Liberty or Freedom as whether he was a Free-man or not or when the Controversie was concerning an Inheritance in all other cases the Earl or Comes distrained them and the proceeding was by * The word Distringere in the old German Law is used as in ours to force men to appear in Court or give satisfaction by taking a Distress Distringas from the Comes after Summons a method used this day in many if not all of our County and Hundred Courts in this Nation and if after the second Summons they appeared not all their Goods were seized Ll. Longob lib. 2. Tit. 43. c. 2.4 Ll. Boioar. Tit. 6. Also qui ad Mallum legibus mannitus fuerit non venerit si eum Sunnis (i) Sunnis an impediment or excuse hence the Barbarous Latin Exonia and the French Essoin and from them it came into our Law and in casting and pleading Essoins a great part of the Art of our old Law was contained non detinuerit sol 15. culpabilis judicetur c. If any man according to Law was summoned to the Mall and came not if he had no excuse or impediment he was punished fifteen shillings so the second and so the third time the fourth time he was in contempt and his Possessions were seized until he appeared and gave satisfaction in the matter for which he was summoned and if he had no propriety of his own his Fee if he had one was seized The first Summons was upon a weeks notice the second a fourteenights the third three weeks and the fourth 42 nights or six weeks The Summons was thus made he that summoneth another man went to his House with Witnesses How Summons were made and summoned him in his own Person but if he found him not he gave his Wife notice or any of his Family that they should tell him he was summoned which was sufficient Ll. Salic Tit. 1. § 3. and in many other Laws 't is probable the Comes made his Summons by a Writ or short writing in manner of a Citation a Form of which is extant in Marculphs formulae n. 116. As to the English Saxons Mr. Lambard [5.] Arch. p. 64 65. thinks their proceeding in Judgment was de plano and without Solemnity they used for ought he could observe not to call the parties by writ or writing but sent for them by certain Messengers or Ministers such as we from the Normans call Serjeants from the Latin Serviens a Servant and if they did use any Writs 't is strange the Forms of some of them should not be found in the Leigers or Books of some of our old Monasteries or in some of our old Historians Yet one there is in Spelm. Gloss cited out of the Book of Ramsey in Hardy-Cnute's time about 1041. A possessionary Writ to the Burgers of Thetford by which he willed and commanded that Aethelstane Abbat of Ramesey should have his House or Farm in Thetford in Norfolk as fully and freely c. But this seems to be of a later date and made after the Norman mode by the stile of it and put in here to secure the Title Though we have no clear examples of the Process and Judgments here in the English Saxon times yet we find some very antient amongst the Germans by which we may receive some light perhaps how they proceeded in this Nation [6.] Appendix The Form of a Judgment in old Germany One Hrothelm comes to the publick Mall for the hearing of all Causes holden by Humfrid Earl of Rhaetia in his Court in the Fields the Seventh year of the Empire of Charles the Great Anno Dom. 807. or there abouts complains to the Comes and claims a House unjustly with-held from him The Earl calling together the Witnesses which were of the very Country where the House was and charged them upon their Oath that they should speak the truth what they knew in that cause And they said they knew the bounds of the House and the ground that one Mado had bordering upon it and they set out the bounds of the Houses and Land what belonged to Hrothelm and what to Mado then he commanded them to go upon the place and shew the bounds which they did and fixed the bounds between the two dwellings as they had said and the Earl directed many Nobles there present to go with them This being done the Comes asked the Scabins what they would Judge in that Cause and they said according to the Testimony of those men and his Inquisition and Judgment was given accordingly These are the Names of the Witnesses or Jurors Valeriano Burgolfo Vrsone Stefano Majornio Valerio Leontio Victore Maurestone Frontiano Florentio Siptone Valentiano Quintello Stradaris These are the Names of the Scabins Flavino Orcisino Odmaro Alexandro Eusebio Maurentio and very many others N. 1 2 3 4 5. in append See the Judgment its self in barbarous provincial Latin And that these Testes were the same we call Jurors or Jury-men is evident from the Laws of the Longob lib. 2. Tit. 51. de Testibus The best persons in every Territory or City against which there was no Crime Testes and Jurors the same In pago vel civitate What sort of men the Testes were to be were to be Witnesses c. 3. The Comes or Judges were to admit none of ill Fame in their Country to be Witnesses c. 7. Witnesses not to be of any other County nisi de illo comitatu where the things in Controversie were because it was presumed none could know better the State and Condition of a man whether Free or a Slave or the Possession of any man better than their neighbours such as were nearest them c. 11. Such Free-men only as had a Propriety of their own were admitted to be Witnesses and not Tenents or such as resided upon their Lords Lands and had no Propriety of their own yet such might be Conjurators of other Free-men because they were Free-men c. 15. Capit. Car. Ludov. lib. 5. c. 150. Now let any man consider these qualifications of their Witnesses and he must think them the same with our ancient Jurors or Jury-men in England for Witnesses in private Causes between man and man could not be capable of these circumstances and that in all probability Jurors were used all old Germany over before we had them here And also that the twelve Thanes mentioned in King Edgar's Law were Scabins inferior Judges and Assessors with the Aldermen and not Jurors Somewhat like our Justices of Peace at our Assizes Before the Conquest and at the time of making the Survey on Doomesday-books the Jurors here were also called Witnesses Ll. Canut polit c. 76. he that hath defended or secured his Land by the Testimony or witness of the County be Scire Gewitness and in Doomesday the Verdict of the Jury is often called the Testimony or witness of the County or Hundred Clamores de Eurwicscire North Treding homines qui
grew every day more Dissolute all the Kingdom over For which Cause the King calls the Arch-Bishop Bishops and Clergy to London And [8] Ibid. c. 23. He urgeth the Bishops that Clercs might be tryed by the Secular Law for Enormous Crimes having told them the Cause of their being called together and urgently pressed that Clercs taken for or accused of Enormous Crimes might be Left to his Officers and not have the protection of the Church He most Earnestly required by Advice of such as had skill in both Laws That such Clercs might presently be Degraded and * Curiae Tradantur Delivered to the Court whence some very learned men by reason of the Kings favour did affirm That they were not to be sent into Exile or Thrust into a Monasterie by the Canon Law but rather were to be Delivered to the Court That is they were to be punished by Secular Judgment The [9] Ibid. The Arch-Bishop neither could or would bear it Arch-Bishop with the Bishops of his Province having consulted their Learned men being much concerned for the Liberty of the Clergy answered to these things clearly and probably or perhaps by proof luculenter satis probabiliter Respondent according to the Canonical Institution of antient Fathers And in the End of his Speech with much Devotion beseeched his Royal Clemency * Regiâ—m objecrabat Clementiam â—esub novo Rege Christo sub nova Christi Lege in novam peculiarem Domini sortem contra sanctorum patrum instituta novam per Regnum suum induceret cohertionem c. That he would not under a new King Christ and under a new Law of Christ Introduce into a new and peculiar Lot of the Lord contrary to the Decrees of the Antient Fathers a new way of Coertion into his own Kingdom and this he begged for the Kings Sake and the Quiet and Stability of his Kingdom often humbly inculcating that he neither Could or would bear it But the [1] Ibid. c. 24. He requires the Observation of his Laws King not moved with his importunity Demanded more earnestly whether he and the Bishops would observe his Royal * Consuetudines suaâ— Regias The Arch-Bishop and Bishops answer they would observe them saving their Order The King angry at their Answer Laws and Customes adding that in his Grandfathers time they were observed by the Arch-Bishops Bishops Chief men and priviledged persons and That now they ought not to be set aside The Arch-Bishop after Consultation with his Brethren Answered they would observe them salvo ordine suo and the Bishops being asked one by one gave the same answer only Hilary Bishop of Chichester changed the Phrase saying he would observe the Kings Customes or Laws Bona fide in good faith The King was Angry at the Answer and Reservation of the Arch-Bishop and other Bishops and departed from them Most of the [2] Ibid. c. 25. The Bishops desert the Arch-Bishop Bishops Desert the Arch-Bishop and he a long time persists in his Denyal notwithstanding all the exhortations of them and perswasions of the Secular great men yet at length he came to the King at Oxford and promised to change those words salvo ordine suo saving his Order which gave him so much Trouble Hereupon the King [3.] Ibidem C. 26. The Council at Clarendon called the Bishops and great men to Clarendon where he Exacted the promises of the Arch-Bishop and Bishops and by the perswasion of the Bishop of Man and Norwich and two of the greatest Earls of the Nation and other great persons sent from the King he promised bona fide and in verbo veritatis in good faith and in the word of Truth The Arch-Bishop and Bishops promise Bona fide and in verbo veritatis to observe the Kings Royal Laws to observe the Kings Laws leaving out the words salvo ordine suo and all the Bishops did the like and then those Royal Customes were drawn up in form and caused to be written by the great men and Recognized by them In this Council [4] Ib. c. 27.28 The King requires the Bishops to put their Seals to their acknowledgement The Arch Bishop repents and refuseth and indeavours to Escape the King requires the Arch-Bishop and Bishops to confirm their acknowledgment of his Laws by putting thereunto their Seals The Arch-Bishop repents him of his promise and refuseth to do it and resolved to go privately unto the Pope which he attempted and having been twice at Sea was both times Driven back This [5] Ibidem C. 30. Anno Domini 1164. The King Angry at his Endeavour to Escape attempt much heightned the Kings Displeasure against him and he caused him peremptorily to be Cited at a certain Day to answer such things as should be objected against him The King also by a strict Edict * Regni Episcopi Vniversi Proceres Ex Edicto Regio Districtissimè Convocantur The Bishops and great men judgâ— all his Moveables to be Confiscated called together all the Bishops and great men of the Kingdom to meet at Northampton where the Arch-Bishop appeared not in person according to his Citation though he sent his answer and excuse for which cause by the Judgment of all those Bishops and great men all his movables were confiscated This he said was a new form of Judgment according to the new Canons or Laws made at Clarendon for it was never heard of before That the Arch-Bishop of Canturbury should be tryed in the Kings Court for any Cause whatsoever both in Respect of the Dignity of his Church and person and that because he was spiritual father of the King and of all in the Kingdom but he complained more of his Brethren and Fellow-Bishops Than he did of the Judgment or the Lay persons Judging of him c. [6] Ibidem veruntamen multo magis quam de Judicio vel de proceribus Judicantibus de Consratribus suis Coepiscopis Querebatur Novam formam ordinem Judiciorum dictos invenisse ut Archipraesul à suis Suffraganeis aut Pater à filiis judicetur The King in the [7] Ibidem C. 31. 500 l. charged upon the Arch-Bishop Security given for it Second day of this Council required five hundred pounds of the Arch-Bishop which he said he had borrowed of him The Arch-Bishop affirmed the King gave him the money which notwithstanding when he could not prove it was adjudged against him and the King Exacted Caution and the Arch-Bishop making some Delay it was told him he must either pay the money or go to Prison But some men seeing his friends and Suffragans forsake him voluntarily offered themselves as Sureties for him and five not there named became bound every one in an hundred pounds On the [8] C. 34. last day of the Council before he Entred into the Court the Bishops came to him astonished and affrighted at the things they had heard whence *
the Great esteemed the Common-Law of Germany and in many matters was esteemed the Commune Law of Germany as is clear in lib. 2. leg Longobard Tit. 56. Romani Successiones juxta illorum legem habeant similiter omnes Scriptiones secundum legem suam faciant quando jurant juxta Legem suam Jurent Et alii similiter faciant Et quando componunt juxta legem ipsius cujus malum fecerint componant Longobardos illos convenit similiter componere De caeteris vero causis communi lege vivant quam Dominus Carolus excellentissimus Rex Franconum atque Longobardorum in edictum adjunxit That is the Romans may have their Successions in Goods or Estates according to their Laws and likewise may make all their Writings or Charts according to their Law And when they Swear or make Oath of any thing they may Swear according to their Law And others Nations or People may do the like and when they compound for any Fault or Injury done by them they may compound pay the Mulct according to the Law of him People of many Nations living at this time promiscuously together unto whom they shall do Injury concerning other causes they may live according to the Commune Law which Charles the most excellent King of the Franc's and Longobards united into an Edict Above this Law stands Carolus Imperator as made by him which was Charles the Gross Great Grandchild to Charles the Great and took upon him the Empire of Germany 877. Antiq. Alaman Tom. 2. Part. 1. Fol. 4. The Germans would not admit the Roman-Laws or any other but their own Whatever these Laws seemed to be to others yet they so esteemed them as they would admit no other Laws of other Nations in their Judgments or Decisions of Controversies yet permitted Men to Read them for Equity sake and to better their Vnderstanding though they prohibited the use of them in their Courts and Conventions for this reason that though they entertained very many Eloquent Sentences and Constitutions yet they abounded in Difficulties and for that a plain order of words were sufficient and most fit for the doing of Justice Therefore they would not be vexed with the Roman Law or any Foreign Institutions Leg. Wisigoth lib. 2. Tit. 1. Leg. 9 10. Capit. Caroli Ludov. lib. 6. Tit. 269. Thus having shewn the Origin or Time when our Saxon and the German Laws began to be Written let us proceed to see what agreement and likeness there is between them I should be troublesome to the Reader to no purpose should I here Insert all the Laws of the English-Saxons and Germans that are like one another or the very same for substance and matter though the Mulcts or Penalties may be greater or less according to the Judgment of the Legislators and the exigency of different cases The Matter Our Saxon-Laws are to be found amongst the old German Laws and in most of them the Manner is the same although different in some circumstances and there is not one Law published by Lambard but either its self or the Matter and Substance of it is to be found over and over again in the German Laws The English and German Laws for Murther the same Their Lawes for punishing Manslaughter and Murther by Pecuniary Mulcts were alike only different in the Sums or Penalties imposed Ll. Inae c. 33. Alured c. 26. Edmund c. 3. Ethelred in Faeder cum Antavo c. 5. Senatus consult de Montic Walliae c. 5. The same are to be found amongst the German Laws as Ll. Fris Tit. 1.17 and 20. Saxon Tit. 2. Ripuar c. 7 8 9 10 11 12 13 14 16 36. Boioar. Tit. 18. c. 2. Alaman Tit. 49.76 Salic Tit. 61. Anglor Tit. 1. c. 9. and as by some of our Saxon Laws Killing a Man was Death Praefat. in Leg. Alured c. 13. so was it by the German Law Capit. Car. lib. 6. Tit. 5.39 Ibid. lib. 7. Tit. 183. Banishment for Manslaughter Ll. Canut c. 6. Capit. Car. lib. 4. Tit. 20. In some of these forecited German-Laws Man-killing is called Mordritum in others Mordrido or Mortando Mordrum used in the German Laws not found in ours till after the Conquest but in the German-Saxon Laws Tit. 2. § 6. it is called Mordrum which word nor any thing like it is to be found in our English Saxon Laws though it occurs often in William the Conqueror's Laws and the Laws of Henry the First The word is from the German Ermorden or Morden to kill a Man basely and privily as Thieves use to do Herman Comit. Nuenarii Exposit verb. ante Egginhart Ll. Christin Tit. 20. § 2. Siquis hominem occiderit absconderit quod Mordritum vocant the Mulct commonly for the death of a Man was his Wergild that is the value of his Head or Life out of which The Mulct for Murder commonly the Wer-gild or value of him that was slain if he were a Servant his Master or Patron had a part or Compensation for his loss which was called Manbote Ll. Inae c. 69. Ll. Fris Tit. 1. § 3.6 9 10. And for this purpose the Weregilds of almost every person from the highest to the lowest are setled and named in both the English-Saxon and German Laws Ll. Ethelstani toward the end Capit. Car. lib. 3. c. 25. qui subdiaconum occiderit 300 solid componat qui Diaconum 400 qui Presbyterum 600 The Weregilds or value of the life of every person set in Germany as well as England qui Episcopum 900 qui Monachum 400 Ll. Ripuar Tit. 36. § 11. Boioar. Tit. 2. c. 20. § 4. where the Weregild of a Duke is 9060 Shillings Ll. Fris Tit. 15. where the Wergilds of a Nobleman Freeman Countryman and Slave or Servant are all particularly mention'd and as amongst the English-Saxons half or part of the Were was given to the Parents or Relations of the slain Person Ll. Inae c. 20 23. So amongst the Germans Ll. Longobard lib. 1. Tit. 9. § 2. Fris Tit. 1. as above Next after the Laws of Homicide and Murder we may shew the agreement of the English and German Laws in punishing Theft Injury Trespasses Strikings Maiming or Maihening Wounding Bloodshed Dismembring c. Theft punished by Mulcts in the English Saxon Laws Theft how Punished Ll. Inae c. 7 13 14 15 21. Senatus consult de Montic Wall c. 4. Ll. Canut c. 59.6 it was also Penal by the German-Laws Ll. Boioar. Tit. 8. Ripuar Tit. 7.18 Fris. Tit. 3. Angl. Tit. 7. Longobard lib. 1. Tit. 25. yet by the German Saxon Law it was Death to steal a Horse or any thing by Night or by Day to the value of Three Shillings Tit. 4. Slanders Defamations Miscalling punished by Mulcts Slanders and Defamations how Punished Blood-shed Striking and Fighting c. how punished Trespasses how Punished Ll. Sal. Tit. 32. per totum For Bloodshed Striking Mayming Wounding Dismembring c. See Ll. Alured c.
