his Parliament Mid his Witena Getheate gerred c. Here we find much considerable of Thanes which all will have to be Noble-men but it must be with them a Saxon word And Dhenian is to serve whence the Princes Motto Ic Dhaen For so it should rather be than in Dutch Ich Dien But why should Noble-men or those that were the freest have their name from serving Here they flie to Knights-service King-service or I know not what most proper as they say to free and Noble-men But from a Judge or Fleta we may be taught that the Saxon Dhaen or Thaen is a Servant but Thayn a Free-man And in this sence it seemeth to be used here As also in Denmark and Ireland Nor did the Britains differ much whose Haene or Hane is an Eldar although Hyne be sometimes used for a Servant And so the Irish Tane is Elder whence their Tanistry or Eldership the cause or sad occasion of such bloudshed These British Hanes the Saxons in compliance called Ealdermen St. Edward's Laws afford so much and it may be Thanes although with them they had the name of Greeues or Graves suiting well with Elders Hanes or Senators With which we may compare the Phrase of Seniores which we read so oft in Gildas Nennius Monmouth and others of the British and first Saxons times in Britain I should be tedious in but glancing over the Acts of Parliament in Edgar's time That of the Standard at Winchester is considerable and that of one Coyn through all the Kingdom The Mirrour is plain in making it an Act of Parliament in Saxon times That no King of this Realm should change his Money or embase or enhanse it or make other but of silver Sans l' assent de tout ses Counties Which the Translator is bold to turn Without the Assent of the Lords and all the Commons We may not omit the Act against unjust Judges or Complaints to the King except Justice could not be had at home For which also the Hundred-Courts were again confirmed and the Grand Folkmootes or Sheriffs Turnes established by Act of Parliament Of which and of their relation to Peace and War more in Edward's Laws which may afford a Comment for the Saxon Militia I need not speak of the Parliament at Calna it is famous enough where Considentibus totius Angliae Senatoribus the Roof fell down and hurt them most but St. Dunston Of which Wigornensis Iornalensis Malmsbury Matthew of Westminster and so many others may be cited King Ethelred's Laws have this Title in Lumbard Sapientum Concilium quod Ethelredus Rex promovendae pacis causa habuit Wodstoci Merciae quae legibus Anglorum gubernatur aefter Aengla-Lage Post Anglis Lagam as an old Author turneth it In those Acts we read of Ordale Sythan the Gemot waes aet Bromdune Post Bromdune Concilium It seems a Parliament And again Iussum ac scitum hoc nostrum si quis neglexerit aut profuâ quisque virili parte non obierit ex nostra omnium sententiâ Regi 100 Dependito By which it appeareth to be a Parliament and not the King only that made those Laws That which Sir Henry Spelman calleth Concilium AE 〈…〉 e Generale was clearly one of King Ethelred's Parliaments and the very Title is De Witena Geâ—ednessan and tha Geraednessa the Englaraed Witan gee 〈…〉 c. And divers Chapters begin Witena Geraednesse is enacted by Parliament And the old Latin Copy of this Parliament telleth us that in it were Vniversi Anglorum Optimates Ethelredi Regis Edicto convocato Plebis multitudine collectae Regis Edicto A Writ of Summons to all the Lords and for choice of the Commons a full and clear Parliament In this Parliament were divers Acts for the Militia both by Land and Sea as most Parliaments after King Edgar and among others for Castles Forts Cities Bridges and time of the Fleets setting out to Sea It is made Treason for any to destroy a Ship that was provided for the State-service Navem in Reipublicae expeditionem designatam as a learned man translateth the Saxon. And no Souldier must depart without leave on forfeit of all his Estate None may oppose the Laws but his Head or a grievous Mulct according to the Offences quality must recompence It was here also enacted That Efferatur