to these Meetings and he that neglects to come shall be punished fifteen shillings So it was here in the Saxons time Doomesday in the Customs of Arcenfield in Hereford-shire Si vice-comes evocet eos ad Sciremote meliores ex eis Sex aut septem cum eo vadunt qui non vadit vocatus det duos solidos vel unum bovem Regi An Ox valued at 2â— qui de Hundret remanet tantundem solvit And there in the Customs of Chester T. R. E. erant duodecim Judices civitatis hi erant de hominibus Feudataries or Milites Regis Episcopi Comitis horum siquis de Hundret remanebat die quo sedebant sine excusatione manifestâ x. solid emendebat inter Regem Comitem and so in the Customs of other places in Doomesday in the time of Edward the Confessor there are Mulcts and Punishments to be found for such Suitors as gave not their Attendance at the County and Hundred Courts And further as we had our * 12 times in a year Ll. Ed. Conf. c. 35. Tit. de Heretoch Hundred Courts Ll. Edgari before cited Ll. Ethelred c. 4. leg polit Canut c. 16. So had the old Germans Ll. Alaman Tit. 36. § 1. Conventus c. let the Meeting or Gemote according to antient Custom be in every Hundred before the Earl his Commissary or the Hundredary ibidem § 2. Hundred Courts in Germany Let the Court be from Saturday to Saturday or what day the Earl or Centenary shall think fit every seventh (e) The old Germans and Saxons reckoned their time by nights instead of days and Winters instead of years in some spaces of time we yet retain the Custom as in seventh night and fourteenight or Forthnight night when (f) In old Germany all Frays Fighting Wounding Striving Stealing and all great Offences and Crimes were accounted breach of the Peace so was it here amongst the English Saxons and at this day with us the Peace is not well kept but when the Peace shall be better kept then the Hundred Meeting shall be every fourteen nights Every Free-man whatsoever he was whether the Vassal of a Duke or Earl was punished twelve Shillings if he came not to this Meeting Matters of less moment were determined in the German hundred Courts as well as in ours Ll. Longobard lib. 2. Tit. 52. c. 3. Matters of less moment were â—riable in the hundred Court No man in the Court before the Centenary shall be judged to death or to lose his Liberty his Estate or his Slaves but all such things shall be judged before the Earl or Legate or Commissioner And the greatest matters were triable in the County that is in the County Court where with them and us the Titles of Estates in Land were triable And lastly as we had our Burghmotes mentioned in our Saxon Laws last cited so had the Germans in their Municipia Burghs and Cities their Courts and Judges Their Burgraves civitatis praeposit which Magistrate was sometimes called Sculdais Sculdasis Scultetus or Schults the Tungreve Burmester or Burgomaster not unlike our Major Bayliff or Alderman if the Cause were such as the Sculdais could not end it he was to direct both Parties to their Judge which was the Comes pagi or Earl of the County where the City or Town was Ll. Longobard lib. 2. Tit. 41. c. 1.2 The Parity or Identity of Courts being shewn the Method of proceeding in them shall be considered the very Forms are not to be found of what was done in the Saxons times The Learned [3.] Praefat. in Auth. decem fol. 43. Selden confesseth he could never find them Some Conjectures I shall make what was done here and shew the proceedings in Germany 'T is said in the Fourth of King Ethelred's Laws made at Wanateing Brompton col 896. Habeantur placita in singulis Wapentachiis and let Courts be held in every Wapentach or Hundred How the English Saxons proceeded in Judgment The 12 men mentioned in the Saxon Laws were no Jury-men but Judges and let twelve of the most knowing so I translate Seniores here Thanes or Freemen assemble and meet with the Centenary or Governor of the Hundred so I render Praepositus and swear they will accuse no Innocent person nor spare one that is guilty These twelve Thanes are commonly taken to be Jurors or Jury-men and the other twelve mentioned in [4.] Lamb. fol. 94. Senatus consulto de Montic Wall Six Welch six English are taken to be a Jury ex medietate linguae to try the Welch and English in those parts but these last in the very Law are said to be Judges and Lawyers and not Jurors and were to be punished in their whole Estates if they judged not according to Right and Equity unless they could excuse themselves by pretending to be ignorant of the Law and the other twelve Thanes named in Ethelred's Law were no other but Judges or Assessors with the Hundredary Reve or Praepositus and sworn with him to do every man right and were the same with the (g) They were Assessors to the Comes in his Court or Mall so called from the Saxon Racha a Cause and Burgus a Burgh or City as if we should say a City Judge they are often mentioned in the Salic and Ripuarian Laws as Assistants to the Graffio or Comes Rachinburgii and (h) So called from the * Gryph Weich Sax. c. 64. n. 7. They occur often in the German Laws Saxon Scheppen jubere monere and were Assessors also with the Count and sometimes as Officers under him judged Causes A shaddow of these we retain still in our †Coke in Hund. and County Courts Inst 4 c. 55 56. Free-holders Judges in County and hundred Courts Notes Judgment given by the Major and Assessors in some of our Corporations Essoims what and whence that word County and Hundred Courts where the Free-holders Sectatores curiae Free-Suitors are Judges and Judgment cannot be given in the Court by the Sheriff but in the presence of two three four or more of Free-holders which is now holden sufficient to intitle them to be Judges and the Judgment there given In some also of our Corporations there are Assessors with the Major or chief Magistrate as in Cambridge Judgment is given by the Major and Bailiffs which are four in number besides the Aldermen c. And we find in the Customs of the City of Chester in Doomesday there were twelve Judges of that City in the time of Edward the Confessor which were the men or Feudataries of the King Bishop and Earl Scabini of the Germans which were Judges Coadjutors and Assessors with the Comes and other inferior Judges The Germans caused appearance by Summons and Distress The Germans had two ways of procceeding one by Summons which in their Laws is called Mannitio and that only in two cases when the Question was about a mans
himself then the Battel was arrayed as in this Chapter is further described but if there were none to make Suit or Clamor of Murder against a suspected Person accused by common fame the Justice might put him in Prison and examine him before four Knights Four Knights 24 lawful men and might cause a Jury of four and twenty of the most discreet and lawful men that could be found in or about the place where the Murder was committed which were supposed best to know the truth of the Case and how it was done and by these to try him he had his challenge allowed to any of them but what twenty of them said was to remain good without contradiction C. 70. Appeal of Murder Of Murder and Homicide the next of Kin might have the Suit c. if the next of Kin were not of Age then the next of Kin to him that was so C 71 72 73 74 75. Glanv lib. 14. c. 4 5 6. Appeals or Suits of Robbery of breach of the Peace when a man had given Security in Court of his peaceable behaviour toward another of Treason of Mayheme of Assault Rape Burning c. C. 69. Jurors were Glanv l. 2. c. 17. The nearest and best men such as knew the matter in question Jurors were bound to speak the truth concerning the Plaints and therefore were to consider all Circumstances relating to them they were to be of the nearest and best men which were supposed to know the thing in Controversie those which were not such or did not know or understand the matter in Controversie were not admitted It was Vacation all those times C. 80 81. See Westm 1st c. 51. in which Marriages ought not to be solemnized upon all Solemn Feasts and Fasts and the four Solemn times The Law of Sanctuary was in Normandy C. 81 82. Law of Sanctuary No Clerk Ecclesiastical Person or Religious C. 82 83. Clerks c. exempt from Lay-Courts except c. was to be taken or arrested and if he were was to be restored to the Church if demanded and if convicted in Ecclesiastical Court was to be degraded and deposed from the Priviledge of a Clerk Such Persons were exempt from sole Jurisdiction of a Lay-Court unless in such matters as concerned a Lay-Fee Simple Plaint personal was so called C. 85 86 123. Simple Plaint Desrene because determined by Simple Law which was called Desrene which was a Purgation of the Defendant by his own Oath and by the Oaths of his Coadjutors This Plaint was either of Words or Deeds of Deeds as when one complained that another struck him and had his Witness ready that said it was true that he saw and heard it and was ready to do according to the award of the Court without which last words his Testimony had been invalid for 't was not enough to say he saw and heard it but he must also offer himself to the award of the Court from which Accusation the Defendant purged himself by swearing that he did not strike him and that his Witness neither saw nor heard it Purgation by Oath or Canonical Purgation and his Coadjutors swore also that he sware a true Oath Desrene in Latin is called Deraisnia and perhaps is the same with Dirationatio in the old Historians in the Canon Law it is called Purgation or Canonical Purgation and with us wager of Law as also here Wager of Law Se cil qui est querelle enchet de la Loy que il a gaigee il doibt amender le misfaict á celuy á qui il le fist á la Court C. 85. If the Querelate or Defendant fails in the Law he hath waged c. when the Coadjutors had sworn the accused Person was freed and the Accuser was in Amends See in this Chapter toward the end the difference of the Amends to common Persons and to Knights and Souldiers who are called Authentick Persons The Amends was as much to the Lord in whose Court it was tryed as to the injured Person and more to the Duke or at the discretion of the Judge according to the worth of the Person and Merits of the Cause Personal Plaints that arise from words C. 86. Actions of Defamation were the same we call Actions of Defamation Pleas or Plaints concerning Possession C. 87. All Pleas of Moveables exceeding 10 s. were tryed by Law apparent Ibidem possessory Actions with us were either for Moveables which they called Chattels as Horses Cows Gold Silver or Immoveables as Land Meddow Pasture and all Possessions inherent to the Land which they called Fees Their Possessory Actions were called Simple when terminated by Simple Law apparent when judged by Law apparent that is by Duel or by Inquisition of Country which they call Recognition Pleas of Debts Debtors and Suerties and of Contracts Covenant C. 88 89 90 91. and Bargains C. 92. Feodal Plaints Jury of twelve Knights c. Pleas Feodal are determined some by Desrene or Simple Law concerning Moveables Feodal and others by Enquest which is a Recognition of the truth of the thing in Controversie by the Oath of twelve Knights or twelve other discreet honest credible Persons no ways suspected The matter of all Inquests was contained in the Writ or Brief Inquests Râ—cognitions and those Inquests that proceed by brief are called Recognitions C. 91. Glanv l. 13. c. 2 The same Writs There was one Brief or Writ of Novel Disseisin another of Mort D'ancestor anoter of Eschaet another of Marriage Encombre another of Dowres another of Presentment to a Church another of Fee and Gage i. e. to inquire whether it were a Fee or Morgage redeemable by the Heir in the Tenents hands another De Feodo firmâ i. e. to inquire whether it were a Fee or a Farm for years in the Possessors hands and who was the next Heir of him that let it to Farm another de Estabiliâ to establish Right or of right as we call it another of Sur-demand when the Lord demanded more Rent and Services than was due another of Lay-Fee and Franc Almoign another of Linage denied another of Heritage C. 95. Tit. vene By Justice here iâ— meant the Sergent Views how taken View is when the Plantiff shews before the Justice and legal men the thing which he demands and 't is to be made at a certain place day and hour assigned by the Serjeant who is here intended by the Justice the Viewers being assembled the Serjeant is to recite the matter of the Plaint contained in the Writ or cause it to be read and then the * Bracton l. 4. c. 16. n. 4. Vpon View the Land was taken into the hand of the Duke and not restored until the Plea ended Plantiff is to shew what he demands with the bounds in length and breadth or as we the Buts and bounds At the time of the View the thing shewn ought to be taken
three four Marks c. as will appear in the Sequel of this History He brought the Clergy under subjection Nor did he think himself secure only by having all Persons in Secular Authority his Dependants and at his Command but he brought the Clergy also Arch-Bishops Bishops Abbats and all Degrees of that Function under his subjection [1.] Mat. Paris fol. 7. n. 10. And the Church Lands under Military Service And Quartered Soldiers in their Monasteries for he put the Bishopricks and Abbies which had Baronies that is great Possessions and were before free from all Secular Service under Military Service and according to his will and pleasure appointed how many Knights or Soldiers they should find in time of War and chased out of the Kingdom many Ecclesiasticks that opposed his evil Constitution nor did he only charge their Lands with the Tenure of Knights Service but also Quartered Soldiers [2.] Ingulph Croyl n. 40. which he had hired in France Almain and Spain in all Monasteries of England in Croyland Abby he Quartered six Milites or Knights and twenty eight Cross-bow-Men that shot Stones and Darts out of * Ballistarii Cross-Bows or perhaps the Officers of the Steel-Bow-Men or Directors of the Management of the great Brakes or Engines with which they battered Walls in the Monastery of Ely after the Isle was reduced were placed forty whereof Bellassis Governor at least of the old Fort called now by the Country People Belsars-Hills if not General of the Forces against the Island was one and thirty nine more all Officers or Men of Account as by their Names and Arms appeareth in a Parchment Roll in the Custody of the Bishop of Ely made in the time of Robert de Orford Bishop of Ely who was [3.] Godw de Presul Angl. p. 318. Consecrated 1302. and died 1309. Nor did he think this enough to restrain the power of the Clergy [4.] Anno Domini 1070. who then bare the chief sway in the Government but by Advice of William Fitz-Osbern Earl of Hereford and others of his Council he searched the [5.] Florent Wigorn. f. 636. He Rifles the Monasteries Monasteries of all England and took away the Money which the richer sort of English had secured there fearing his Austerity and Ravages and commanded it to be carried into his Treasury [6.] Fol. 7. Mat. Paris says he robbed all the Monasteries of their Gold and Silver and spared not their Shrines and Chalices Nor yet did he think himself sufficiently secured from the great power of the Clergy in that Age [7.] Eadmer fol. 6. n. 10. He brought in the Norman Laws and made Norman Bishops in England All things were done according to the Conquerors Pleasure until having brought into England the Laws and Usages which he and his Fathers were wont to observe in Normandy he had made such Men Bishops Abbats and chief Rulers through the whole Land as might be thought very unworthy if in all things they submitted not to his Laws or should in any wise oppose him and therefore all Divine and Humane Matters were ordered according to his Will and Pleasure To this purpose there was a great Council held at Winchester eight days after Easter at the Command of the King he being present and with the Consent of Pope Alexander by his Legates Herminfrid Bishop of (n) Sedune now by the Germans called Sittes and the French Sion and the Country about it Sionois it is seated upon the River Rosne before it falls into the Lake of Geneva Sedune and two Priests Cardinals of the Apostolick See [8.] Florent Wigorn f. 636. An. Do. 1070. A Council at Winchester wherein Stigand was Deposed John and Peter producing his Authority In this Council Stigand Archbishp of Canterbury was Deposed for three Causes to wit because he unjustly possessed the Bishoprick of Winchester with the Arch-Bishoprick and because he invaded the Arch-Bishoprick while Arch-Bishop Robert was living and used his Pall which remained at Canterbury in Celebrating Mass when by force he was unjustly put out of England and received a Pall from Benedict whom the Roman Church had Excommunicated for that by Money he had invaded the Apostolick See [9.] De Gest Pontif. fol. 116. b. Malmsbury says with these two Bishopricks he also possessed many Abbies who in this as he conceived did not commit a Sin of Judgment but Error for that he was a very illiterate Man as were almost all the Bishops of England at that time [1.] Florent Wigorn. ut supra Agalmar Bishop of East Angles and some Abbats Deposed In this Council also Agalmar Brother of Stigand Bishop of East-Angles his Seat being then at Elmham was Deposed and some Abbats The King promoting that work that he might put into their places Men of his own Nation for the confirmation of his new Conquered Kingdom [2.] Ibidem Others were kept in Prison all their Lives He also kept in Prison some Bishops and Abbats all their Life time without any evident Cause [3.] Ibidem Agelric Bishop of the South Saxons turned out and imprisoned without fault He makes his own Chaplains Bishops being neither condemned by any Councils or Secular Laws meerly out of Jealousie and suspicion of the safety of the Kingdom On Whitsunday the King gave the Arch-Bishoprick of York to Thomas Canon of Bayeaux in Normandy and the Bishoprick of Winchester to Walkelin his Chaplain and on the Morrow by his Command Herminfrid the Bishop of Sedune the Cardinals being returned to Rome held a Synod in which Agelric the Bishop of the South-Saxons was not Canonically Deposed whom the King imprisoned at Malborow without any fault There were then also to use the Authors own Phrase very many Abbats degraded The Conqueror gave to his Chaplanes Herfastus the Bishoprick of East-Angles and to Stigand the Bishoprick of the South-Saxons and gave the Abbies to his Norman Monks [4.] Eadmer fol. 6. n. 20. No man to acknowledge the Bishop of Rome for Pope without his Command He would not suffer any one in his Dominions to acknowledge the Bishop of Rome for Pope without his Command nor to receive any Letters from him unless they were first shewn to him [5.] Ibidem The Arch-Bishop might not appoint or prohibite any thing without his Leave The Arch-Bishop might preside in any Council but he would not permit him to appoint or prohibit any thing but what he pleased and such things as were first Ordained by him [6.] Ibid. n. o. His Barons without his Command not to be impleaded He would not suffer any Bishop to implead and Excommunicate any of his Barons all such as [7.] Sâ—ld not in Ead. f. 168. held immediately in Capite or Officers for Incest Adultery or any heinous Crime unless by his Command * But notwithstanding the Conquerors Stoutness and Resolution in these matters by his admission of the Popes Legats for the purposes above
921. C. D. f. 922. A. B. The Earl of Chester obtains Assistance Gloucester takes hold of the occasion joyns the Forces he had and others he immediately raised with those of his Son in Law and marched toward Lincoln Upon his approach the King marched towards him in Battalia his Army consisting of a Main Body and two Wings He Commanded the Main Body himself one of the Wings consisted of Flemmings which William de Ipre Commanded and of Britains which Earl Alan Commanded The other was Commanded by Waleran Earl of Mellent There were also in this Army William de Warenna Gilbert de Clare and Balduin Fitz-Vrse Engelran Saye and Ilbert Lacy. The Battle of Lincoln The Earls Army was drawn up in the same manner Robert Earl of Gloucestâ—r led on the Main Body the Earl of Chester one Wing aâ— the two Brothers Mariadoc and Kalader the Welsh which made the other Wing The Welsh charged the Flemmings and Britains and soon routed them The Kings Army routed The Earl of Chester charged the Earl of Mellent who fled presently King Stephen shewed his Personal Courage in this Battle His Personal Courage He is taken Prisoner he fought bravely and stoutly against the Earl of Gloucester until he was deserted by all his Horse when he yielded himself to him Baldwin de Clare Richard Fitz-Vrse Engelran de Saia and Ilbert Lacy staid by the King and fought valiantly so long as they were able The City plundered and many Citizens killed After the Battle the Earls Army miserably wasted the City and requited the Citizens for their kindness to King Stephen by killing very many of them The [5.] Malms f. 106. a. n. 40. He is Imprisoned at Gloucester and put in Irons Earl presented the King to his Sister then at Gloucester from whence for more security he was carried to Bristol where he was Honourably used until by the instigation of some who affirmed that he had been several times out of the places appointed for his safe Custody especially in the night by the Connivance of his Keepers and therefore was put in Irons The Empress and Earl [6.] Ib. n. 50. b. n. 10 20. with great importunity by Messengers moved the Legat that she might be received to the Government as the Daughter of King Henry to whom all England and Normandy had sworn Fidelity A Treaty between the Empress and Legat in an open Plain Her Oath to him On the third Sunday in Lent they came to a Conference in an open Plain by Winchester The Queen swore to the Bishop he should Order and Direct all the great Business in England and should dispose of all Bishopricks and Abbies if he would keep perpetual Fidelity to her and with Holy Church receive her as Queen The Earl of Gloucester Brian Fitz-Count * Marchâ—o de Walingford He was Constable of Walingford Castle The Legat acknowledged her Queen His Oath to her Marquess of Wallingford and Milo of Gloucester afterwards Earl of Hereford and some others did together with her swear the same things The Bishop then acknowledged her Queen of England and some of his Friends with him made Oath to her That so long as she should make good what she had promised him he should be faithful to her The next day she was received into the City of Winchester and the Cathedral with a Noble Procession The Legat led her into the Church by the Right Hand and the Bishop of St. Davids by the left There were many Bishops Abbats Barons and Knights present [7.] Contin â—lor Worcest f. 676. The Legat Cursed those which Cursed her and Blessed those which Blessed her Those which were Obedient to her Commands he Absolved such as were not he Excommunicated From Winchester she went with the Court to Wilton where came to her Theobald the Arch-Bishop and made his Recognition of her as Queen Here she kept her Easter and there was a mighty affluence of People On the Ninth of [8.] Malms ut supra n. 30 40 50. f. 106. a. lin 1. c. The Monk of Malmsbury says he was present in this Council and gave great attention to what was done April there was a Council of all the Bishops of England and many Abbats at Winchester in which the Legat presided notwithstanding the Arch-Bishop of Canterbury was there The Legat had private Conference with the Bishops apart with the Abbats apart and with the Arch-Deacons apart The next day he makes a Speech to them all Setting forth the cause of their meeting was to Consult of the Peace of the Country tells them of the flourishing estate of the Kingdom The Legats Speech to the Bishops in the Reign of King Henry That many years before his death he had received an Oath of England and Normandy for the Succession of his Daughter and her Issue That she being in Normandy at the time of his death delayed to come into England for the Peace of the Country his Brother was permitted to Reign He says further That though he made himself a Pledge between God and him that he should Honour and Exalt Holy Church maintain the good Laws He accuseth his Brother King Stephen of many Crimes and abrogate the Evil yet it grieved him to remember and he was ashamed to speak how he had behaved himself in the Kingdom the Peace of it was destroyed and no Punishment inflicted upon Evil Doers Bishops were imprisoned and forced to deliver up their Possessions Abbies were sold and Churches robbed The Counsel of ill Men took place and the Advice of good Men was despised That he had Convented him before a Council of Bishops and got nothing but hatred for it He ought indeed to love his Mortal Brother but much more the Cause of his Immortal Father and therefore seeing God had exercised his Judgment upon him to let him fall into the hands of powerful Men lest the Kingdom might be ruined for want of a Governor He declares the power of Electing Kings to be in the Clergy I have called you all hither by my Legantine Power yesterday the Cause was propounded in private to the greatest part of the Clergy of England to whom of right it belongs to Elect and Ordain a King and therefore after having as is meet invoked the Divine Assistance They elect Maud the Empress Queen we Elect Maud the Daughter of the Peaceable Glorious Rich and in our time incomparable King Queen of England and to her we promise our Faith and Defence of her Person and Government All that were [9.] Ibidem n. 10. present either assented to what he said or by their silence seemed not to contradict it The Legat adds We have summoned the Londoners The Londoners present in this Council who in respect of the greatness of their City may be compared with the great Men of England and sent them a safe Conduct and that he hoped they would not stay beyond the next day
Do. 1149. f. â—45 n. 20 30. Tamesis sic Congelatus est ut pede equo quadrigis etiam oneratis transmeabilis redderetur The Thames was so Frozen as Men on Foot and Horseback and Loaden Waggons passed over it The Frost began December the Tenth and ended February the Nineteenth Of Ecclesiastical Affairs THere hath been three Councils of Bishops and Clergy only before mentioned One was held on the 29 th of August 1139. at Winchester The second on the 30 th of March 1142. at Oxford The third eight days after St. Andrew in the same year at Westminster The Business transacted in all three was meerly Secular which properly falls not under this Title and therefore I shall proceed to such things as do In the year 1138. Alberic Bishop of Ostia in Italy The Popes Legat calls a Council of the Clergy the Popes Special Comissary or Legat in England and Scotland by [9.] Chron. Gervas Col. 1346. n. 40 50 60. Col. 1347. n. 10 20 30 40 50 60. Col. 1348. n. 10 20 30 40 50 60. Apostolical Authority called a Council of Bishops Abbats and other Religious Persons of the Kingdom to meet at Westminster on the Thirteenth of December and sent his * This was never done before Citatory Letters to the Prior and Convent of the Church of Canterbury and all others whom it concerned to be present there and choose an Arch-Bishop that See being then void There were sixteen [1.] Ibidem Col. 1347. n. 10 20. The Popes Legat directs the choosing of an Arch-Bishop of Canterbury Cont. of Flor. of Worcester f. 671. Anno Dom 1139. Constitutions Decreed the most notable whereof were these at that time somewhat new and not fully Established and one or two of them never practised before in England The year following Theobald Arch-Bishop of Canterbury Simon Bishop of Worcester Roger Bishop of Coventry Robert Bishop of Exeter and Rainald Abbat of Evesham were Commanded by the Pope to Repair to Rome where they were received with much Honour and were present in the Roman Council such an one as had not been many Ages before In this Council they freely and according to their desires propounded and managed their own Causes and returned home with joy bringing with them the Decrees of this Council then when the Monk wrote written and dispersed far and wide through England And in this Council the under written Constitutions which had been made in this English Council were Decreed which according to the Title was the second Lateran Council holden under Pope Innocent the Second Anno Dom. 1139. Apr. 8. Labbe Tom. 10. Col. 999. This practise of the Pope was new to call particularly whom he pleased to Councils Constitution V. None may receive a Church or any Ecclesiastical [2.] Ibidem The foremer part of this Constitution about Investitures was new Buying of Benefices prohibited Married Priests and such as kept Concubines deprived of Ecclesiastick Benefices c. Benefice from a Lay Man When any receive Investiture from a Bishop we Command that he swear upon the Gospel That neither by himself nor any other he gave or promised any thing for it and if it be presumed he did the gift shall be void and both the Giver and Receiver shall be subject to Canonical Censure Spelm. Concil vol. 2. f. 41. Constit VII Walking in the steps of the Holy Fathers we deprive Married Priests Deacons and Sub-Deacons and thâ—se that have Concubines of their Ecclesiastical Benefices and Offices And by Apostolical Authority we forbid all People to hear their Masses Constit IX If any one Kills [3.] Ibidem Col. 1348. lin 5. n. 10. Imprisons or lays his Wicked Hands upon a Clerk Monk or Nun or any Ecclesiastick Person unless he makes satisfaction upon the third Admonition let him be Anathematized Nor shall any one unless in danger of Death enjoyn him Pennance but the Pope and if he dies impenitent his Body shall not be Buried This Canon or Constitution was made to prevent the Rudeness and Inhumanity of the Soldiers who in this Intestine War used all Persons alike Religious and Secular the Sword made little difference nor made they scarce any distinction of Places in their Rapine or Plundering Constit XI We prohibit by Apostolick Authority That no Man builds a Church or Oratory in his own Fee without the Command of his Bishop This Constitution was new and made to baffle the Right of the Lay Patron which was Originally grounded upon the Feudal Law and the Erection of a Church within the Precinct of his own Fee or Maner and the Donation or Grant of the Tithes within that Precinct unto it and to Entitle the Pope or Bishop unto it by reason of his Command was this Constitution made This Council being Dissolved * Ibid. n. 50. Jeremy Prior of the Church of Canterbury and some of the Convent whom the King had called in the presence of him and the Legat with some of the Chief Men and Bishops of England chose Theobald Abbat of Bec Arch-Bishop of that See At which the Bishop of Winchester and Legat was much moved designing it for himself but lost it by the Contrivance of the King and Queen and for this cause it was reported by some that he left the King his Brother and went off to the Empress Earl Robert and Milo the Kings High or Great Constable Notwithstanding the Ninth Constitution of this Council the Soldiers abated not of their rough usage of the Clergy and Ecclesiasticks and therefore the Bishop of Winchester and Popes Legat to check their Barbarities [4.] Rog. Hoved. f. 279. b. n. 40. called a Council at London in the Eighth year of this Kings Reign Anno Domini 1143. in which it was thus Decreed That because no Honour was given by Ravagers and Plunderers to Clerks nor to the Church of God A Canon for the security of Clerks and that Clerks were as frequently Imprisoned and put to Ransom as Lay Men Therefore who ever laid violent Hands upon a Clerk should not be absolved but by the Pope himself From which Decree the Clerks received much Relief and Advantage Mat. Paris [5.] F. 79. n. 30. adds to this another Decree â—That the Churches and Church-Yards whether the Poor People fled with their Goods should be as free from violence as the Priests themselves Another for the security of Ploughs and Ploughmen and that the Ploughs and Ploughmen in the Fields should enjoy the same freedom and they Excommunicated all Contraveners to this Decree â—with Light Candles or Tapers And so saith the Monk the Rapacity of the Kites was somewhat abated The next was a General Council in the Sixteenth of this King Anno Domini 1151. holden at London [6.] Hen. Hun. f. 226. b. lin 3. by Theobald the Arch-Bishop of Canterbury and the Popes Legat in which were present King Stephen his Son Eustachius and the Barons or Great Men of England This
was a comfort to them when by common fame they heard that being beyond the Seas he had no Designs or Contrivances against their Lord the King or his Kingdom but that he did bear with modesty that Burthen of Poverty which he had voluntarily undertaken and had withdrawn and sequestered himself out of Devotion to humble himself and to obtein or improve his Spiritual Welfare and rejoyced to hear he was so studious of Peace But then to their great Grief they heard he Threatned the King with an Interdict and to cut him off from the Church They press upon him the inconveniences of such proceedings and the conveniences of a Quiet and peaceable temper And urge him to consider That the King against the Dissuasion of his Mother and the Opinion of the Kingdom or Secular Government Regno reclamante caused him to be Elected Arch-Bishop in hopes he might Reign happily and injoy great Quiet and Security by his advice and assistance They tell him The King being appointed by God provided for the peace of his Subjects in all things and preserved it to the Churches and people committed to him That he exacted and required the Dignities due and Exhibited to Kings before him should be allowed and Exhibited to him About which if there were any Controversie between the King and himself when he was admonished by the Bishops of London and Hereford by Directions from the Pope he answered humbly and meekly That if any Church or Ecclesiastical person whatsoever could shew themselves grieved or injured he would in all things submit himself to the Judgment of the Church of his Kingdom and That in very Deed he was then ready to perform it and give satisfaction for the injury done And then they Demand by what right what Law what Canon or interdict he could urge or press the King or how he could cut him off from the Church and then move him to Peace and compliance and smoothly Reprove him for several preposterous new and unwarrantable Actions as suspending and Condemning the Bâ—shop of Salisbury before he was accused or heard which new Order of Judgment say they to Condemn first and hear the cause afterward as they hoped was then not to be found amongst the Laws or Canons And lest he might attempt to exercise and extend it against their Lord the King or his Kingdom or against them and the Churches committed to them To the prejudice of the Pope the Disgrace and Detriment of the holy Roman Church and the increase of his own confusion they opposed the Remedy of Appeal and the second time Appealed to the Pope in Writing and Designed * Ann. Dom. 1167. Ascension Day for the time of Appeal Such another [3] Append. N. 51. They write to the same effect to the Pope They tell him there was no need of an interdict c. They fix the Ground and cause of the Controversie in the Extravagancy and Crimes of insolent Clercs and the manner of punishing them Epistle and much to the same Effect The Bishops of his Province wrote to the Pope in behalf of the King In which they excuse him as before Commend his compliance and obedience and inform the Pope there was no need of an Interdict Threats or Curse to force him to satisfaction They assign for the ground and Cause of the Controversie the Extravagancies and Excesses of certain insolent Clercs and the maner and place of punishing their grievous Crimes and Enormities They Blame Thomas for Threatning to Excommunicate and Interdict the Nation and say it was neither like the Devotion or Patience of a Father or Arch-Bishop They acquaint the Pope he had Excommunicated some of the Kings Servants and chief men of the Kingdom and his special assistants and Counsellors by whom the great affairs of the Kingdom were much directed without Citation without making any Defence and as they said without Guilt not being Convicted or having Confessed any fault And lay before him the inconveniences and ill consequences of his extravagant actions and at length make their Appeal to the Pope and propound the Day of Appeal as before An Abstract of the Rescript or Answer of the Arch-Bishop to his Suffragans Epistle here follows The Rescript it self is to be found in the Appendix N. 56. THrough the whole he Draws and insinuates a Parallel between our Saviour Christ and himself The Arch-Bishops Answer to the Epistle of his Suffragans Tells them they wrote it not by Common advice and Prudence it conteining more of Mordacity than Comfort more of Disobedience than Piety or Charity and wonders why they should be so unkind to him when he never did them injury He exhorts them to lay down their lives with him to free the Church from the Yoke of servitude Says the injury done to him the Church of God and Canturbury was the Cause of his Appeal and that the Cause of his Recess He accuseth the Bishop of London Arch-Bishop of York and Richard de Ivelcester for Dictating the Sentence against him and particularly the Bishop of London for Receiving the Money of the Church of Canturbury and applying it to the use of his own He affirms he ought not to fear any punishment or ill consequences for standing out against the King The Bishops he Exhorts not to confound the rights of the Church and Kingdom which were Distinct Powers of which The * He meaâ—s the secular power received authority from Church one received power and authority from the other He says the Bishop of Salisbury admitted Iohn of Oxford Dean of Salisbury against the Popes and his Prohibition which was manifest Disobedience and therefore there was no solemnity required in the Process against him and cites Canons to make good his Assertion He argues against their Appeal and asserts That Legally and Canonically they could not Appeal And affirms it no injury or grievance to the King to smite him with excommunication As to what they say that he was made Arch-Bishop against the Opinion and good liking of the Kingdom He appeals to the form and manner of his Election and indeavours to make what they say improbable from the number and Quality of the persons present and for that the King wrote for a Pall and the Election was made without Contradiction He takes notice they reported him a little Fellow and of mean Parentage his answer was That he Descended not from Kings yet chose rather by the Nobility of his mind to raise a Family then by his negligence to make one Degenerate He tells them they talked of the Danger of the Roman Church of the loss of Temporals and the fear of the Kings and his peoples recess from it of his own Danger and of those that belonged to him but thought not of the Loss of Souls And after this averrs the Suffragans of his Church ought all to be of his opinion and to suffer and dye with him The Epistle or Rescript is very long and what his Potency
Elias Arch-Bishop of Burdeaux William Bâ—shop of Poictiers and Henry Bishop of Sainctes for that they were related in the third degree of Consanguinity Being thus divorced by the advice of his Lord Philip King of France He is Married to Isabell Daughter to the Earl of Engolesme he Married Isabell the Daughter of Aymer Earl of Engolesme whom he had first given by the request and direction of King Richard to Hugh le Brun Earl of Marche they had promised one another and were betrothed but because she was not of years of Marriage Earl Hugh would not Marry her in the face of the Church and her Father perceiving King Iohn had an affection for her he took her from Earl Hugh and gave her to him and they were Married at Engolesme by the Arch-Bishop of Burdeaux The same year [3] Ibid. f. 458. a. l. 5. c. A. D. 1200. the Earl of St. Giles doth Homage to King John the Earl of St. Giles did Homage to King Iohn for the Lands and Castles which King Richard had given him in Marriage with his Sister Ioan so as his Son Raymund by her should have them and do Homage to his Vncle Iohn when he came to years of Discretion and if he should decease without Issue then they were to revert to the Earl of St. Giles and he and his Heirs should hold them by Hereditary Right of the Earl of Poictou by the service of coming with 500 Knights or Horsemen to him for one Moneth at his own charge whenever he went with his Army into Gascony but if he staid longer they were to remain at the charge of the Earl of Poictou From [4] Ibid. n 10. thence King Iohn went to Anger 's and took One hundred and fifty Pleges or Hostages for their Fidelity and put them in Custody and the same year King Iohn took of [5] Ibid. n. 20. Walter Arch-Bishop of Roven * i. e. 200 l. English 600 pounds of Anjou Money to confirm by his Chart all those things which King Richard had given him in Exchange for Andeli to wit The Town of Diepe with its Apertinences and Lovers with its Apertinences the Forest or Wood of Aliersmont and the Mills of Robech The Pope sent Cardinal [6] Ibid. f. 461. n. 1. Octavian Legat into France to hear and determine the Cause of Divorce between the King of France and his Queen Botilda as Hoveden calls her The French Writers name her * Happily she might have two and both these Names du Serres calls her Gelberge Rigord calls her Ysamburg Isemberg with this direction That first before he heard the Cause he should compell him to put away his German Adulteress and receive Botilda or Isemberg and treat her like his Wife ut ipse imprimis ante Ingressum litis compelleret Regem Franciae dimittere Adulteram suam Teutonicam c. On the Vigil of the Nativity of the Virgin Mary or 7 th of September the Cardinal the Arch-Bishops Bishops and Clergy of France met at Nibell and the King of France with his Queen and Teutonick Lady came thither and by the admonition of the Cardinal and advice of his Friends he dismissed her and received again his Queen King Philip receives his Queen again and then made his complaint That she ought not of right to be his Wife for they were near related in Consanguinity and affirmed he could prove it to be so and required they might be divorced The Cardinal gave him the time of six Months six Weeks six Days and six Hours to consider of it and appointed the place of Hearing the Cause at Soissons according to the Queens desire * Ibid. n. 20. The Interdict released France by procurement of the King of Denmark was under an Interdict for the Kings Repudiating his Queen which so soon as he received her again was released by the Cardinal In the middle of [7] Ibid. f. 462. b. n. 20.30 c. King Philip demanded to be Divorced Lent next following Philip and his Queen met again before the Legat at Soissons and the King by his Lawyers demanded to be Divorced for the reason before-mentioned On the Queens behalf there were present several Bishops and other honest and discreet Men Et alii honesti viri disereti sent from her Brother Cnute King of Denmark who after Security given them that they might freely answer allege and safely return home they said the King of France had sent to the King of Denmark to desire his Beautiful Sister in Marriage and that she might be sent to him which by advice of the Great Men of his Kingdom was done That the Messengers which came for her did Swear on behalf of the king and for themselves That she should be honorably used as a Queen and of this they could produce his Chart and the Charts of the Great Men that came for her and therefore Appealed them of Perjury and breach of Faith before the Pope They also Appealed from Cardinal Octavian the Judge to the Pope for that he was related to the King of France and would favour his Cause and the Queen likewise Appealed which when Octavian had heard he desired them to stay a while until his Collegue came that was joyned in Commission with him from the Pope and he should hear and determine the Matter after three days he came and did hear it and found no cause of a Divorce between them of which the King of France having notice He could not obtain it and that he would give a definitive Sentence against him he departed before he had pronounced it and carried his Queen with him and put her into more streight Custody than before In the [8] Ibid. f. 4â—1 a. â— 30.40 King John and Queen Isabel Crowned moneth of October King Iohn having setled his affairs in Normandy and his other Transmarine Countries came into England and brought with him Isabel his Wife and upon the eighth Day of that Moneth they were both Crowned at Westminster by Hubert Arch-Bishop of Canturbury Presently after his [9] Ibid. b. lin 4. n. 10.20.30 40. He sends to the King of Scots to meet him at Lincoln Coronation King Iohn sent Philip Bishop of Durham Roger Bigot Earl of Norfolk Henry de Bohun Earl of Hereford David Earl of Huntington Roger de Lasci Constable of Chester William de Vesci Roger de Ros and Robert Fitz-Roger Sherif of Northumberland to William King of Scots with Letters Patents of safe Conduct and to wait upon him into England to meet King Iohn at Lincoln on the Morrow after the Feast of St. Edmund the King November 21st they met accordingly and the next day they came to a Treaty or Parley upon a steep Hill convenerunt ad Colloquium super Montem arduum without the City and there in the view of all the people William King of Scots became King Iohns Man The King of Scots doth Homage to
a Wall of Defence for the House of the Lord but when they saw the Wolf coming they left their Sheep and fled After this general Seisure of the Temporalties and Goods of the Bishops and Clergie But restored them to those who refused to comply with the Interdict to such of them as submitted to the King and refused to comply with the Interdict who celebrated Divine Service and administred the Sacraments the King by Special Writs [2] Append. N. 89 90 91. restored their Temporalties Goods and Chattels keeping in his hands the Lands and Goods of all Abbots Priors Religious and Clercs who submitted to the Interdict nor did he seize the Lands or Goods of any other Religious Persons or Clercs but such as [3] Append. n. 92. refused to perform Divine Service after the publishing of the Interdict which was upon the Monday next before Palm Sunday or the sixth Sunday or last Sunday in Lent And for the security of their Persons he Issued his [4] Append. N. 93. He sent out his Precept for their Protection Precept That no Man against his Peace should abuse either Clercs or Religious in word or deed and if they did and could be taken they should be hanged upon the next Oak Likewise for their Grain he [5] Append. N. 94. permitted all Arch-bishops Bishops Priors Religious Persons and Clercs after their Barns were shut up to sell it until the Feast of St. Catherin that is the 25th of November King Iohn Reflecting upon the Circumstances he was in fearing [6] Paris f. 2â—7 n. 10. He requires pleges of his great men for security of their Fidelity the Pope might absolve his Subjects from their Allegiance to him required Pleges of all the Great Men he suspected to be delivered to him for their future fidelity Many complied with his Commands some delivered their Sons others their Nephews or nearest Relations to the Messengers or Commissioners he sent for them [7] Ibid. n. 20. some of which coming to VVilliam de Braosa his Wife Maud told them she would not deliver her Children to their Master King Iohn because he ought honorably to have provided for his Nephew Arthur whom he Basely Killed Next Year [8] Ibid. n. 50. A. D. 1209. He forces the King of Scots to desire peace the King raised a great Army and marched toward Scotland and when he came to Norham Castle in Northumberland the King of Scots there met him and desired Peace King Iohn Reproves him for Receiving favouring or assisting his Fugitives and public Enemies but by the Mediation of Friends to both Nations [9] Ibid. f. 228. lin 1. The Terms upon which the peace was agreed they agreed upon these Terms That the King of Scots should pay unto him Eleven thousand Marks of Silver and that his Daughters should be delivered Pleges for the securing of Peace between them Afterwards [1] Ibid. lin 6. He received the Homages of all free Tenents in the Kingdom he received the Homages of all Men that were Free Tenents and Boys of 12 years of Age of the whole Kingdom suppose their Sons only whom after they had done their Fealty he received Kindly and dismissed them with the Kiss of Peace Deinde cepit Homagia de omnibus hominibus libere tenentibus etiam Duodecim Annorum pueris totius Regni Quos omnes post fidelitatem factam in Osculum patis accepit ac Dimisit [2] Ibid. lin 8. The Welchmen came to him at Woodstock and did their Homages The Welchmen also which was never heard of before came to the King at Woodstock and did their Homages to him although it was Burthensome as well to the Rich as Poor After two years [3] Ibid. n. 20. Pope Innocent commanded the Bishops to Excommunicate King John by name continuance of the Interdict and there seemed no hopes of King Iohns amendment or his giving Satisfaction Pope Innocent could no longer suffer his Rebellion to go unpunished Papa Innocentius ipsius Rebellionem Diutius multam Dissimulare non potuit whereupon by advice of his Brother Cardinals he Commanded the Bishops of London Ely and VVorcester by name to Pronounce him Excommunicate That so by Publishing the Sentence every Sunday and Holy-day in all Conventual Churches through England they might cause him more strictly to be avoided by all men [4] Ibid. n. 30 But when those Bishops committed the publication of the Sentence to their Brother Bishops and other Prelates that remained in England they all became Dumb Dogs either by favour or fear of the King and dare not Bark The Bishops in England durst not pubblish the Sentence Effecti sunt universi metu regio vel faâ—oâ— Canes muti non audentes Latrare and therefore Dissembling to Execute what was injoyned them they did not proceed in doing the Popes Commands according to due Form of Law Nevertheless the Sentence was known to all men and filled their mouths with Discourse [5] Ibid. n. 40. Geofry Arch-Deacon of of Norwich leaves the Kings Service Amongst whom Geofrey Arch-Deacon of Norwich as he sate in the Exchequer managing the Kings business Discoursed with his associates concerning the Sentence pronounced against the King saying it was not safe for Beneficed men to remain any longer in the Service of an Excommunicated King and so departed without leave The King having notice of it sent VVilliam Talebot a Knight after him with some Forces who took him put him in Prison and in Bonds His punishment where after a few Days by the Kings Command he had a Leaden Cope put on with the pressure whereof and want of Victuals he Dyed In this Time of the Interdict one Master [6] Ibid. n. 50. A. D. 1209. Alexander Caementarius mainteined the Kings cause against the Pope Alexander called Caementarius a counterfeit Divine Speudo-Theologus maintained the Kings Cause against the Pope Mat. [7] f. 269. n. â—0 Westminster says he was at Paris a famous Master Rector and Reader in Theology Parisijs celebris haberetur Magister Rector Lector in Theologia and that he Defended the Kings Cause out of Ambition And for that Reason by [8] Paris f. 229. lin 6. His Goods and Benefices taken from him procurement of the Pope his Goods and Benefices were taken from him and was reduced to so great Misery as in a poor habit he was forced to beg his Bread from Door to Door In the Year 1206 Dyed [9] Mat. West f. 267 n 20. f. 268. n. 50. VVilliam Bishop of Lincoln and this [9] Mat. West f. 267 n 20. f. 268. n. 50. year Hugh de VVells the Kings Chancellor was chosen Bishop who obteined leave of the King to go into France that he might receive his Consecration from the Arch-Bishop of Roven [1] Mat. Paris f. 229. n. 10 20. Hugh Bishop of Lincoln received his Consecration from Stephan Langeton The King Seized his Bishopric So soon as