consilium quod Populo habeatur utilissimum And again In rem totius Patriae And that each should do as he would be done to Which it calleth the Most right Law And that the higher and greater men the Delinquents were by so much the more and heavier they should be punished Of which and of their Wergylds for all Ranks of men Again Iniqua omnia injusta quae Rex unâ cum Optimatibus exterminare decreverit abjiciantur c. That about this time Danegeld came to be paid to the Danes which was before against them is agreed by all Malmsbury is bold to ascribe it to a Decree of the Archbishop of Canterbury but Huntingdon may be his Comment telling us That Consilio infausti Siricii Archiepiscopi Edelredi 13. primum Statuerunt Angli quod ipsi Censum Dacis persolverent A clear Act of Parliament Of which also Florence of Wygorn And again Anno 1007. Rex Senatus Anglorum Dubii quid agerent quid omitterent communi deliberatione gravem Conventionem cum exercite fecerunt ad pacis observationem 30000 l. ei dederunt c. This also from Huntingdon And among the Saxon Laws we read Foedus quod Ethelredus cum exercitu Anlavi c. ex Sapientum suorum Consilio feriit And again Pacis foedus Ethelredo Regi omni Populo Leodsayre And again Socii ac foederati nostri omnes per Mare Terras in Portu extra pace fruuntor With divers other Passages of Peace and War setled by that Parliament Iornalensis addeth another Parliament in this King's time Apud habam Constituerunt omnes ut Regi suo pareant sicut Antecessores sui melius fecerunt cum eo Pariter defendant Regnum c. ut cantetur quotidie pro Rege Communiter omni Populo suo And again Prohibemus omnem Roboriam c. omnis Index Iustus Misericordiam Iudicium liberet in omnibus timeat omnis Iudex ac diligat Iudicem suum ne in die Iudicii mutus fiat humiliatus c. Nor may I forget the famous Judgment for the Bishop of Winchester by the Thanes and Ealdormen in the Witenagemote or Parliament of Eldred Quo dum Duces Principes Satrapae Rhetores Causidici ex omni parte confluxerant Of which the old Book of Ely cited by Mr. Selden in his Titles of Honour And for the Militia Roger Hoveden is very clear and full at the Danish Irruptions Qua recognità Rex Anglorum Egelredus his names are many suorum Primatum consilio classem Pedestrem congregavit exercitum And again Habito Concilio cum Regni suis Primatibus utile Duxit à Danis dextras accipere stipendium dare placabile tributum solvere And again Primatum suorum Concilio nummos ad Danos c. And again Rex Regni sui Primates ad illos Danos miserunt Legatos pacem ab iis petentes stipendium tributum eis Promittentes So is old Florence of Worcester Consilio Iussuque Regis Anglorum Aethelredi procerumque suorum de tota Angliae robustiores Lundoniae congregatae sunt naves And again Procerum suorum consilio ad eos Danos Legatos misit promittens tributum stipendium And again Omnes Angliae Primates utriusque Ordinis ante Pascha Lundoniae congregati sunt ibi tamdiu morati sunt quousque tributum Danis Promissum quod erat 48000 l Persolveretur And again Cum apud Oxonefordam magnum haberetur placitum c. eodem tempore Canutus cum magna classe c. Eadmundus Clito magnum congregavit exercitum c. So is Matthew of Westminster adding much to those before him and ascribing that bloudy Council of the Danish Massacre to one Huna Princeps Militiae qui sub Rege Regni negotia dispondenda susceperat cujus consilio misit litteras Rex in omnes Regni fines Mandans nationibus singulis universis c. Of which St. Edward's Laws But Oxoniense placitum is in Florilegus Magnum apud Oxoniam colloquium Anglorum pariter Danorum And so the old Glossary of Canterbury tenders Gemot by Placitum and Fologemot by Populi Placita So also Law-Mootes are Placita Magnum placitum the great Folo-mout or Parliament as Comitatus placita with Matth. Paris County-Courts parva placita Oxford Parvises I must not stay long on the Acts of Parliament which Angles Kynnes Witena made and established Cum Walliae Consiliariis de Monticolis Where among other things we find it enacted That Viri duo denijure consulti Angli sex Wallique totidem Anglis ac Wallis jus dicunto With which we might compare our Laws de Medietate Linguae c. But for our Trials by a Jury of Twelve we have a much clearer Law in another Parliament of Ethelred Frequenti apud Wanalingum Senatu Of which Iornalenfis and Mr. Lambards Glossary In singulis Centuriis Comitia sunto atque Liberae conditionis viri duodeni aetate Superiores una cum praeposito sacra Tenentes Iurante se adeo virum aliquem Innocentem haud Damnaturos Sontemve absoluturos An old MSS. thus Habeantur placita in Singulis Wapentakis ut exeant Seniores XII Thani praepositus cum eis Iurent super Sanctuarium quod eis dabitur in Manus quod Neminem Innocentem velint accusare vel Noxium Concelare But of more ancient Tryals by Twelve in fitter place although I must not spend time to confute the Italian who will have that terrible Custom as he thought brought in by the Conqueror The Proofs of Parliaments in Canutes time are so many and so full that they tire us altogether How he confirmed the Laws of Ethelred and other Predecessors we read in the Monk of Malmsbury who recordeth also his remarkable Letter from Rome directed to the Archbishops