John claims the Privilege of the Cross and refers himself to the Popes Discretion wrote to the Pope that the Archbishop of Canturbury and his Suctragans had neglected his Commands and that the great men and Barons altogether refused to hear what he wrote And attending what the Barons said He replied to them That England was the Patrimony of St. Peter and that he held it as the Patrimony of St. Peter the Church of Rome and the Pope and had taken upon him the Crusado and required the Privilege of such who had taken upon them that Expedition And after having recounted the Effects of his Former Offers to the Barons and Bishops upon which he could obtein no Remedy he Refers himself to the Popes Discretion to relieve him Upon the Consideration of all these Offers Declarations Matters and Things and the Recapitulation and brief Mention of them in his [7] Append n. 126. The Pope by consent of the Cardinals Damns the Charter of Liberties Bull and the Information of King John's Messengers lately sent to him the Pope by the Common Consent of the Cardinals Damns the Charter of Liberties and all obligations and Cautions which he had given and entred into for the performance of it and Declares them Null and void By [8] Append. n. 127. The Pope writes to the Barons and chargeth them with evil Practises against the King Letters of the same date with this Bull viz. Aug. 24. 1215. the Pope wrote to the Barons They had not well considered their Oath of Fidelity when they rashly persecuted their Lord the King That all men Detested their proceedings especially in such a cause where they made themselves both parties and Judges When the King was ready to do them Justice by their Peers in his Court according to the Laws and Customes of the Kingdom or to proceed by arbitrators chosen on both sides with a Reference to him if they agreed not And therefore commands them to Renounce that unlawful and unjust Composition they had extorted from him by fear and force and satisfie him and such as adhered to him for the Injuries they had done them That by this means the King might be induced to Grant whatsoever of right ought to be granted to them And further adviseth them to send their procurators or Deputies to the next General Council which he intended suddenly to call about the Business of the Cross where would be the Archbishop and other English Bishops and there Commit themselves to his good pleasure who by the Favor and God intended so to Determin things as to do away all oppressions and Abuses in the Kingdom that so the King being Content with his own Right and Honor the whole Clergy and Laity might rejoyce in their Just Repose and Liberty The Popes Letters or Mediation prevailed not with the Barons they [9] Mat. Paris f. 268. n. 10. The Popes Letters prevail not upon the Barons They consult how to secure London and make William de Albiney Governor of Rochester-Castle persued what they had undertaken and sent for William de Albiney a stout man and experienced Soldier several Times before he came at last upon a Chiding Letter having secured the Castle of Belvoir or Beauvoir he came to them to London where he was received with great Joy by the Barons who immediately consulting how to secure the City of London from being besieged by the King and shutting up all passages to it raised a considerable Force and put them with William de Albiney into Rochester Castle whereof he was made Governor But before they had provided for their Defence so well as they intended the King after three Months stay in the [1] Ibid. n. 30. Isle of Wight was Sailed from thence to Dover where he met his Messengers or Commissioners he had sent beyond Sea with Forces from Poictou The King with forces from beyond Sea besiegeth Rochester Castle The Barons offer to relieve it Gascony Brabant and Flanders with which he Besieged the Castle of Rochester The Barons had Sworn to William de Albiney That it the Castle should happen to be besieged they would use their utmost indeavours to Relieve it they Marched as far as Dartford and then retreated to London They within Defended the place with great Courage and Resolution and at last after almost three Months were forced to yield without Conditions for want of Victuals It yeilds for want of Victuals The Siege was very Expensive to the King and many of his Men were slain in it for which reasons he would have hanged all the Noble Men or Knights had it not been for the perswasion of Savaric de Malo Leone and some others who told him the War might prove long and some of his own Knights might be taken and put to Death after the same manner Whereupon he sent William de Albiney The King Imprisons the persons of best Quality W. de Lancaster W. de Emeford Thomas de Mulecon Osbert Giffard Osbert de Bonbi Odinell de Albiney and others of the best Quality Prisoners to Corf Castle and others to Divers other Prisons all the Ordinary Men but the Cross Bow-Men And Hanged the Ordinary Soldiers he caused to be Hanged The Pope upon notice [2] Ibid. n. 40. That the Barons persisted in the persecution of the King [3] Append. n. 128. The Pope Excommunicates the Barons Excommunicated them and Committed the Execution of the Sentence to Peter Bishop of Winchester the Abbat of Reding and Pandulph Sub-Deacon of the Roman Church in which Brief of Excommunication he injoyned the Archbishop and Bishops by virtue of their Obedience That they should cause the Sentece to be Published every Lords Day and Holy Day with Ringing of Bells and Lightning of Candels throughout all England while the Barons fatisfyed the King for the Injuries done to him and returned to their Obedience The Bishop of [4] Paris f. 271. n. 50. Winchester and Pandulph personally attended the Archbishop of Canturbury and in the Name of the Pope Commanded him to Direct the Bishops of his Province to Publish this Sentence against the Barons He was ready to take Ship to go to the Council at Rome and desired Respit until he spake with the Pope affirming The Archbishop suspended for Disobedience to the Pope the Sentence had been obteined by Concealing Truth and therefore he should by no means Publish it until by Discourse with the Pope he Knew his Mind concerning it [5] Ibid. f. 272. lin 2. The Barons declared Excomunicated They value not the Sentence because not named particularly These two when they found the Archbishop Disobedient to the Popes Command suspended him from entring the Church and Celebrating Divine Service and then the Bishop of Winchester Declared all the Barons that had indeavored to Drive the King out of the Kingdom Excommunitate and continued to do so every Lords Day and Festival But they because not Named in the Popes Brief valued
to perform their Services There were very few Free-hold Lands according to the present Notion of them Nor were the Proprietors of them of much Esteem until the Military Men parted with so much of their Estates as their Fees grew very narrow and scanty so as they could not support their Military Service and Charge and the Burthens as they then accounted them of attending at Hundred and County Courts and upon the Justices in their Iters or Circuits and Sheriffs in their Turns but either sent their Attorneys or Deputies or by Laws of their own making forced the inconsiderable Free-holders or Soccagers upon that Drudgery Nor were these Military Men any other than Normans or the Descendents from them that made this Noise and were the Cause of so much Blood being spilt for their Liberties as they called them which were for the most part nothing but the Relaxation of several Rigorous Exactions and Usages of the Feudal Law relating to their then Fees and Estates as was said before which at first their Ancestors had received from the Conqueror without those Easie Terms and that Abatement of the Strictness of the Law they required For however afterwards and of Late Times that Tenure was esteemed a Thraldom yet it did at first begin upon a Voluntary and Desired Submission and for many Centuries of years had the Reputation of the most Free and Noble Service and all other Tenures whether in Soccage or otherwise were esteemd Base and Ignoble in respect of it And that the Maintainers of the Contest for their Liberties against our Norman Kings were themselves Normans or their Descendents is more than Evident from the Witnesses Names to King Henry the First his Charter who were all Normans and from the thirty six Bishops and Great Men Witnesses to King Stephans Charter of Liberties who were likewise all Normans or Strangers nor is there to be found amongst the Commanders on either side in the War between Queen Maud King Stephan and Henry the Second one English Saxon. The Witnesses to King Henry the Second's Charter were also Normans The Bishops and Great Men mentioned in King John's Charter as Granted to them were all of the same Nation or Foreigners And most if not all the Bishops Earls and Barons that were Witnesses to Henry the Third his Charter were of the same Condition And which is more all or most of the Witnesses and Grantees mentioned in any of the Charters of the Norman Kings after the middle of the Reign of William the First were Normans or Foreigners and there is scarce any one Earl Baron or Great Man to be found in all these Kings Reigns that was not of Norman or other Foreign Extraction And yet in spight of Truth and Matter of Fact we find nothing in our Common Histories of these Times but the Brave Feats performed by the English for their Fundamental Rights and Liberties Nothing in Sir Edward Coke Mr. Selden Mr. Pryn and all late Writers when they chop upon these Times and mention any thing relating to them but the Magnanimity of the English in Appearing for their Birth-rights and the great Privileges they had formerly injoyed no body knows nor can tell when or where when in very Deed they were not English but incorrigible Norman Rebels against their own Norman Princes from whom they or their Ancestors had received so many and so great Benefits and Favours In King Henry the Thirds time the Controversie was not about the Great Charter it self the Granting and Confirmation whereof he never denied but only about the meaning and interpretation of it which then by Law belonged to the King De * Bracton p. 34. a. n 3. Chartis vero Regis factis Regum non debent nec possunt Justitiarii nec privatae personae Disputare nec etiam si in illa Dubitatio oriatur possunt eam interpretari in Dubiis obscuris vel si Dictio aliqua Duos contineat intellectus Domini Regis erit expectanda Interpretatio voluntas cum ejus sit interpretari cujus est Condere Concerning the Charters of the King or Deeds of Kings neither the Justices or any private Persons ought or may Dispute nor when there may arise a Doubt in any one of them may they interpret it for in Doubtful and obscure Passages if any Word conteins two meanings the Kings Mind and Interpretation is to be expected when as he that made and Granted ought to Interpret it The Barons and Bishops as often as they had a mind to Quarrel with the King Clamored against him for not observing the Charter of their Liberties and he thought they Extended it too far Thus they began and as oft as they pleased could improve these Clamors almost into a perfect Rebellion especially if they prefaced them with the Invasion of the Liberties of Holy Church for that then by the Assistance of the Clergy and Religious equally influenced the People and moved them to Sedition and Tumult as pretended Oppression of Conscience and Destroying their Religion by the Management of the Dissenting Brethren do at this day From hence it was they stifly insisted upon it to have a Power to * See Answer â—o the Rights of the Commons asserted â— 131 132 c. choose the Justiciary or Chief Justice and send into the several Counties Itinerant Justices such as might Interpret the Points of the Charters and Execute the Laws to their Advantage and according to the Humor and Clamor of the People of the Faction But notwithstanding their objecting to the King his neglect and non-observation of the Charter they either would not be or thought not themselves obliged by it for besides what hath been hinted in the General Preface fol. 40. B. they used and practised Arbitrary Dominion and Power over their Tenants and Neighbours refusing to be Justified that is to receive Justice from the King and his Court or to observe the Articles of the Great Charter which concerned them For Remedy whereof the 1 2 3 4 5 20 and 22 Chapter of the * Pulâ—on's Staâ—utes f. 16 17 c. Statute of Marleborough made in the 52d year of Henry the Third were provided So that we see those Factious Barons when they had secured their own Liberties rather made use of them to Oppress than Relieve their Tenants and Neighbours The Practices of these Men were not well understood by our Ordinary Writers who have nothing but what they commonly find in the Monks the only Historians of those times and they Wrote the Actions of Kings and Great Men and rendred them good or bad as they were more or less Kind and Beneficient to the Church Church-men and themselves and Extolled or Defamed them as they appeared for and favoured their Ecclesiastic Liberty Who would not think Simon Montfort Earl of Leicester a great Patron of the Liberties of the People a Saint an innocent Person and good Subject that barely reads the Monks of those and succeeding times
and are published by the same Worthy Author Besides Patricius came hither There An. Dom. 433. and in this Epistle enumerates 12 Brethren he found there and gives some of them pure Saxon Names when as the Saxons came not into Britain until the Year 449. as Bede Reports or in 458 Bede Eccles Hist lib. 2. c. 5. as the same Story of Glastonbury in the next Page Line 20 seems to intimate Nor was this History either Notorious or Current in V. Bedes time Nero Claudius Caesar Anno Dom. 62 63 63 c. Titus Flavius Vespasianus Anno Domini 70 71 c. for he takes not the least notice of it nor have any of the Moderns with any reasonable probability confirmed it Nero having Kill'd himself from the time of Trebellius Britain was Rul'd by Lieutenants of the Legions in equal Authority only Caelius was most active and dared most until after the short Reigns of Galba and Otho Suet. Nero. c. 49.647 Vectius Bolanus Governor in Britain Tacit. de vit Agric. c. 6 17.458 There Lib. 3. Histor c. 44.380 Vitellius having obtain'd the Empire sent hither Vectius Bolanus who was not much unlike Trebellius save that by the mildness of his temper in stead of striking fear and terror into the Britains he had procured their love and affection who took occasion from his easiness and the Divisions and War that happened from the Contention of Vitellius and Vespasian for the Empire to revolt in several parts of the Isle and some of them openly to declare in favor of Vespasian who had behaved himself nobly and honorably in Britain in Claudius his time so that for this cause Bolanus refus'd to send any of the Legions or to give Vitellius any assistance from hence who being slain his Death ended those Civil Dissentions Suet. Vitell. c. 17.725 Tacit. de vit Agric. c. 17.458 Petilius Cerealis Pro-Praetor in Britain An. Dom. 73. Brigantes Overcome So soon as Vespasian had with the whole Empire recover'd Britain he employ'd there great Captains and a Powerful Army Petilius Cerealis his Lieutenant struck terror into the Britains invading the Country of the Brigantes the most Populous of the whole Province the greatest part whereof after many bloody Battles he either Conquer'd or Wasted by which Action he much abated the hopes and courage of the Britains nor was the Reputation of his Successor Julius Frontinus Julius Frontinus Succeeds him in the Lieutenancy A. D. 76. The Silures Subdu'd Agricola succeeds him A.D. 79. There c. 18. lessened by his Fame he subduing the Silures a strong and Warlike Nation not only by fighting with the Men but encountring Mountains Streights and places of difficult access In this condition Agricola found Britain when he came in the middle of Summer The Roman Soldiers being as it were secure and their Enemies taking every opportunity of advantage against them the Ordovices a little before his Landing had destroy'd a Wing or Brigade of Horse that lay upon their Borders The Country alarmed with this beginning and being inclined to War allowed the Example yet some stayed to see how it would affect the new Lieutenant Then Agricola although the Summer was spent and the Cohorts lay dispersed in the Province and the Soldiers presuming of Quiet that Year judging it better to secure the suspected places then make any new attempt resolved to meet the Danger and drawing together the Legions and some Auxiliaries and because the Ordovices durst not descend into the Plain he himself to incourage the Army Marches first in the Front up the Hills The Ordovices almost Extirpated and by this Enterprise he almost destroyed the whole Nation and following his Success he designs the taking of the Isle Mona from the Possession whereof Paulinus had been revok'd by the General Insurrection of Britain But Ships being wanting his Policy and Resoluteness devised a Passage for he commanded the most choice of the Auxiliaries to whom the Shallows were known and who according to the Custom of their Country were able to Swim over with Horse and Arms suddenly to Invade them which so Amazed the Inhabitants who expected Ships and Boats to Waft them over Titus Flavius Vespasianus Anno Dom. 70 71 c. That now believing nothing could be hard or invincible to Men of their Resolution begged Peace and yielded the Island Thus Agricola became great and famous Mona â—ielded because at his first entrance he used that time in the atchievement of laborious and dangerous Enterprises which others spent in vain Gratulations and Ambitious Ceremonies He called not Success and the Depression only of People subdued a Victory but understanding the humors and inclination of the People and taught by the experience of others That Arms prevail little where Violence and Injuries are permitted he resolved to cut off all causes of War beginning first to Reform his own House and Family The Wisdom of Agricola he committed no Publick Affair either to his (b) Liberts were such as were Manumitted from Bondage or Slavery Rosin Ant. lib. 1. cap. 20. Liberts or Slaves he received no Soldier near him upon private affection or the Commendation and Petition of Centurions There c. 19. but elected and preferred the best and most serviceable he observed all things but punished not all Faults small ones he Pardoned and for great ones used a suteable Severity not always animadverting upon Offenders but oft-times satisfy'd with Repentance he chose rather to prefer such to Offices and the Administration of Affairs as were not likely to offend then after the offence to punish and remove them And Justice he equally imposed the payment of Corn and Tribute taking away the Exactions and Fees of Officers heavier then the Tribute it self for the Publicans in former time forced the People to wait at the Barn Doors which were shut against them first to buy Corn of them at dear rates and afterwards to sell it them again cheap and at their own price they were also often appointed by the Purveyors to carry Provision from places near one Winter Camp to others far off and out of the way taking a composition of such as would be excused There c. 20. By Repressing these Abuses and Extortions in his first Year a good Opinion was conceived of Peace which either by the negligence or partiality of former Lieutenants was no less dreaded then War By his sudden Incursions and Assaults the Summer following An. Dom. 80. Agricola's Arts to Subdue the Britains and cause them to submit by his Prudence Diligence and Activity in War he very much terrify'd the Britains and then again he would forbear them and assay to reduce them by Invitations and Allurements to Peace Whereupon many Cities which before would not submit gave Hostages and received Garrisons There c. 21.459 His Practices to change their Manners The next Winter he spent in most wholesom and subtil Counsels and Designs for that he
Heraclitus as Spartian and the North part to Virius Lupus where the Meatae Spart in Sev. c. 6.339 Dio. lib. 75. (p) The Inhabitants of Northumberland and the Lower parts of Scotland near Hadrians Wall assisted by the (q) The Inhabitants of the North parts of Scotland Maeatae Caledonians Camb. Brit. 701. beyond Antoninus Pius his Wall attributed to Severus now commonly called Grahames-Dike Caledonians withstood him and forced him to purchase Peace with Money Not long after the Emperor was informed by Letters from the Prefect of Britain Virius Lupus That the Barbarous People Herod lib. 3.82 by Incursions wasted the Country and that there was need of a greater Force or his Presence to repel them Severus goes into Britain Severus joyfully receives this News and being naturally desirous of Glory after his Victories in the East he prepares to erect Trophies in Britain and besides to take off his Sons whom he carried with him from the Pleasures of Rome Aged as he was and much afflicted with the Gout There 83. being for the most part carried in a Horse-Litter yet came thither sooner then he was expected The Northern Britains daunted at his coming and the Forces brought with him as also with other great preparations against them sent Ambassadors to seek Peace and to excuse their former Delinquency Severus Antoninâ—s Bassianus Caracalla c. Geia c. But he purposely delaying them being ambitious of Victory and the Name of Britannicus while he prepared all things for War and then dismissed and sent them home with an ineffectual Answer Anno Dom. 209. Severus desires the Name of Britannicus Herod lib. 3.83 Dio. lib. 76. His first care was to lay Bridges over the Bogs and Morasses that his Soldiers might stand firmly pass easily and fight safely and having Marched his Army beyond the Rivers Bulwarks and Rampiers which distinguished the Roman Limits from the Barbarous Britains or into Caledonia as Dio there were many Tumultuary Fights and Skirmishes the Romans being every where Victors but the Britains easily saved themselves by retreating into their Fastnesses There lib. 76.867 His great Labor to Conquer the Britains Q. How these two Reports agree amongst the Woods and Bogs almost naked yet Dio reports this Expedition into Caledonia somewhat otherwise and says That he passed thorough it with great difficulty and that to make his way he cut down Woods digged through Hills made Causeways over Bogs and Fens and Bridges over Rivers that there was no Fight or Battle nor did the Enemy ever draw out upon them or appear in a Body they only sometimes turned out some Sheep and Oxen thereby drilling the Romans into Ambushes by which means and by reason of the Difficulty of the March many being killed by themselves that were not able to continue it there died Fifty Thousand yet did not Severus give over till he came to the utmost parts of the Isle although by reason of his Age and Weakness he was carried in a Horse-Litter forcing the Britains to make their Peace The Britains yield up part of their Country and make Peace Burton upon Anton. Itener 63. Severus Repairs Hadrianus Wall Spart in Sev. c. 18.355 Camb. Brit. 652. There 868. by yielding up a great part of their Country Conditioning also to lay down their Arms to contein themselves within their own Mountains and that they would make no Inroads or Invade the Roman Province which he had by the help of the Sixth Legion Bounded and Fortify'd with a Stone Wall of 12 Foot high and 8 Foot Thick with Towers and Battlements in the same place and Tract of Ground where Hadrians Wall was and drew it from Sea to Sea from whence he was called Britanicus the Ruines of which Cambden viewed When he returned into the Province he committed the Government thereof for Civil Causes to his youngest Son Geta Aemilius Paulus Papinianus the Famous Lawyer being appointed to assist and direct him Zosin lib. 1.6 Papinianus appointed Governor to Geta. who as Chief Minister of Justice under him had his Tribunal at (r) The City of York Histor August varior 745. which was the Station of the Beloved Legion of Severus called Sexâ—a Vectrix Eboracum To Bassianus Antoninus the Eldest he commits the Command of the Army But no sooner was Severus come from amongst them but the Britains Arm again wherefore he calls together his Soldiers Commands they should Invade them Severus Voweth Anno Dom. 212. and kill Man Woman and Child yet before his Commands were executed worn out with Labors Old Age Infirmities and Grief for the wickedness of his Son Antonine he died at Eboracum Herod lib. 3.85 After whose Death Antoninus Caracalla his Impious Son put to Death the Physitians because they dispatched not his Father according to his Commands Caracalla his Cruelty nor did his Cruelty spare any one that had been advanced by or shewn any respect or honor to his Father he practised by Bribes and Promises with the Soldiers Antoninus Bassianus Caracalla c. and Geta c. Divus Aurelianus Aurelius Probus Carinus Dioclesian and Maximianus An. Dom. 209 271 278 c. to declare him sole Emperor which when he could not effect for the kindness and affection they had for his Father who had appointed his Brother Geta equal with him in the Empire he made Peace with the Britains received Hostages and departed to Rome From this time of his leaving the Island all Authors are silent concerning what was done here for many years together only 't is thought some of the 30 (Å¿) So they called all the Chiefs and Leaders of Rebels Tyrants as Lollianus Victorinus Posthumus the Tetrici and Marius in the Reign of Gallienus might Usurp the Government here where their Coyns have been found in great quantities In the time of Aurelianus Proculus and Bonosus at Agrippina Camb. Brit. 50. (t) Colonia Agrippina Colon upon the Rhene in Germany the Chief City of that Electorate Invaded the Empire and Usurped Britain Spain and (u) Afterwards called Gallia Narbonensis it contained those parts of France which are now called Languedoc Savoy Dauphine or Delphinate and Provence Britan. 50. Gallia braccata The latter of whom being overcome and vanquished by Probus hanged himself and gave the occasion of the Jest An. Dom. 265. An. Dom. 271. c. Vospic in Probo c. 18.942 Probus Idem in Bonoso c. 15.971 Zosin lib. 1.36 That there was a Pitcher hanged up not a Man he being noted for his excessive Drinking After that Probus by the means of Victorinus a Moor prevented another Rebellion in Britain for calling to him Victorinus he upbraided him with the Seditious Practises of him whom he had recommended to him for (x) Thought by Cambden to be Coâ— Lalianus Governor of Britain and sent Victorinus to Correct him who by a witty Stratagem not mentioned by the Author slew the Traytor Ibid. lib.
Areani were found guilty in this Conspiracy who being corrupted with Rewards often discover'd the condition of the Roman Affairs to the Barbarous People Ibid. lib. 28. c. 7. Theodosius recall'd Theodosius after these Atchievements being recalled was accompanied to the Sea-side with the general Favor and Applause of all Men and passing the Sea with a gentle Gale came unto Valentinian by whom being receiv'd with much joy and affection he was made * Here to describe this Office Master of the Horse in the room of Valens Jovinus sometime afterwards Froamarius whom Valentinian had made King of the (r) They were Inhabitants of the Town and Country of Weisbaden on the North-side of the Rhene right against Ments an Appendant of the County of Nassaw or the Country thereabouts Bucino-bantes Ibid. lib. 29. c. 9. Anno Domini 374. upon fresh Excursions and Devastations made upon the new acquired Country was sent hither with power of Tribute over the Alemans which were then much valued for their Number and Courage Gratian the Eldest Son of Valentinian by Severa Gratianus Valentinianus Junior Theodosius Anno Dom. 374. growing towards a Man his Father made him his Collegue in the Empire and he succeeded him after his Death with whom Valentinian the younger his half-Brother by his Step-Mother Justina but then four years old was elected his Partner in the Empire by advice of the Council and General consent of the Army Ibid. lib. 27. c. 5. Anno Domini 37. Ibid. lib. 30. c. 12. Zosim lib. 4.751 Anno Dom. 379. Theodosius chosen Emperor by Gratian and Ruled in the East Zosim lib. 4.760 But Gratian finding his Affairs perplexed the Goths and other Barbarous People Invading the Empire on one side and the Nations upon the Rhene Infesting it on the other not thinking himself sufficient for the Administration of it after the Death of his Uncle Valens chose Theodosius Son to that Theodosius that had so bravely behaved himself in Britain to be his Consort and sharer with him in the Empire who Ruled in the East Things being in this state and condition Gratian being an easie Prince listening to Flatterers and such as are wont to corrupt and debauch the kind and mild dispositions of Princes received into his favor and into the Army certain Renegado (Å¿) People of Europaean Sarmatia and thought by some Alans Who to have Inhabited that Country which is now called Lithuania but more rightly they were Seated near the Alanian Mountains not far from the head of Tanais Alans unto whom he gave great Rewards and trusted them with the Management of his greatest Affairs neglecting at the same time his own Soldiers who for this cause began to Murmur against and hate him the Soldiers thus kindled against him especially those in Britain and excited by Maximus a Spaniard by Birth Maximus Excites the Soldiers to Sedition and fellow Soldier with Theodosius there who taking it ill that Theodosius should be thought worthy of the Empire and himself not thought fit to have any honorable Employment in the Government more and more irritated the Soldiers against Gratian and they being ripe for Sedition were easily prevailed upon to Salute Maximus Emperor Anno Dom. 381. He is Saluted Emperor Zosim Ibid. and having deliver'd him the Imperial Diadem and Purple they forthwith passed the Sea with him to the Mouth of the River Rhene the Armies in Germany and the Neighbor Nations with much satisfaction approving the Design Gratian prepares to suppress this Rebellion and Fight Maximus but being deserted by the Army he had gather'd together seeing his Affairs desperate he fled with 300 Horse toward the (t) Mountains that separate Germany and France from Italy Alpes and from thence through (u) Singidunum rather a City of Upper Moesia seated upon the Danube Six Leuâ—s Eastward from Taurinum or Belgrade now called Zendorin of the Greeks Simedro and in Modern Latin Semandria Rhaetia Noricum Pannonia toward (x) Then the Second City of Italy and Chief of the Carni now Aquilegia seated on the North-East part of the Top of the Gulfe of Venice and in that Dukedom Upper Moesia whether being pursued by Andragathius Master of Maximus his Horse passing the Bridge at (y) They were Northern People Vandals Whence Sheringhâ—m de Orig. Angl. 210. Ibidem who came out of Scythia from about the Lake Maeotis and River Tanais c. and were of Gothic original they were called Vandals from the word Wandelen signifying to Wander or rove up and down because they often changed their places of abroad at last they fixed upon and near the Coasts of the Baltic Sea toward Germany which from them with many other North-East Countries adjoyning was called Vandalia aâ— Meckleburgh Pomerania Polonia Silesia c. Sigisdunum Gratian slain he was overtaken and slain Theodosius at the Instance of Justina Mother to Valentinian Anno Dom. 3â—3 prepares to encounter Maximus whose Army being defeated in Pannonia he fled to Aquileia Theodosius Major Valentinianus Secundus Honorius Arcadius Anno Dom. 383 c. where he was taken deliver'd to Theodosius and presently put to Death and to young Valentinian was restored whatsoever his Father or his Brother Gratian had possessed The Scots and Picts taking advantage when the Army and the Flower of the British Youth was transported by Maximus most of which were either slain An. Dom. 388. Zosim lib. 4.769 770. Young Valentinian restored Gildas c. 11. The Scots and Picts invade Britain They Waste it Socrat. Hist lib. 7. c. 12. or seated themselves in Amorica now Britanie in France miserably spoiled and wasted the Province for the opposing and reducing of whom Chrysanthus the Son of Marcian Bishop of Constantinople was made Vicar in the British Isle who behaved himself worthily and with great praise but whether he totally subdued these Northern Enemies or whether Stilicho who was by Theodosius appointed Tutor and Governor to Honorius after his Death or some other sent by him as Claudian seems to affirm reduced them it no where it appears not long after the Empire being distressed the Legion for this purpose sent into Britain was recalled Chrysanthus sent to repress them and Stilicho Claud. Paneg. 2. de laud. Stilich Anno Dom. 395. The Legion sent with them recalled The Vandals c. Invade Gallia and Germany Zosim lib. 6.824 825. They Affright the British Forces Anno Domini 409. They Mutiny and set up Marcus Gratianus and Constantin successively He transports the British Army into Gallia Soâ—omen lib. â— c. 15. Constantin taken Anno Dom. 413. and put to Death Aâ—â—icola intrâ—ceth Pelagâ—anisme into Britain An. Dom. 429. Bede lib. 1. c. 17. and the (z) Sueves Whence People of the same Origin with the Vandals so named from the Word Schweben of the same signification with Wandelen and might be the same People under divers Names for they are also affirmed by very good
or à Negative or Privative and Dal which signifies Distinction or Difference that is without Distinction or Difference and imports a just impartial Judgment it was of two sorts by Fire or Water by Fire when the Person accused carried in his bare-hand a red-hot Iron some few steps which if it weighed but One Pound was called Single Ordal if Three Pound Treble Ordal or when he walked bare-foot and blind-fold over and between certain red-hot Plough-shares placed at a certain distance if in doing this the Party was Burnt he was pronounced Guilty if not he was accounted Innocent Water Ordal was either when they cast the Accused into Water Water Ordeal What. and if they did Swim were Judged Guilty if they Sunk Innocent or their hands and armes were put sometimes up to the Wrist sometimes up to the Elbow in Boyling hot Water if they were Scalt they were esteemed Guilty if not Innocent [2.] Ll. Longob lib. 1. Tit. 9. c. 39. Glanv lib. 14. c. 1. in fine The Forms Exorcisms c. used in these Tryals The Noble and Freemen were Tryed by Fire Ordal the Peasants and Servants by Water Ordal The Forms Exorcisms Conjurations Offices Litanies Lessons Gospels and Celebration of the Communion used in all sorts of Ordal may be seen in the latter end of Marculphs Formulae where they are the most exact and ample I have seen Also some part of them in Aethelstanes Laws Spelman's Glossary fol. 436. and Origin Jurid fol. 86. The Judgment or Tryal by Cold-Water [3.] Marcul form 1301. Instituted to prevent Perjury Marculph reports was instituted instead of Swearing at the Request of Lud. Pius by Pope Eugenius the Second who obtained the Papacy Anno Dom. 824. and was Pope only three years commanding all Bishops Earls Abbots and all Christian People â—ithin his Empire to defend the Innocent and examine the Nocent by it lest being perjured upon the Reliques of Saints they should destroy their Souls See more in Olaus Wormius Monument Dan. lib. 1. c. 11. de Ordalia Ordeal (b) This way of Purgation or Clearing of themselves from Crimes Debts nay some times Heirs Swearing themselves [4.] Ll. Alaman Tit. 2. §. 2. How and how many Sware antiently Ewa from the Saxon word aew or aewe Jus or Lex in the Preface to Ina's Laws in Lambard See Somners Sax. Dict. in the word aewe Into Estates when the Chart of Donation was lost or burnt is very frequently mentioned in all the German-Laws thus expressed Tertiâ quintâ sextâ duodecimâ manu c. jurare And in the Alaman Laws Tit. 6. being de juratoribus Quales quantos secundum ewa homo habere debet of what condition and how many sacramentales sive conjuratores fellow-Swearers according to the Law a Man ought to have the number of which always varied according to the degrees of the Crime or Matter objected after several cases noted wherein the accused person was to Swear cum uno Sacramentali one only to Swear with him or Tertiâ vel Sextâ manu or with Three or Six The manner of their Swearing is prescribed Ibid. §. 7. Ista Sacramenta debent esse jurata referring to the Cases before-mentioned Vt illi conjuratores manus suas super Capsam ponant ille solus cui causa requiritur tantum dicat super omnium manus manum suam ponat ut sic illi Deus adjuvet vel illa reliquiae ad illas manus quas comprehensas habet ut de illâ causâ unde interpellatus est culpabilis non sit That is those Oathes referring to the Cases before-mention'd ought to be so Sworn that the Fellow-Swearers may put their hands upon the Case of the Reliques and he alone that Prosecuted shall say the words and shall put his hand upon all their hands that so God may help him or those Reliques to which he holds their hands as he is not Guilty of that Cause for which he is prosecuted Some shaddow of this practice we have yet in our Nation in Wager of Law in Actions of Debt without Specialty where the Proof is not clear on the Plaintiffs side the Defendant is admitted to wage his Law That is [5.] Nomothet verb. Law to take his own Oath that he Oweth nothing at all to the Plaintiffe and to bring as many credible persons as the Court shall Assigne to make Oath that they believe he Swears true Oath and (c) Battel or Duel called Wehadine by the Boioarians Decret Tassilon §. 10. Ll. Boioar. Tit. de leg populari §. 5 6. Camfroic decret Tassilon §. 6. he that had his Land taken from him by another might prove it to be his by due Witnesses but if the Invader or Occupier contradicted that Proofe Judgment by Battel it was to be determined by Battel campo adjudicetur Ll. Saxonum c. 15. Siquis Adalingum occiderit 600 Solid componat si negaverit cum 12 juret aut in Campum exeat Ll. Angl. Werin Tit. 1. §. 1 3. That is if any one kills a Noble Man he shall pay 600 Shillings if he denies it he shall clear himself by 12 Compurgators or go into the Field id est Trie it by Battel Si mulier maritum veneficio dicatur occidisse c. If it be said a Woman Poyson'd her Husband her next Relation may Right her by Battel but if she hath no Champion let her be Tryed by Nine red-hot Plough-shares ibid. Tit. 14. All cases of Theft and Wounding which deserve a Mulct of 2 Shillings and upward to the highest Mulct or Composition are to be judged by Battel if the Fact was denyed Ibid. Tit. 15. This way of Judgment by Battel was so prevalent and frequent amongst the Lombards in Italy in the time of King Rotharis who began his Reign about the Year 640 according to Helvicus that although as he sayes they were uncertain concerning the Judgment of God And that they had heard many had by Duel or Battel lost their causes without reason yet such was the Custom of his Nation the Lombards and so pertinacious they were in it that he could not prohibit that wicked Law Ll. Long. lib. 1. Tit. 9. c. 23. More of this and the manner and circumstances of Battel or Duel see in Ll. Alaman Tit. 84. and in my Preface to the Norman History or in the words Battel or Duel in my Glossary There was besides these another way of Examination and finding out Guilt and Innocency Tryal by a Decretory Morsel or Eucharist in some Criminal Causes mentioned by Lambard in his Glossary by a Judicial or Decretory Morsel called by the Saxons Corsned which according to his Interpretation signifies Execrated Bread But Mr. [6.] Glossary in verbo Somner better derives it from the same Cors a Curse and Snaed or Snid a Snidan to cut so that it signifies an Execrated Particle Morsel or Peice This is mentioned in the Purgation of Regular and Secular Priests who if accused
sent his Letters all over the Country that privately on St. Brice his day at night which was the thirteenth of November the Danes should be (n) This Massacre seems suspitious for that the Danes being dispersed all over the Nation and that it must be a business of time to give every place notice of the Design 't is scarce conceivable it could be carried on with so great secresie required to such an universal Surprize besides the Reporters of it agree not in the time or manner Hen. of Huntington says it was in the year 1002. when the Danes lived peaceably and quietly in the Nation Matt. of Westminster affirms it to be done in the year 1012. by the advice of Huna King Ethelred's General upon the Insolent behaviour of the Danes after Peace made with them Hoveden agrees with Huntingdon in the year and says that King Ethelred not long after he had made Peace with them commanded that all the Danes great and small of both Sexes inhabiting England should be killed because they sought the Dominion of the whole Kingdom and would have deprived him and his Nobility of their Lives If there was any such Massacre it seems rather to have been done in the day time by Assemblies of the People called together under pretence of Muster or some other publick business which might be an unsuspected cause of their meeting Edric Ib. A. D. 107. Hoveden Anno codem Malmsbur l. 2. c. 10. What he was His abominable Treason massacred Hen. Hunt fol. 206. a. n. 50. A. D. 1002. Who says in his Youth he received ' this Story from very antient People which was attempted and they were all killed and destroyed accordingly In this Massacre amongst the rest Lady Gunhild Sister to Swane King of Danemarke who after she came hither received Christianity with her Husband Palingus and was pledge for the Danes observing the Peace was by the fury of (o) One whom Ethelred had from mean degree advanced to be Earl or Duke of Mercia and given him in Marriage his Daughter Edgith he was called Sheen from his unsatisfied Avarice he was vastly Rich not by Nobility or Birth but made so by his Tongue and Impudence he was Crafty to Dissemble Cunning to Invent under pretence of Fidelity he dived into the King's Councils and discovered them as a Traytor being sent to treat of Peace he encouraged the King's Enemies to War Ever when he saw Ethelred or his Son Edmund had any considerable advantage he by some trick or other diverted them from the use of it he was sometimes on one side sometimes on the other where he could get the best Plunder and most Money Edric Earl Godwin's Fathers Brother Gunhild Sister to Swane King of Danemarke massacred De gest R. R. l. 2. c. 10. says Malmsbury barbarously murthered The News of this Bloody Tragedy moves the Danes to revenge and the year following King Swane with a mighty Navy invades England by the experience of his former Invasions and Descents there he well enough understood what advantage he could make of the English He invades England with a mighty Navy Presently over-runs a great part of the Country And useth great Cruelty presently overran a great part of the Country his Sword made no more difference between Ages Sexes and Conditions of People than the Fire did of Houses or their Materials the Cruelty and Violence of one killing and the Fury of the other destroying all it met with By Ethelred's command Hen. Huntingd. A. D. 100â— Every 310 Hides of Land to set forth a Ship and every nine Hides a Soldier Hoveden in that year This Preparation came to nothing Ibidem Lord-Danes Lurdan whence The Danish Massacre suspitious To obviate these dreadful Miseries and frequent Invasions Ethelred commanded that every 310 Hides of Land should set forth a Ship and so proportionably for a greater or lesser Quantity and every nine Hides a compleat Arms or Soldier but this great Preparation by ill management and storms came to nothing eighty of the Ships at one time being wracked by ill weather The next year came another Fleet of Danes under the leading of Turkill Ethelred Danes Swane Cnute A. D. 1013. and soon after a second under the Conduct of Heningus and Anlaf all Danish Princes the former whereof in the year 1012. was with 45 Ships sworn to serve Ethelred Two Fleets of Danes arrive under the Conduct of Turkill Anlaf and Hemingus Turkill with 45 Ships takes Service under Ethelred The People submit to Swane Emma with her Children departs into Normandy Ethâ—lred follows them Hen. Hunt A. D. 1013. Swane imposeth a great Tribute upon the People Hoveden Anno eodem Turkill doth the same Hunting A. D. 1014. Swane dies suddenly Ibidem Cnute made King by the Danes The English recall Ethelred he finding them Food and Rayment Swane proceeding victoriously almost where-ever he came received the submission of the People and Emma Queen to King Ethelred with her two Sons Edward and Alfred went into Normandy to her Brother Richard Duke thereof and after Christmass in the same year Ethelred followed them thither from the Isle of Wight all the People esteeming and receiving Swane for their King whom he commanded through England to make great Provisions for his Navy and to pay almost an intolerable (p) This was very heavy without doubt for in one year which must be this Ingulph Hist 506. b. 507. a. The Abbey of Croyland paid 2000 Marks in one year to Swane the Abbey of Croyland alone paid 2000 Marks to Swane besides several years before it paid to Ethelred 400 Marks a year and 200 l. for building of Ships Ingulph says this was A. D. 1018. when as others say Swane died A. D. 1014. therefore it was Cnute or the other Historians were mistaken in their Chronology Tribute In like manner Turkill sent out his commands every where the like should be paid to his Fleet that lay at Greenwich Swane thus obtaining the Throne of England in the beginning of his Reign died suddenly After his Death the Danish Army and Danes make Cnute his Son their King and the English upon condition of his better Government send to Ethelred to return out of Normandy who sending for his Son Edward with promise of doing all things worthy of himself as King and the English People came himself soon after and was ioyfully received of the whole English Nation Cnute lay then at Gainsborough to whom the People of Northumberland and Lindsey in Lincolnshire submitted into the latter of which Ethelred hearing of their submission marched and destroyed it with Fire and Sword Cnute troubled that for his sake the Country should suffer sailed to Sandwich where he left the Hostages given to his Father Cnute departs and returns with 160 Ships Ib. A. D. 1016. Edric betrays Ethelred first cutting off their Hands and Noses and so departs yet in as short a time as might be returns again