Bishops c. Primatibus Toti Genti Anglorum tam Nobilibus quam Plebeis As also his Charter to Glastonbury Cum Concilio Decreto Archipresulis Edelnothi simulque Cunctorum Dei Sacerdotum Consensu Optimatum Hoveden in full in this also Cujus Edmundi post Mortem Rex Canutus omnes Episcopos Duces necnon Principes cunctosque Optimates Gentis Angliae Lundoniae Congregari Iussit A clear Summons of Parliament And the very name of Parliament is found of his time in the old book of Edmunds-bury Rex Canutus anno Regni quinto c. Cunctos Regni sui Praelatos Proceresque ac Magnates ad suum convocans Parliamentum And again In suo Publico Parliamento And that it was indeed a full Parliament we may believe from the persons we find there at the Charter of that Monastery confirmed by Hardi-Canute but granted by Canute in suo Publico Parliamento praesistentibus personaliter in eodem Archiepiscop Episcopis Suffragenis Ducibus Comitibus Abbatibus cum quam plurimis gregariis Militibus Knights of Shires it seems cum Populi Multitudine Copiosâ other Commons also omnibus tum in eodem
quo Lanfrancus diratiocinatur and the conclusion that he was to hold his Lands and Customs by Sea and Land as free as the King held his ezcept in three things si regalis via fuerit effossa arbor incisa juxta super eam ceciderit si homicidium factum sanguis in ea fusus fuerit Regi dabit alioquin liber a Regis exactoribus In the same Author were read of a Great Counsel at London in that Normans Reign and of another at Glocester where the Arch Bishop of York jubente Rege et Lanfranco consentiente did consecrate William Bishop of Durham having no help adjunctorium from the Scottish Bishops subject to him which may be added to that before of Scotland belonging to the Province or Diocesse of York Nor can I abstain from the next paragraph in the same Author how Lanfranc did consecrate Donate a Monk of Canterbury ad Regnum Dubliniae at the Request of the King Clergy and people of Ireland Petente Rege clero populo Hiberniae which with divers others might be one Argument for the Antiquity of Irish Parliments and their dependance on England long before King Henry the Second For which I might also cite King Edgars Charters Oswalds Law and divers Historians of his times But the Charters mention Dublin it self and yet our Lawyers are so Courteous as to free Ireland from our Laws and Customs till towards the end of King Iohn and some of them conjecture that the Brehon Law came in again and that our Parliament obliged them not till Poynings Law in Henry the seventh But to return to our Norman King I need not beg proofs of Parliaments in his time at least not to those who know the Priviledge of antient Demesne which therefore is free from sending to Parliaments and from Knights Charges and Taxes of Parliament because it was in the Crowns not only in King William but before him in King Edward and the Rolls of Winchester for which the old Books are very clear with divers Records of Edward the third and Henry the fourth besides natura brevium That I say nothing of the old Tractat. de antiquo Dominico which is stiled a Statute among our English Statutes And besides all the late Reports or Records I find it in the Year Books of Edward the Third that he sued a Writ of Contempt against the Bishop of Norwich for encroaching on Edmondsbury against express Act of Parliament By King William the Conqueror and by the Arch-Bishop of Canterbury and all the other Bishops Counts and Barons of England It is 21 of Ed. 3. Mich. fol. 60. Title 7. Contempt against an Act of Parliament This might well be one of the reasons why the great Judge giveth so much credit to the old Modus of Parliament as it was held in the time of King Edward the Confessor which as the antient copy saith was by the discreet men of the Kingdom recited before King William the Norman and by him approved and in his time used I have cited it before and compared it with Irish Modus which my much honoured friend Mr. Hackewil one of the Masters of Chancery hath under his hand attested from the Great Seal and Charter of Henry the fourth which himself hath seen reciting a former Charter of King Henry R. Angliae Hiberniae conquestor Dominus who sent the same Modus into Ireland Where himself or his Son Iohn sans terre had no great work to reduce them to the civility of Parliaments To which they had been long before accustomed and the Roll saith communi omnium de Hibernia consensu teneri statuit c. nor doth the division of the Irish-Shires seem so lately setled as some have thought although I may not dissent from the great Patron of Civill and Ecclesiastical Learning the late Primate of