the Land he passed away or to give so much other Land in lieu of it to him that vouched him to warrant it C. 51. 67. Wrong in Word or Deed as Battery and Defamation were Actions personal Actions of wrong Possession of Fees Moveables or Chattels were possessional De Tort faicte Tort. Wrong or Tort was the Fountain of all Contention C. 5â— Forcible Entry Forcible Entry and breach of the Peace contrary to the Dignity of the Duke and Peace of the Country C. 53. Gloss Tit. Court Pleas of the Sword By Charter from the Duke Knights Earls Barons had Courts c. Of all these Pleas and also Pleas of the Sword the Duke hath his Lay-Court And also by Grant and Charter from the Duke Knights and such as hold freely Earldoms and Baronies and other Dignities Feudal whether Military Fees or Frank Sergeanties or other Frank or Free Fees have their Courts of their Residents in simple Plaints And of light and weighty Matters of Moveables and Heritages and of Thefts yea although they were to be determined by * Glanv l. 8. c. 9 Battle But such as were not noble Tenents or held by vile Services as Bordiers and such as performed drudging and villain Services had no Court or Vsage over Tenents in such Fees C. 52. Tit. de Haron our Hue and Cry There was a Court of the Cry called Haron with us Hue and Cry to which all that heard it were bound to go And there was an Inquest whether the Cry was rightfully or wrongfully levied for it was never raised but in Causes Criminal as for burning Houses for Theft Murder Robbery or other great and apparent Mischiefs or danger They begun at the place the Fact was done and pursued the Malefactor from Parish to Parish with noise and Arms until if they could they had taken and rendred him to Justice and for neglect in the Parish or Peoples making this Cry and pursuit they made fine to the Duke This was called a Plea of the Sword or as we call it of the Crown because such Malefactors ought to be restrained by the Sword and Arms and ought to be put in Prison and bound Such Plaints are called Criminal Ibidem Plaints Criminal for which a man loseth Life or Member others are called simple by which the Malefactor is only chastised as a Child with a Rod. The Court of some Plaints is in the Vicount of some in the Assize Plaints in the Vicount Assize Exchequer of some in the Exchequer In the Vicount were only Holden Simple Plaints What Plaints in the Vicount and the amends of Defaults in the Assize and such Plaints as ought to have the term of fifteen days that is were holden from fifteen to fifteen days And such as were holden in this Court were called Pleas Vicountel Pleas Vicountel Every great Plaint as Breach of the Peace Cases Criminal Ib. Gloss K. What Plaints in the Assize and Exchequer Cases touching Noble Fees and all the like great Plaints could not be determined but in the Assize in the Exchequer or before the Prince where the Determination was Recorded And for this reason these Courts were furnished with more Sage men than others that the Plaints might be more discreetly determined The Exchequer was an Assembly of high or Superior Justiciers C. 56. What the Norman Exchequer was to whom it belonged to amend the Judgments of the Bayliffs and lesser Justiciers and to correct their Errors to render right to every man without delay as from the mouth of the Prince to preserve his Rights and to recall such things which had been evilly and fraudulently granted away or put out of his hands and to observe every where as with the Eyes of the Prince those things which appertained to his Dignity and Honor. The ordinary way was Ib. in the Gloss The Office of Bayliff and Vicount that the Vicount corrected the ill Judgments and Errors of the base Justicies under him and the Bayliff those of the Vicount and the Exchequer those of the Bayliff A Plaint or Clamor is C. 57. A Plaint or Clamor what Plantiff bound to prosecute when any one shews by complaint to the Justicers the wrong that is done him who have power to receive them and to take Pledges of the Complainants that they will prosecute them The Plaintiff thus bound C. 58. if he appeared not in Court at the day appointed him and if his Adversary then appeared he had leave to go without day if the Suit were concerning a Lay-Fee To go without Day what and the view were made and the Plantiff pursued not his Claim but made Default he was not to be heard any more in that Matter To lose by Default And if the Defendant made Default in that Case he ought to lose the Seisin of the Fee which was shewn or viewed C. 62. Glanv l. 2. c. 3. Witnesses c. Witnesses sware to what they heard and saw and were ready to do as the Court should award no man to witness in his own Case nor his Heir for him nor any Partakers in the Plaint or Relations C. 63 64 65. Pleaders Conteurs Attorneys There were Pledeurs Conteurs and Attorneys that pleaded and managed Cases in Normandy to these are answerable our Serjeants Barresters and Attorneys C. 66. View before Tryal Land demanded by Battel or Writ of Right Knights c. made the view There were also views of several things required before Tryal view of the Fee view of the Sick person view of the Mischief done view of the person slain view of the defloured Virgin c. The view of the Fee or Land in question when it was demanded by Battel or a Writ of Right and generally in all Pleas or Controversies concerning the Inheritance was made by four Knights and twelve lawful-men Novel Disselsin view made by Knights Languor view made by Knights In Novelle Disseisines and all Plaints brought after the manner of Novel Disseisin which were for Possessions the view might be made by twelve lawful men without Knights but it were better if Knights were there if they might easily be had The view of Languor or Sickness was made by * Glanv lib. 1. c. 19. The same here four Knights The view of Murder Homicide Mayheme or wounds inflicted by force was made after the same manner The view of a Virgin defloured was made by seven Matrons of good Credit C. 67. C. 51. Tit. de Querelles Pleas or Plaints some are personal some real personal either by Deeds or Words by Deeds as by Battery or Wounds C. 68. Glanv l. 14. c. 3 Murder Battel In Suit of Murder R. complains of T. that he Feloniously murdred his Father being in the peace of God and the Duke and that he was ready to prove it c. If T. denies it word for word and offers gage to defend
Normandy And not long after the King of France died Ibidem D. King Henry dies Leaves his Son to the care of Baldwin Earl of Flanders and Philip his Son a Child succeeded him between whom and the Duke there was always a firm Peace he being left by his Father under the Tuition and Protection of his Uncle Baldwin Earl of Flanders who was a great Assistant to William and whose Daughter [1.] Ibidem 183. D. Whose Daughter William had Married Matild he Married in the midst of these Tumults Insurrections and Troubles About the same time Galfrid * Ib. 188. D. Martell also died These Enemies dead he is at leisure to pursue his Design upon [2.] Ibidem 189. B. He claims Anjou Anjou to which besides the Gift of the King of France upon the conclusion of Peace between them after the Battle of Mortimer in Caux he had likewise a Title from Herbert Son of Earl Hugh whom Martel had Expelled He dying without Issue left William his Heir and willed his People they should seek for no other Lord but they set up Walter Earl of Mayn who had Married the Sister of Hugh [3.] Ibid. D. The Anjovins submit yet not long after being wearied with the Incursions of William they joyfully received him as their Lord. [4.] Gul. Pict 196. C. These Successes and the Fame of his Piety by founding endowing and advancing Churches and Monasteries spreading through France and the adjacent Countries brought a great frequency of Foreign Nobility to his Court as well Ecclesiastick as Secular some esteeming it a favour to be allowed to remain there others to observe and take Advice and some to enter into the Service of the Duke And it added much to his Glory that being at this time in an universal quiet [5.] Ibidem none daring to Arm against him that he provided for the security of Church and State [6.] Ib. 193. B. C. D. and 194. A. B. discouraging the Loose Luxurious and Prophane Ecclesiasticks encouraging the Sober Learned and Pious taking care also of the Cause of the Widow Poor and Fatherless by quickening the Execution of the Laws and where they were not sufficient for that purpose ordaining new ones In this Recess from War and Business He goes over into England See the Reign of Edward the Confessor and of Harold he went over into England as is related in the Reign of Edward the Confessor whither the course of this History is to be referred until the end of his Reign and also unto the end of the Reign of Harold This mighty Fame he acquired by these Actions and the opportunity he had given him [7.] Here in Ed. Confessor Of the easie Conquest of England The Clergy Ignorant and Debauch and Nobility Loose and Prophane c. of viewing and observing the chief Fortresses Cities and Castles when he was in England were no small Advantages towards the Conquest of it But that which made it easie and the Possession more peaceable were the irreconcilable Feud between Harold and his Brother Tobi the [8.] Malmsb vit Gul. 57. a. n. 54. ibid. b. n. 10. Mat. Par. vit Fred. Abb. 46. n. 30. Loosness Debauchery and Ignorance of the English Clergy and Nobility [9.] In the Manusc Book of Additaments fol. 79. b. citâ—d by Dr. Watts his Notes upon Mat. Paris fol. 3. the large Possessions of Religious Houses which if they had been in the hands of Temporal Lords would have enabled them to have made Resistance but being in their hands (m) William answered the Abbat of St. Albans giving him this reason of the easiness of the Conquest and quiet possession of England That if this were the cause the Conquest of England might be as easie to the Danes or any other that should make War upon him Ibidem and he should not know how to defend his Kingdom and thefore began with him and took away some of his large Possessions to maintain Soldiers for the defence of the Nation almost all his Lands and Lordships as 't is said there between Barnet and London Stone they neither would or ought to oppose him who they thought had right to the Kingdom And lastly The different and jarring Saxon Danish and Norman Interests which inclined them several ways See the Reigns of Etheldred Harold the 1st Harde-Cnute and Edward the Confessor the Saxon Nobility and People would have had Edgar Atheling the right Heir of that Line their King The Danish would have brought in Swain King of Denmark who claimed from Harde-Cnute and both perhaps against the Norman Interest as being lately introduced in the Reign of Etheldred by the Marriage of Emme except such as by the example of Edward the Confessor were inclined to and trained up in the Norman Modes and Customs Norman Bishops and Great Men before the Conquest who preferred many of that Nation to great Dignities so that in this time there was [1.] Scriptor Norman 1023. Robert Arch-Bishop of Canterbury William Bishop of London * In Append n. 9. al. Wulsus who obtained the Charter of the Liberties of that City from the Conqueror Vrsus Bishop of Dorchester in Oxfordshire the greatest Diocess in England all Normans Randulph Peverell in Essex Fitz-Scrobi in Salop Ralph Earl of East-Angles Danbin de Bear Hugolin his Chancellor and Steward Swein of Essex Alfrid the Yeoman of his Stirrop and many other Laicks Men of great Power and Reputation with the People who had several Employments here especially those placed to defend the Marches against the Welsh and called in for that purpose by Edward The Conqueror after the Battle of Hastings fatal to the English [2.] Pictav 204. C. D. The Conquerors March after his Victory at Hastings to Romney having buried his dead and appointed a stout Governor in that Fortress marched to Romney where having revenged himself of the Cruel Inhabitants so they are there called for the Slaughter of some of his Men by a mistake landing at that place he thence advanced to Dover whither though an innumerable Multitude of People had betaken themselves as to a place by reason of the Castle inexpugnable yet dismayed with the Conquerors approach the place with all readiness submitted to him Dover yields who after eight days Fortification of it marching from thence and leaving his sick Men there not far from Dover the Kentish Men of their own accord came in to him sware Fealty and gave Hostages for the performance of it The Kentish Men of their own accords come into William [3.] Ib. 205 A. B. c. Canterbury sends hâ—r submission Canterbury also sends her Submission and the next day he came to the Broken (b) In Latin Fracta Turris this place is somewhere in Kent and not far from Canterbury but where I know not Tower proceeding forward and understanding where Stigand the Arch-Bishop with the Earls Edwin and Morcar and others of the Nobility
mentioned his Holiness gained the first Poâ—ut of his Usurped Jurisdiction in England although William still retained the absolute Power of investing Bishops and seemed only to use the Advice and Assistance of the Legats in Ecclesiastical Matters for that no Decree or Constitution was put in Execution without his Royal Assent [8.] Eadmer ut supra n. 49. Lanfranc made Arch-Bishop An Do. 1071. In the first year of his Reign Lanfranc Abbat of Caen in Normandy a stout Man and very much skilled in Divine and Humane Affairs was made Arch-Bishop of Canterbury and Consecrated the fourth of the Kalends of Sptember or the Twenty ninth of August [9.] Malms de gest Pon. lib. â— fol. 117. a b. The Pope Decreed the Controversie about the Primacy between York and Canterbury ought to be decided in England Afterwards going to Rome for his Pall Thomas Arch-Bishop of York whom he had Consecrated went with him where Thomas propounding to Pope Alexander the Controversie between himself and Lanfranc about the Primacy and Subjection of the See of York to Canterbury and the three Bishopricks of Lincoln Worcester and Litchfield which he claimed as subject to York The Pope Decreed That the Cause ought to be heard in England and decided by the Testimony and Judgment of all the Bishops and Abbats of the whole Kingdom [1.] Spelm. Concil vol. 2. fol. 6. Anno Domini 1072. Sir John Danis Irish Reports fol. 89. b. After two Discussions one at Winchester in the Kings Chappel there in the Castle in the Solemnity of Easter and the other at Windsor in the Feast of Pentecost it was finally determined in the presence of the King Bishops Abbats and of Hubert Legat of the Roman Church as says [2.] Fol. 8. n. 30. Paris and many other Orders of Men met there upon the (o) The Conqueror commonly kept Easter at Winchester Whitsunday at Windsor or Westminster and Christmass at Gloucester at which times were present in Court all the Temporal Nobility Bishops Abbats c. through all England so that at those times he could hold a great Council or Synod at a days warning when he pleased and at those times were commonly held the Great Councils for all Publick Affairs occasion of that Festival [3.] Malms ut supra b. n. 20 30 40. The Church of York ought to be subject to Canterbury The Jurisdiction of York extended to the further part of Scotland Upon proof made by old Authorities and Writings that the Church of York ought to be subject to the Church of Canterbury and the Arch-Bishop of York to obey the Arch-Bishop of Canterbury in all things pertaining to Christian Religion as the Primate of all Britain That the Bishoprick of Duresm and all the Countries from the bounds of the Bishoprick of Litchfield and from the great River Humber unto the furthest part of Scotland should be the Province and under the Jurisdiction of York so that if the Arch-Bishop called a Council wherever he pleased the Arch-Bishop of York with his Suffragans were to be present there and give obedience to what should be determined That the Arch-Bishop of York ought to receive Episcopal Benediction from him and under Oath to make unto him Canonical Profession To these Constitutions the King Arch-Bishops Bishops Abbats and all these present agreed and as [4.] Hist Nov. fol. 9. n. 20. Eadmer says who had most reason to know best they were confirmed by the Testimony of the Kings Seal About this time he amended [5.] Cart. in Append. n. 11. The Ecclesiastical and Civil Jurisdiction distinguished the Episcopal Laws which had not been well observed by the Common Council of his Arch-Bishops Bishops Abbats and all the Chief Men of his Kingdom and Commanded by his Regal Authority That no Bishop or Arch-Deacon should hold Pleas in the Hundred concerning Episcopal Laws nor should bring any Cause pertaining to the Government of Souls before a Secular Judicature but that every one that had transgressed Episcopal Laws should be judged in a place where the Bishop should appoint according to the same Laws and Canons * This is left out by Mr. Selden f. 167 168. Not. in Eadmer No Sheriff Minister or Laick to meddle with Episcopal Laws and if any one was so obstinate as not to appear at the third Summons he should be Excommunicated and if need were the Kings or Sheriffs Power were to be added and further Commanded That no Sheriff Minister or Laick should intermeddle with the Bishops Laws Before this the Bishop sat with the Sheriff in the County Court or Turn and with the Hundredary in the Hundred Court if he pleased where they promiscuously determined Ecclesiastical and Secular Causes and from this time the separation of both Jurisdictions bear date And further out of the fulness of Ecclesiastical Power with which he thought himself invested in right of his Crown [6.] Cleopat E. 1. Bibl. Coâ—ton 1. vol. of the State of he Church ex Chart. Willielmi sub sigillo ibid. by the Assent of Lanfranc Arch-Bishop and Stigand Bishop of Chichester in a Council of his Bishops and Barons granted to the Church of St. Martin of Battle-Abby which he founded [7.] In Append n. 12. An. Do. 1086. all the freedom from subjection imaginable and that although it was within the Diocess of Winchester yet it should not be subject to the Bishop Great Priviledges granted by William to Battle Abby and that in his Visitation he should not lodge there nor in any of the Maners belonging to it and that in all things in the same Church and a League every way round about it the Abbat should be Lord and Judge The Violators of which Constitution were for ever anathematized by Lanfranc Archbishop Stigand aforesaid Walkelin Bishop of Winchester Wolstan Bishop of Worcerster all then present The Pope sent to William by his Legat Hubert to do him Fealty and pay him the Arrears of Peter-Pence but though willing to gratifie him in one he absolutely [8.] In Appest n. 13. The Conqueror refuseth to be Feudatary to the Pope denied the other and refused to become his Feudatary or Vassal for the Kingdom of England Archbishop Lanfranc in this Kings Reign held and presided in many Councils in one at London [9.] Spelm. Concil fol. 7 8. vol. 2. Anno Domini 1075. Bishopricks removed from Villages to Cities The Clergy not to give Judgment in loss of Life or Member wherein because it was forbidden by the Councils of Sardis and Laodicea that Bishops Sees should be in Villages therefore by the Kings Munificence and Authority of this Synod Bishop Hermannus removed from Sherborn to Salisbury Stigand from Selsey to Chichester Peter from Litchfield to Chester and afterwards Remigius from Dorchester a Village in Oxfordshire to Lincoln It was also Ordained in this Council that according to the Council of Eliberis and the Eleventh of Toledo both Cities in Spain that no Bishop or Abbat
of two orders Clergy and Laity [4] Hoved. f. 285. a. n. 10. The Church consists of two Orders Clergy and Laity Ecclesia Dei in duobus constat ordinibus in Clero populo Amongst the Clergy were Apostles and Apostolic men The Church consists of two Orders Clergy and Laity Bishops and other Governors or Rectors of Churches to whom the Care and Government of the Church was committed In Clero sunt Apostoli Apostolici viri Episcopi c. [5] Ibidem amongst the Laity were Kings Dukes Earls and other powers who transacted Secular affairs that they might reduce the whole to the peace and unity of the Church In populo sunt Reges Duces Comites c. And because it was certain that Kings receive their power from the Church Kings receive their power from the Church according to the Arch-Bishops Doctrine The state of the Controversy between the King and Arch-Bishop from his own Mouth and not That from them but from Christ therefore he had nothing to do to command Bishops to excommunicate or absolve anyone To force Cleres into Secular Courts or Judicatures To judge of Tithes of Churches To prohibit Bishops That they handle not or meddle with transgression or breach of Faith or Oath interdicere Episcopis ne tractent de Transgressione fidei vel Iuramenti and many other things which were written after this manner amongst his Customes which he called ancient Then after a [6] Ibidem n. 20. Citation of Scripture out of the Prophets Woe to those that make unjust laws and writing write injustice That do oppress the Poor in Judgment and do wrong to the cause of the humble of the people of God he goes on â—Let my [7] Ibidem His Speech or Epistle to the King Lord if he pleaseth hear the Counsel of his faithful one the admonition of his Bishop the chastisement of his Father Have no Familiarity or communion for the future with * That is Frederic the Emperor and such as adhaered to Pope Victor and rejected Alexander See here fol. 303. A. Schismatics for 't is known to the whole world how devoutly and honourably you received the Pope meaning Alexander how you honoured and cherished the Roman Church how much the Pope and Roman Church loved and honoured your person and heard you in all things whatever they could without offence to God Et in Quibuscunque secundum Deum potuerint vos Exaudierint Do not therefore my Lord if you desire the Health of your Soul any ways substract from that Church what is its own or oppose it any thing contrary to Justice Yea let it have the same Liberty in your Kingdom which it is known to have in others Be mindful also of the Profession you made and laid it written upon the Altar at Westminster when you were consecrated and anointed King by our Predecessor That you would preserve to the Church of God her Liberty and That you would restore the Church of Canterbury to the same State and Dignity it was in the times of your and our Predecessors Restore wholly to us The Possessions that belong to that Church The Towns Castles Lands which you distributed at your pleasure and all things taken away from Vs our Clercs or Lay-men Permit us freely and in peace to return to our See And we are ready faithfully and with Respect to serve you as our most Dear Lord and King In all things we can Saving the Honor of God and the Roman Church and our Order [8] Ibidem n. 40. Otherwise Know certainly That you shall feel the Divine severity and vengeance Et nos vobis tanquam charissimo Domino et Regi fideliter et devote servire parati sumus in Quibuscunque poterimus * The same words are in Quadrilogus lib. 5. Salvo Honore Dei et Ecclesiae Romanae et Ordine nostro * The same words are in Quadrilogus lib. 5. Alioquin pro â—certo scias Quod divinam severitatem et ultionem senties In an [9] Append. n. 46. Epistle to his Suffragans He Expostulates with them why they Concurred not with him in opposing the King and reclaiming him from his perverse purposes which seemed to him dangerous and intolerable and gives them notice That first having invoked the Grace of the Holy Spirit he had damned and cassated the writing He expostulates with his suffragans why they concurred not with him in opposing the King c. He castates and nulls the Kings Laws and Excommunicates all the favourers of them in which he had published his Customs or rather as he calls them Pravities And that he had Excommunicated all the observers exactors advisers promoters and defenders of them and had absolved all them his suffragans by Gods and his own Authority from the Observation of them Also That he had Excommunicated Iohn of Oxford afterward Dean of Salisbury and Bishop of Norwich for Joyning with Reginald Arch-Bishop of Colon and the Germans for Victor alias Octavian against Alexander and for usurping the Deanry of Salisbury against the Popes and his Command and declared his Title to it null and void He also [1] Ibidem He Excommunicates by name many others for several matters let them Know he had Excommunicated Richard Ivecestre or Ilcester for joyning with Arch-Bishop Reginald and the Germans as was said before and That he had Excommunicated Richard de Luci and Iocelin de Bailol because they drew up and put into form the Royal Customes and Laws or as he says because they were the authors and makers of those pravities Likewise That he had excommunicated Ranulph de Broc for taking and Deteining the Goods of the Church of Canturbury and for taking and imprisoning his Men or Tenents as Laymen That with him he had Excommunicated Hugh de St. Clare and Thomas Fitz-Bernard who had occupied the Goods and Possessions of the same Church without his Connivance or assent and all others That afterwards should do the like He further [2] Ibidem He tells his suffragans he yet deferred to pronounce Sentence against the Kings person but was ready to do it signifies to them That as yet he had deferred to pronounce Sentence against the Kings person expecting That being inspired by Divine Grace he might Repent which if he did not quickly he was ready to do it and commanding their Fraternity by virtue of their Obedience That they should Esteem as Excommunicated the before mentioned persons and cause them to be denounced such injoyning the Bishop of London to send and shew this Epistle to all his Brethren and fellow-Bishops of his Province After these proceedings of the Arch-Bishop A severe Edict to watch the Ports and against such as brought any thing from the Pope c. King Henry sent his Precept into England That all the Ports should be most strictly watched lest Letters of Interdiction should be any ways brought in and if any one brought them he
commanded his Feet should be cut off if he was a Clerc then to lose his Eyes and Genitals if a Laic to be hanged if a Leper to be burnt And if any Bishop fearing such interdict would depart the Nation he should carry nothing with him but his Staffe He willed also that all Scholars should return into England or they should be deprived of their Benefices and such as staid should never return The Priests that would not chant or sing Masse he ordered to be Gelt and all such as were Rebels to him were to lose their Fees or livelyhoods He also sent his [4] Append. n. 47. The King Commands the Sheriffs to imprison all such as Appealed to the Pope c. and to seize the Rents and Possessions of the Arch-Bishop Writs to all the Sheriffs in England That they should imprison all such as Appealed to Rome until his Pleasure was Known That they should seize all the Rents and Possessions of the Arch-Bishop as Ralph de Brocke and his other Ministers should direct That they should take security for the good behaviour of the Fathers Mothers Sisters Brothers Nephews and Nieces of all such Clercs as were with the Arch-Bishop and also that their goods should be forth-coming until his pleasure was Known When he [5] Hoved. f. 286. b. N. 10. A. D. 1166. He Banished all his Relations returned out of Normandy into England in the year 1166. he Banished out of England and all his Dominions all Men and Women that he could find which were akin to the Arch-Bishop and spared not the Children sucking their Mothers Breasts and he had not been two years in the Abby of Pontigny in the confines of Champaign and Burgundy with Warin and his Monks to whom Pope Alexander had recommended him [6] Ib. N. 20. And forced him to leave the Monastery of Pontigny But King Henry sent to the Abbat That if he sheltered any longer the Arch-Bishop of Canturbury in his Monastery he would Banish all the Monks of his * They were Cistertians From whence he goes to the Abby of St. Columb Order out of England The Arch-Bishop being told of this Message of his own accord left the place lest for his sake so many Religious houses might perish And from thence he went to the King of France who received him very kindly and sent him to the Abby of St. Columb near the City of Sens. Pope Alexander writes to [7] Hoveden ut supra n. 30. c. The Pope writes to King Hen. in behalf of Thomas And tells hiâ— of the difference of the Secular and Ecclesiastic power and rights And advises him not to confound them King Henry in favor of the Cause of Thomas the Arch-Bishop and tells him that as the Seculars were Distinguished in Life and Habit from Clercs so their Courts were quite Different That therefore he had perverted them by an indecent order and usurped those things which belong to Christ by making new Laws according to his own Will to the oppression of the Church and poor of Christ and so Exhorts him to permit every one to have his own Right and to leave Ecclesiastical matters and especially such as were Criminal about breach of Faith or Oath de laesione fidei aut Juramenti The Causes also which concern the things and possessions of Churches to be discussed by Ecclesiastic persons because it neither was Expedient nor became him to confound the Secular and Ecclesiastic government Regnum Sacerdotium confundere non adeo Serenitatem tuam Deceret nec etiam expediret He also wrote to [8] Append. N. 48. Gilbert Bishop of London to perswade the King to be kind to the Church and Receive the Arch-Bishop into favour The Bishop of [9] Ibidem N. 49. He writes also to the Bishop of London to incline the Kings affection to Thomas and the Church The Kings sober and complying answer to his proposals London takes to his assistance Richard Bishop of Hereford they both urge the King according to their instructions given them by the Pope in this and other Epistles who they tell him received his Correptions very thankfully and with great temper of mind answered every thing very modestly First That he had no aversion to him nor ever thought of any such thing That while he shew him his Paternal grace and favour The King would Love him as his Father and honor and cherish the Roman Church as his Mother and humbly obey his holy Commands saving his own and the Dignity of his Kingdom That if at any time he had been Deficient in his Reverence toward him it was because when he had in his necessity with his whole heart mind and strength espoused his Cause yet afterwards he being in great straights his Holiness failed him and to every Petition gave him a Repulse He said he will hinder no man from visiting your Holiness nor as yet hath he done it In Appeals according to the ancient Constitution of his Kingdom he affirms that no Clerc ought for a Civil Cause ob Civilem Causam to go out of his Kingdom before he had by his Authority and precept tryed whether he could obtein his right or not if he cannot any one might and shall Appeal to you In which if he did any ways prejudice your right or honor he would amend it by advice of the Church of his own Kingdom He asserts he never Expelled the Arch-Bishop out of his Kingdom and as he went of his own accord so he may freely return again to his Church when he please On Condition he observe his Royal Dignities which he Swore to observe though now he calls them wicked and unjust and if any Church or Ecclesiastical person can shew himself grieved by him or any of his he is ready to make Satisfaction according to the Judgment of the whole Church These they say were the [1] Ibidem Kings Answers and beseech his sublimity to consider what Issue this Affair is like to have when as the King seems much to justifie himself in that he submits in all things to the Counsel and judgment of the Church of his Kingdom And the Arch-Bishop may Return upon the Condition before Expressed And do supplicate his * Excellentiae vestrae supplicandum aestimavimus Excellency to act Mildly and not to pronounce sentenâ—e of Interdict or Excommunication against him lest he should force the King and with him much people and innumerable Churches from his Obedience The Arch-Bishops Suffragans or the Bishops of his Province [2] Append. N. 50. The Bishops of the Province of Canturbury write to the Arch-Bishop in behalf of the King they excuse him and exhort Thomas to a compliance wrote to him They did hope that those things which by his unexpected Departure and by the newness of the thing it self had been put into Confusion might by his humility and prudence with Cooperating Grace have been reduced into their former peaceable Condition And it
to suffer it to be lost seeing he received yearly from Burdeaux 1000 Marks The Archdeacons of England and very many of the Clergy met the Great men there They complained of the frequent and intolerable Exactions of the Pope affirming to the King The Clergy's complaiâ—t to the King of the oppressions and Exactions of the Pope What was resolved in this Affair That if these were suffered His Kingdom would be endangered and both Laity and Clergy would be ruined by a desolution that former times had not known Upon this It was resolved that discreet Messengers should be sent to the Court of Rome with Letters both to the Pope and Cardinals on the behalf of the Community of the whole Clergy and Laity of the Realm shewing their Greivances and Oppressions The [7] Append. n. 176. The Summe of their Letter to the Pope Summe of that to the Pope was a profession of their readiness to obey his Holiness but desire his Pardon if they could not then comply with his Demands for altho their Country yielded Plenty of Fruits for the Nourishment of its Inhabitants yet it afforded no Money neither was it sufficient to Supply what was required for their own Kings Necessity urged what they could spare towards the defence of his own Dominions against the assaults of his Enemies and so concluded That any further burthens would prove insupportable to them Their Letter to the [8] Append. n. 177. The Communities Letter to the Cardinal Cardinals was to this Effect They first give a hint of their grievances and what they had contributed since the last Lateran Council first a Twentieth part for three years for an Ayd to the Holy Land then a Tenth to the Pope afterward several other payments for different Uses at the Command of the Apostolic See Then they urge the great necessity and wants their own King lay under whom they were bound to Assist as their Lord and Temporal Patron and that they themselves were now reduced to such penury that if all they had were exposed to sale it would not be sufficient to answer what was demanded Wherefore they humbly beseech them to represent their condition to the Pope and endeavour to divert his Thoughts his hands and his Counsels from such grievous Oppressions About the same time the Pope [9] fol. 722. lin 3. granted to King Henry Vmbratile Privileguim a * Because he cut off all the advantage with a non obstante at any time when he pleased pretended and deceitful privilege That No Italian or Nephew of His or Cardinals should henceforward be sent into England to be beneficed unless He or his Cardinals first ask and obtain leave of the King to have him provided for Before the Council was ended Peter of [1] Ibid. n. 10. The Kings Wards married to Forreigners Savoy Earl of Richmond came to the Kings Court at London and brought with him several young Women from his own Country to be married to the young Noblemen that were the Kings Wards which thing much disgusted his own Native Subjects This year [2] Ibid. n. 20 30 40 50. Two Friers Minors sent into England to be the Popes Collectors Their Arrogant behaviour to the English Prelates John and Alexander Two Friers Minors Englishmen by birth were sent from the Pope with his Authority to be his Collectors or Exactors of Money in England and pretending to ask Charity only and use no force they obtaind the King's Licence And then went to the chief Prelates and very sawcily required of them Money to the use of their Lord the Pope and sometimes demanded xx s for a Procuration which was to be paid without delay if not they produced the Popes Thundering Letters Literas fulminantes to affright and constrain them to it When they came to the Bishop of Lincoln who was a great Admirer of that Order He stood amazed at their habit which was more Souldier-like than Religious But when they had shewed him the Popes Letters Their Demands of the Bishop of Lincoln and Abbat of St. Albans and demanded of him 6000 Marks to be forthwith paid out of his Bishopric He Answered with great grief of Heart That such Exactions were never heard of before and very unjust because it was impossible to answer them And seeing it concerned the Vniversity of the Clergy and Laity Vniversitatem Cleri Populi of the whole Kingdom He could give them no Answer in such a Difficult Affair until he had first consulted the Community of the Kingdom Then they parted from him and went to St. Albans and demanded of the Abbat 400 Marks to be paid to them for the Popes use But they received much the same Answer from him they had before from the Bishop About the same time the [3] fol. 723. lin 3. The Pope sends to borrow money of the French Prelats Pope by his Messengers the Friers Preachers and Minors sent to all the Chief Prlates in France and desired them to Lend him Money according to Every ones Ability and whatever they Lent should be repaid them without fail when He was able to do it When this was known to the King of France He prohibited them under pain of forfeiting all their Goods But are forbidden by the King from lending any such Summs lest thereby his own Kingdom should be impoverished This year [4] Ibid. n. 30. A Legat sent into Scotland Godefrid was sent Legat into Scotland although there was no Occasion for any and John Rufus into Ireland quasi Legatus in stead of a Legat that he might thereby elude the Priviledge lately granted to King Henry who so well managed his Master the Popes business there that He extorted from them 6000 Marks which summ was conveyed to London by the Religious The Popes Extortions in Ireland and payed into the Popes Treasury The same year [5] fol. 727. n. 20 30. King Henry followed the Example of the Great men of France who by their Kings approbation had entred into a Confederacy and made a Decree against the insatiable Avarice and Oppression of the Court of Rome That the same Exactions and Extortions might for the future be prevented here The Jurisdiction of the Clergy restrained and the Jurisdiction of the Spirituality restrained He ordained that these following Orders should inviolably be observed through England That No Laic should bring any Case before an Ecclesiastic Judge unless it concerned Marriage or Testaments The King likewise gave the Bishops a certain Form to proceed in Cases of Bastardy To inquire whether they were born before or after Marriage Clerc's were prohibited by the Kings Writ to Commence any Actions for Tythes before an Ecclesiastic Judge and that Writ by which they were to proceed was called Indicavit That an Oath should be given to Clerc's to Discover whether they had proceeded in any Case contrary to the Kings Prohibition Whereas they are not bound to Swear but before an Ecclesiastic Judge in
King promised in good Faith and without Cavil to observe the great Charter and every Article conteined in it And the same which his Father King John had Sworn to keep many years before and which he in like manner had Sworn to at his Coronation [2] Append. n. 179. And then all that opposed violated diminished or changed the Liberties and Customs conteined in the Charter of Liberties were Excommunicated and Anathematized on the third of May the [3] Append. n. 18â— Magna Charta solemnly confirmed Record says on the thirteenth of May in the great Hall at Westminster in the presence and by the Assent of the King Richard Earl of Cornwall his Brother the Earl of Norfolk Mareschal of England the Earl of Hereford the Earl of Oxford the Earl of Warwick and other chief men of the Kingdom by the Arch-Bishops and Bishops with Candles lighted in their Hands and the [4] Paris f. 867. n. 10. Charter which King John Granted was produced and read before them which the King regranted and then they put out their Candles and threw them down smoaking upon the Ground and every one wished That such as Deserved that Sentence might so stink and smoak in Hell The Council was no sooner [5] Ibid. n. 30 40. The Gascoigns desire assistance from the King Dissolved but the Gascoigns renewed their Suit to the King for assistance who promised to come to them in person with considerable Force about the [6] Ibid. f. 868. n. 20. The King prepares for an Expedition into Gascony first of June he summoned all his Military Tenents to be ready with their Horses and Arms at Portsmouth eight days after Trinity Sunday with al â—ecessaries to pass the Seas with him he took up a 1000 Ships of English and Forreign Merchants and lay Wind-bound above a Month to his great Expence and prejudice of his Affairs beyond Sea [7] Ibid. n. 50 About the sixth of August having appointed his Queen and Brother Richard to Govern the Nation in his Absence and left his Son Edward under their care he set Sail with a fair Wind and on the 15th of [8] f. 870. n. 30. the same Month arrived at Burdeaux and presently commanded Reole Castle to be Besieged and by the End of Summer the King had [9] f. 873. l. 1. His Success there recovered all his Castles in Gascony by Composition the Defendants often sending to the King of Spain for Relief but never receiving any Yet the King not daring to rely upon the [1] Ibid. n. 10 20 30 40. He desires a League and Friendship with Spain The King of Spain quitteth all claim to Gascony Fidelity of the Gascoigns and suspecting they might revolt to the King of Spain sent the Bishop of Bathe and John Mansel his especial Clerc to him to desire a League and Friendship with him and that he would yeild to Marry his Sister to his Son and Heir Prince Edward to whom he had given Gascony His Envoys dispatcht this Affair and with his Favor and Friendship brought back a Chart Sealed with a Golden Seal by which he quiet claimed whatever Right he had or could have in Gascony by the Grant of Henry the Second Richard the First or King John and upon Iâ—hn Mansels persuading him into a good Opinion of the King of Spain he sent for his Queen and Prince Edward to come to him In the mean time the Earl of Leicester [2] f. 879. n. 30. The Earl of Leicester offers his Service to King Henry came with some Troops of his own and offered his service to the King which when the Gascoigns understood and that the King of Spain was reconciled to him by degrees they returned to due obedience and the King had some thoughts of Returning On St. Julians day or the Twenty Seventh of January [3] f. 881. n. 30. A. D. 1254. A Parlement Convened almost all the Great Men of England were Convened and there came to that Parlement ad Parliamentum venientes on behalf of the King his three Messengers from Gascony the Earl Mareschal Roger Bigod and Gilvert de Segrave to declare his desires to the Vniversity of England There were present Richard Earl of Cornwall and the Queen The Kings Message to them with all the Bishops of England except those with the King The Message delivered in this Meeting from him was That he was deceived in the King of Spain whom instead of a Friend he had found an Enemie and therefore required a powerful assistance from them What was done upon this Message best appears by the Queens and Earl Richards Letter to the King to be found in the [4] fol. 189. n. 50. Additaments of Mat. Paris The Summ of the Queens and Earl Richards Letters to the King They wrote they had received his Letters at Christmass before and that they Summoned the Arch-Bishops Bishops Earls and Barons of the Kingdom on the Morrow after St. Hilary to acquaint them with his Condition and that the King of Castile was coming against him into Gascony and because of the shortness of the time the said great men could not meet at that Day they called the same together at Westminster fifteen days after that Feast i.e. the 27th of January That the Earls and Barons after they had heard the cause of their coming together offered to be ready at London three weeks after Easter to march from thence to Portsmouth and Ship themselves to relieve him in Gascony if the King of Castile invaded that Country That the Arch-Bishop of Canturbury the Elect of Winchester Bishops of London and Worcester promised they would personally come to him with a good strength That the other Bishops and Abbats promised a large supply in Money At last Earl Richard signified to him in the same Letter that he would not fail him of a supply answerable to his Necessity and his own Honor if the King of Castile did Arm against him and that he would leave the Kingdom in good Hands by advice of the Queen and bring her and the Prince with him But they would not [5] Paris Hist f. 882. n. 10. believe the King of Castile had any such Design and so the Council was Dissolved without effect Fifteen [6] Ibid. f. 887. lin 1. n. 10. The King reneweth his demands to his Great men days after Easter the Great Men were called again to London when the King upon the same Reasons made the same Demands and received the same Answer for then their suspitions that the King of Castile had no Design against King Henry was confirmed by Simon Monfort Earl of Leicester who was just come to them from beyond Sea Notwithstanding the [7] Ibid. f. 889. n. 30. The Queen and her two Sons pass over Sea Queen had received order from the King to the contrary yet she with her two Sons Edward and Edmund and her Uncle the Arch-Bishop of Canturbury Shipped themselves