Ireland Touching that Irish Modus I have very little to add to the fourth part of the great Institutes in several places I shall now only observe that both these old Modi of Parliaments do agree in this Custom of the Kingdom that the King should require no Ayd but in full Parliament and in Writing to be delivered to each in degree Parliament And both they agree that every new difficult case of Peace and any war emergent within or without the Kingdom vel Guerre emergat in Regno vel extra ought to be written down in full Parliaments and therein to be debated which may be considered by all that will argue the Militia To which also we may add one clause of the Jewish Laws of their great Sanhedrim to whom they retain the power of Peace and War especially where it is Arbitrary and not meerly defensive in which the Law of nature maketh many Magistrates and this might with ease be confirmed from the Laws and Customs of all Civil Kingdoms in all ages But I must not wander from our English Laws I had almost forgotten that which should be well remembred Although many would perswade us to seek our Laws in the Custumier of Normandy it is not only affirmed in the Great Reports but also asserted by Guil de Rovell Alenconien and proved by divers Arguments in his Commentaries on that Grand Custumier that the Normans had their chief Laws from Hence As had also the Danes in the time of Canute for which we might have more proof and witness than the Abbot of Crowland So much even strangers did Love and Honour old English Laws Of King William the Second Sirnamed Rufus I shall speak but little for I must discuss his Election and Coronation Oath in a fitter place Some footsteps we find of his Parliaments in divers Wigornensis and Hoveden tell us that when he would have constrained the Scottish King ut secundum judicium Baronum suorum in curia sua Rectitudinem ei faceret Malcolm did refuse to do it but in the Confines or Marches Where he could not deny but the Kings of Scotland were accustomed rectitudinem facere regibus Angliae But he then said it ought to be by the Iudgement of the Parliaments of both Kingdoms secundum judicium utriusque Regni primatum And I find the like Record cited on Fortescue from Godfrey of Malmsbury But Huntingdon and Matthew Paris also relate that the same King Malcolm did submit both to do Homage and to swear Fealty to our English King and Paris addetth a pretty Story of King Malcolms overlooking Treason But again to King William Of his Errors in Government I shall only say that if Edom did really signified Red as hath been thought I could believe that all Historians speaking of Adamites then oppressing the People might allude to the near affinity between Edom and Rufus for Red. For this was his Sirname of King William the Second Henry the First is yet alive in his Laws and Charters Not only in Wendover with other Historians but among the Rolls and Records yet to be seen in the Exchequer They are now in Print
with the Statutes of King William after the Saxon Laws I must but run and glance His Charter acknowledgeth his Crown to the Mercy of God and the Common Councel Communi Concilio assensu Baronum Regni Angliae It confirmeth King Edwards Laws with all those Emendations which King William added for the profit of the Kingdom It forbiddeth all Levies nay the Monetagium Commune but what was agreed and setled in King Edwards Reign And the Test of that Charter is by Arch-Bishops Bishops Barons Comitatibus Vice-Comitatibus optimatibus totius Regni Angliae apud Westmonasterienses quando Coronatus fui This was copied out into every County and kept in every Abby So much also we find in Matthew Paris Of his Charter to London I may touch in another place This I must not omit in his Laws Sive agenda proecipiat levia permittat hortatur maxima vitanda prohibeat yet still the Laws must be Manifesta Iusta Honesta Possibilis a kind of sacred Tetragram It is the 4th Chapter And the next is the Basis or Foundation of our Law process and of all Judicials In all Causes Accusers Parties or Defenders Witnesses and Iudges be and must be distinct Nec perigrina sint judicia vel a non suo judice vel loco vel Tempore celebrata nec inâ—e dubia vel absente accusato dicta sit sententia c. Nihil fiat absque Accusatore nam Deus Dominus Noster Iesus Christus Iudam furem esse sciebat sed quia non accusatus ideo non abreptus Testes Legitimi sint presentes absque ulla imfamia vel suspicione vel manifesta Macula Recte Sacerdotes accusare non possunt Laicos Nec oportet quemquam Iudicari vel dampnari priusquam Legitimos Accusatores habeat presentes Locumque Defendendi accipiat ad abluenda crimina c. And again Pulsatus ante suum judicem si voluerit causam suam dicat non ante suum Iudicem pulsatus si voluerit taceat Si quis Iudices suspectos habeat advocet aut contradicat Appellantem vitiatam causam appellationis Remedio sublevantem non debet afflictio vel detentionis injuriare Custodia Unusquisque per PARES suos Iudicandus est ejusdem Provinciae Quicquid adversus Adsentes vel non a suis judicibus penitus evacuetur Chap. the 5th and the 31th Iuramentum debet habere Comites Voritatem Iustitiam Iudicium si ista defecerint non juramentum sed perjurium est Qui per lapidem falsum Iurat perjurus est Deus ista accipit sicut ille cui juratur accipit Iuramenta filii filiae nesciente Patre vota Monachi nesciente Abbate juramenta pueri irrito sunt Are These the Laws of England or of Nature rather These we owe to Beauclerck which he owed much to Cambridge See Malms of Plato's Kings Touching the Militia beside that in General confirming King Edwards and King Williams Emendations There are some particular as of Tenants by Knights Service to be freed from Gilds c. That so they might be more ready for the Defence of the Kingdom and in it the Kings Service This agreeth with the old Writ de essend Quiet de Tallagio Which the Tenant in Chivalry might require of Right And Tenants in Dower or Widows had the like Priviledge of which the Old Register natura brevium That also of Edgar or Canute for Cowards in Land or Sea-fight is renued with that of Boocland as before Much also of Helfeng Releifs are agreed and setled For Earls and the Kings Thaynes with others called Meane Thaynes But in some Chapters Thaynes are equal to Barons And all Tenants En chief at Clarendon were stiled Barons and Relief is Cosin German to the Saxon Heriot Being for the Heir or Militia whence Heretoche in King Edwards Laws But the Dutch Here is also Dominus as Senior in so many Nations since the time of Charles the Great And some will have the Saxon Heregeat to be the Her 's Geat or Beast of the Lord or Here which of old was paid before or rather than the Mortuary And from this Here som would derive Haeres So that all Heirs should be Her 's or Lords as Homines were Yeomen You Men or Young Men but Homines in Law as with us Men are Servi Such they say were Yeomen and none Gentlemen but such as came from Barons or at least the Tenants in Capite if not in Antient Demesn But for this see Edw. 1. Tit. Attorney 103 And the Learned Ianus Dane-geld is here also reduced to 12 d. the Hyde as of Old from which it rambled to 3 4 6 8 10 or 12. strict provision is also made for keeping of Arms and against using or lending them for the dammage of Others Nay a mulct is set upon him whose Lance or Sword doth much Trespass though against his will He is to be severely punished that disarmeth any unjustly and must answer all the mischief that ensueth such disarming To this Kings time belongeth the case of William the Kings Chamberlain de Londonia who refused to find a man for the Army as his Tenour required But the Abbot of Abbingdon of whom he held in presentia sapientum in a Witen Moot rem ventilari fecit c. Unde cum Lege Patriae decretum processisset ipsum exortem Terrae merito deberi fieri c. by Friends it was composed and the Tenant enjoyed his Land I find it from Sir Robert Cottons inestimable Treasury cited by Mr. Selden on Hengham Nor can I deny but this with divers other cases might forfeit the Land But as in case of Alienation of such Tenures a Statute of Edward the 3d. provided that the King shall not retain the Forfeits but shall only take a Fine Reasonable which the Chancery must also assess by due Process So is our Law very tender in all cases of Forfeit And among the old Wytes Wardwyte was for the Militia being an acquittance of Mercy to him that had not found a man for the Servise according to his Tenure Of which old Fleta with others The Laws of this King do evince the Tryal per PARES to be long before the great Charter Nor would it be hard to shew it before King Henry and besides all other hints through Elder times the case is well known of Roger Fitz Osborn apprehended by Tiptoft Sheriff of Worcestershire and condemned for Treason in King William the Norman per judicium parium suorum Of which antient Historians before the Commentator on Magna Charta I should not omit King Henry's Charter to the Abbot of Bee confirming his antient Customs and Priviledges prescribed for St. Edmonds time for Grand Assizes c. yet to be found in the Book of Assizes lib. 26. Pl. 24. and in the 3d. or 8th part of the great Reports and in the Comment on Magna Charta cap. 11. but here it is from Ethelred and Edward the Confessor One of