great Men of Ireland and therefore ordered them to secure the peace of that Nation and sent them further private instructions by Roger Waspail who carried these Letters to whom he Commanded them to give credit This is all I find worth noting concerning Ireland in this Kings Reign who appointed Couragious Justiciaries and other Officers by whose industry and by putting the English Laws in Execution that Nation was kept in peace and quiet The Issue of King Henry the Third EDward his [1] Paris f. 488. n. 30. Eldest Son by Queen Alienor of Provence who was King of England after his death was born at Westminster upon the 16th of June 1239. Edmund his Second Son by the same Queen [2] Ibid. f. 654. n. 20. born January 16th A. D. 1245. in the Thirtieth year of his Fathers Reign He was Earl of Lancaster Leicester Derby and Campaign Lord of Monmouth and Steward of England There are by some four more Sons named but if he had them they died young Margaret his [3] Pat. 36 Hen. 3. m. 1. Eldest Daughter was Married to the King of Scots Alexander the Second a Child of nine years old Beatrice his Second Daughter so named of her Grand-mother Beatrice Countess of Provence was [4] Paris f. 5â—4 n. 20. born at Bourdeaux in Gascoigne on the 25th of June A. D. 1242. and was Married to John de Dreux Duke of Britain in France and Earl of Richmond in England Katherine the Third Daughter was born [5] Ibid. f. 879. n. 10. at London on St. Katherines day or the 25th of November A. D. 1253. and died at five years of Age. FINIS THE APPENDIX DE Sententiis Judicum CHART XCIX VAUCO IN nomine Dei Forma progreâ—suâ— in judicio Antiquitates Alaman Tom 2. fol. 3. cum resideret Vnfredus vir inluster Rhetia was toward the foot of the Alps. Retiarum N. 1 Comes incurte ad campos in Mallo publico ad universorum causas audiendas vel recta judicia terminanda ibique veniens bomo aliquis nomine Hrothelmus proclamavit eo quod in Contra Direâ—tum Coâ— Drâ—ctum Coâ—tra Drutum Contra Droâ— Gallicâ— Testimonia 〈◊〉 Tâ—sâ—eâ— common in Barbâ—rous â—â—tin Contradrutum suum Mansum ei tollutum fuisset quod ei advenit à parâ—e Vxoris suâ— simul Flavino propriâ— suum fuisset legibus suum esse deberet quin jam de TradavioVxoris suae fuisset â—dcircò suum esse deberet tum prâ—dictus Comes Convocatis illa Testimonia qui de ipso Bâ—go erant interrogavit eos per ipsum fidem Sacramentum quam nostro Domino datam haberet quicquid exinde scirent veritatem diâ—eâ—ent At illi dixerunt per ipsum Sacramentum quod Domino nostro datum habemus scimus quia fuit quidem homo nomine Mado qui ibi habuit suum solum proprium cujus conâ—inium nos sciâ—us quiâ— adjacet confineâ—â—d ipsâ—m Mansom unde iste proclamat in quâ— illi arbore durem de uno lâ—tâ—re aquâ— câ—ngâ—t inter eos terminum est in petrâ—s in arboris ipse est Dominus Nam sicut illa â—dificiâ— dâ—sursum conjungâ—nt istorum hominum proprium est illorum legibus esse debet de parâ—e Avii illorum Quinti Tunc praedictus Comes jussit ut ipsa Testimonia suprâ— irent ipsos terminos ostenderent quod dâ—ebant Quod 〈…〉 feâ—erunt ipsos terminos firmaverunt qui inter illa dâ— Mansa â—ernebant Sed pluâ—imi ibidem adfuerunt Nobiles quos ipse Comes cum â—s direâ—erat quod omnia pleniter factum fuit Vt autem haec â—iâ—ita â—unt interrogavit ipse Comes illâ—s Scabinios quid illi de hâc causâ judicare voluissent At illi dixerunt secundum istorum hominum testimonium secundum vestram inquisitionem judicamus Vt sicut davisum finitum est terminis positâ—s inter ipsos Mansos ut isti homines illorum proprium habeant absque ulliâ— contradictione in perpetuum quod in Dominico dictum terminâ— divisum coram testibus fuit reâ—eptum sit ad partem Domini nostri Proptereâ— opporâ—num fuit Hrothelmo Flavino cum Hieredibus eorum ut exinde ab ipso Comite vel Scabinis tale Scriptum acciperent About the year of our Lord 807. in the Reign of Charles the Great qualiter in postmodum ipsom Mansom absque ullius contrarietate omni Tempore valeant possidere Actum curte ad campos Mallo Publico Anno 7 Imperii Caroli Augusti 37 regni ejus in Franciâ 34 in Italiâ Datum VII id Feb. sub Umfredo Comite faeliciter Amen Haec nomina Testum Valeriano Burgolfo Vrsone Stefano Majorino Valerio Leontio Victore Maurestone Frontiano Florentio Stipfone Valentiano Quintello Stradario Et haec nomina Scabiniorum Flavino Orsicino Odmaro Alexandro Eusebio Maurentio quam etiam aliis plurimis Ego itaque VAUCO rogitus Scripsi Subscripsi All old Judgments Processes and Charts were drawâ— up in Barbarous Provincial Latin without Congruity Syntax Propriety or Elegancy The Process and Judgment is thus Englished N. 1 IN the Name of God when Humfry the Illustrious Person Earl of Rhaetia in his Pavillion in the Fields in a publick Mall or Court sate to hear the Causes of all Men or to determine according to right Judgment there came a certain Man called Hrothelm and complained That against his Right he had an House or Farm taken from him which came to him by his Wife and Flavino and was properly his own and by Law ought to be his because he had it by Livery or delivery of his Wife therefore it ought to be his Then the foresaid Earl calling Witnesses or Witnesses or Jurors were the same in the old Feudal German Law Jurors that were of the very Country or Vicinage he asked them by the Faith and Oath they had made to our Lord that whatever they knew of this Matter they should speak the truth They said By the very This Oath was made to the Emperor who is here meant by Dominus Noster Oath we have given to our Lord we know because there was a certain Man called Mado who had there his proper Soil the bounds whereof we know because it adjoyns and lies next to the very House or Farm claimed upon which there was a great Tree and one side was compassed with Water and between them was a Boundary of Stones and Trees That is Hrotheâ—m He is the Master Lord Owner or Proprietor of it For as those Buildings are joyned above they are the Propriety of those Men and ought to be theirs by the Law in right of their Grandfather Quintus Then the foresaid Earl Commanded That the Witnesses or Jurors should go upon the place and shew the Bounds they mentioned which they did and fixed the Bounds which they saw between the two Houses or Farms and there were many Noblemen there present whom the Earl directed to
capiemus bosoum alienum ad castra vel agenda nostra nisi per voluntatem ill us cujus Boscus ille fuerit No proper Cart of any Ecclesiastic Person or Knight or Lady shall be taken by our Officers neither shall We or our Officers or others take any other Mans Timber or Wood for our Castles or other uses unless by the consent of the Owner XL. Nos autem non tenebimus terras eorum qui convicti fuerint de Felonia nisi per unum annum unum diem tunc reddantur terrae Dominis feudorum We will hold the Land of those which are Convicted of Felony but one year and one day and then they shall be rendred to the Lord of the Fee XLI Omnes Kidelli de caetero deponantur penitùs per Tamisiam per Medewisiam per totam Angliam nisi per costam maris All Weres for the future shall be destroyed in the Rivers of Thames and Medwey and through all England unless upon the Sea-Coast XLII Breve quod vocatur Praecipe de caetero non fiat alicui de aliquo tenemento unde liber hâ—mo perdat causam suam The Writ which is called Praecipe for the future shall not be granted to any one of any Tenement whereby a Free-Man may lose his Cause or rather his Court Vnde liber homo possit amittere This Writ seems to have been such as would take the Cause or Tryal of Right out of the Lords Court where all Titles of Right were antiently Tryed and this Liber homo was a Lord of a Maner that was in danger to lose his Court by this Writ by having Tryals of Right taken from it Curiam suam in MSS. Collegii Corp. Christi Cantab. XLIII Vna mensura vini cervisiae sit per totum regnum nostrum una mensura bladi scilicet quarterium Londinense Et una latitudo pannorum tinctorum russeccorum haubergetorum scilicet duae ulnae infra listas De ponderibus vero sit ut de mensuris There shall be one Measure of Wine and Ale through our whole Kingdom and one Measure of Grain that is to say the London-Quarter And one Breadth of Dyed Cloaths and Russets and Haberjects that is to say Two Ells within the Lists and the Weights shall be as the Measures XLIV Nihil detur In the same Manuscript vel capiatur de cetero pro brevi inquisitionis ab eo qui inquisitionem petit de vita vel membris sed gratis concedatur non negetur Nothing shall be given or taken for the future for a Writ of Inquisition from him that desires an Inquisition of Life or Limbs but it shall be granted gratis and not denyed XLV Si aliquis teneat de nobis per feudi firmam vel socagium vel bungagium de alio teneat terram per servitium militis nos non habebimus custodiam haeredis vel terrae suae quae est de feudo alterius occasione illius feudi firmae vel socagii vel Burgagii nec habebimus custodiam illius feudi firmae vel socagii vel burgagii nisi ipsa feudi firma debeat servitium militare If any one holds of us by or in Fee-Farm Soccage or Burgage and holds Land of another by Military Service We will not have the Wardship of the Heir or Land which is of or belongs to another Mans Fee by reason of what he holds of us in Fee-Farm Soccage or Burgage Nor will we have the Wardship or Custody of that Fee-Farm Soccage or Burgage unless the Fee-Farm is bound to perform Military Service XLVI Nos non tenebimus custodiam haeredis vel terrae alicujus quam tenet de alio per servitium militare occasione alicujus parvae Serganteriae quam tenet de nobis per servitium reddendi cultellos vel sagittas vel hujusmodi We will not hold the Wardship of an Heir or any Land which he holds of another by Military Service by reason of any petit or small Serjeanty he holds of us by the service of giving us Daggers or Arrows or the like XLVII Nullus Ballivus ponat aliquom de caetero ad legem nec â—d juramentum simplici loquela sua sine testibus fidelibus ad hoc inductis No Bayliff or Officer for the future shall bring any Man under the Sentence of the Law nor to his Oath i. e. Purgation or Canonical Purgation by his Oath upon his single Accusation or Testimony without Credible and honest Witnesses produced to prove it XLVIII Nullus liber homo capiatur vel imprisonetur aut disseisietur de aliquo libero tenemento suo vel libertatibus vel liberis consuetudinibus suis aut utlagetur aut exulet aut aliquo alio modo Q. Whether not destruatur destituatur nec super eum ibimus nec eum in carcere mittemus nisi per Legale judicium parium suorum vel per legem terrae No Freeman shall be taken or imprisoned or disseised of his Free Tenement or Liberties or Free Customs or Out-lawed or Banished or any way destroyed nor will we pass upon him or commit him to Prison unless by the Legal Judgment of his Peers or by the Law of the Land i. e. by Legal Process c. XLIX Nulli vendemus nulli negabimus aut differemus rectum vel justitiam We will not sell to any Man we will not deny any Man or delay Right or Justice L. Omnes Mercatores nisi publice prohibiti fuerint habeant salvum securum There wants the word Conductum exire de Anglia venire in Angliam morari ire tam per terram quam per aquam ad emendum vel vendendum sine omnibus toltis malis per antiquas rectas consuetudines praeterquam in tempore Werrae si sint de terra contra nos Werrina All Merchants unless they be publickly prohibited shall have safe and secure Conduct to go out of and come into England and to stay there and pass as well by Land as by Water to Buy and Sell by the antient and allowed Customs only without any Male-tolts i. e. Illegal Exactions except in Time of War or when they shall be of any Nation in War with us LI. Et si tales inveniantur in terra nostra in principio Warrae attachientur sine damno corporum vel rerum donec sciatur à nobis vel à capitali Justitiario nostro quomodo Mercatores terrae nostrae tractentur in terra contra nos Werrina Et si nostri salvi sint ibi alii salvi sint in terra nostra And if there be found such Merchants in our Land in the beginning of a War they shall be attached or secured without Damage to their Bodies or Goods while it may be known from us or our Chief Justitiary how our Merchants are dealt with in that Nation in War with us and if ours be safe there they shall be safe in our Land LII Liceat unicuique de
passed but with his consent and advise that is nothing could be Sealed without his allowance or privity as it there appears But the Justiciary surmounted him and all others in his Authority and he [4.] Spelm. Gloss f. l. 331. alone was indowed with and exercised all the Power which afterwards was executed by the four Chief Judges that is the Chief Justice of the Kings-Bench the Chief Justice of Common-Pleas Steph. Segrave Mat. Paris A. D. 1234. Chief Baron of the Exchequer and the Master of the Court of Wards As Sir [5.] Ibidem Henry Spelman makes it out by the Articles exhibited against Hubert de Burgo there cited out of Mat. [6.] Fol. 376. n. 30 40 50. Paris and other Instances [7.] Spâ—lm Gloss ut sup The Barons by right of Dignity in all Cases many others by Right of Tenure and most by Priviledge granted by Chartre were not to be impleaded for their Lands and Tenements but before the King or his Capital Justiciary Some Remains there are to this day There remains somewhat of the Office of the old Justiciary in the Chief Justice of the Kings-Bench of this great Office in the Chief Justice of the Kings-Bench all England as to keeping the Kings Peace and Dignity of the Crown and some other Matters is under his Jurisdiction and therefore is stiled Chief Justice of England This great Officer had his Original from [8.] Spelm. Gloss fol. 332 Normandy and was the same in Power and Office with the ancient (*) From the Teutonick Sehen or Saxon Theon to see videre inspicere scale servus or Minister as it were the chief Minister or Inspector of the Family Major Domus Dapiser Scon. Somn. Gloss in verbo or Seneschallus and so from this great Service and general imployment called Seneschallus Normaniae Seneschal thereof or very like him anciently there was wont says the [9.] C. 10. Grand Customs of Normandy a certain Superior Justice called the Prince his Seneschal to travel and pass through all Normandy The great power of the Justiciary which name we received from Normandy Grand Cust c. 384. he corrected the Delinquence of inferior Justiciaries took care of and secured the Prince his Lands caused to be observed the Rights and Laws of Normandy and rectified what had been less justly done by the Bayliffs and removed them from their Office if he thought it convenient He also inquired into the Vsages and Customs of the Forest and caused them to be observed every three years he passed through and perambulated every part of Normandy and visited every (a) Bayly-wic was a portion of the Dukedom of Normandy Bayly and Balywic what Si inventus saerit in Balliva sua Grand Cust c. 4 answerable to our County having respect to that Province and hence that expression in the King's Suit to the Sheriff of a County or Shire it was greater than a Vicount and contained many of them the Bayliff was an Officer appointed by the Prince and had greater Power and Jurisdiction in greater Causes than the Vicount he was Judge of and had Power to hold Assizes in his Balliage to keep the Peace of the Prince to hold Pleas of the Sword or Crown and had cognizance of Arms and arming the People Bayly-wic and inquired into all the Excesses and Injuries done there by Sub-Justiciaries he likewise took notice of all publick Thieves Rapes Murders Burnings or Fireings of Houses and all other Pleas of the Sword or as we call it the Crown of Treasure digged out of the Earth Mines Wrecks Water-courses changed or not kept High-ways changed or stop'd up c. doing right in all these and many more things there enumerated This great Officer was also General Vice-roy and Guardian of the Kingdom in the Kings absence and sometimes made Peace and War by the advice of the chief Nobility as may be observed in the following History The Determination of this great Office This mighty Office of Justiciary received many gradual Diminutions and at length determined about the [1.] Dugd. Origin Jurid fol. 20. 45 th of Henry the Third there being afterwards a Chief Justice in each Court of Kings-Bench and Common-Pleas appointed [2.] Spel. Gloss fol. 334. men less eminent in Quality not of the highest Nobility or greatest order in the Church without great Alliances in Blood and a numerous Train of Clients and Followers less Popular and so less Factious and more easily to be commanded by the Prince yet more knowing in the Law which by this time was become a [3.] Ibidem very sublime Mystery very intricate and involved Inferior Ministerial Officers all Normans For other inferior Ministerial Officers Earls Vicounts Bayliffs Lords of Hundreds and Maners before whom Titles and Causes of smaller Consequence were tried 't is evident they were all Normans none but they injoying any considerable Lands Liberties or Jurisdiction as must be acknowledged by all that know any thing of the Catalogue of Proprietors in * Append. n. 10 Doomesday Book or have well considered what Gervasius [4.] L. 1. c. 23. Tilburiensis says in his Book de Necessariis Scaccarii observandis to that purpose a Person beyond exception being an Officer in the Exchequer which Court then took notice of all the Estates in England one way or other Nor were the Judges and Lawyers of those times in all probability other than Normans for then they were most if not all [5.] Dugd. Origin Jurid fol. 21. Clergy-men and so were they in Normandy as is manifest by the [6.] C. 9. Grand-Customer where 't is said the Judges are Sage Persons and Authentick which in Court give judgment of those things they have heard as Archbishops Clergy-men Judges and Lawyers in Normandy Bishops Canons of Cathedral Churches and other dignified Persons Abbots Priors and Rectors of Churches famous for their Honesty and Piety and the most of the great Clergy-men in this Nation then as Bishops dignified Persons Abbots Priors c. were Normans William [7.] Hoved. fol. 259. b. n. 30 40. A. D. 1070. depriving very many of the English of their Ecclesiastick Honours and put those of his own Nation into their places as a means to confirm him in his new acquests and 't is not to be doubted but great numbers of the inferior Clergy as well Regular as Secular came over with them who were exercised in the Controversies of the Norman Law for Confirmation whereof there were in the Reign of William Rufus so many of the Clergy Lawyers that [8.] Fol. 69. b. n. 10. All Clerks Pleaders Malmesbury said there was nullus Clericus nisi causidicus No Clerk which was not a Pleader If therefore the Justiciaries Chancellors Earls Sheriffs Lords of Maners such as heard Causes and gave Judgment were Normans if the Lawyers and Pleaders were also Normans the Pleadings and Judgments in their several Courts must of necessity
have been in that Language and the Law also otherwise they had said and done they knew not what especially when the Controversies were determined by Military-men Earls or Counts Sheriffs or Vicounts and Lords of Maners that understood not the English Tongue or when the Chief Justiciary himself was a Military-man as it often happened and understood only the Norman Language For this reason Why all Pleadings were in the French Tongue and no other it was that all Pleadings c. were in the Norman-French until by Act of Parliament in [9.] 36 Edw. 3. c. 15. Edward the Third's time they were appointed to be in the English Tongue but entred and inrolled in Latin save that the ancient Terms in Law might still be retained in that Language as being more apt [1.] Sir John Davis in his Preface to his Irish Reports and significant than in any other which seems to be no obscure Argument That the Laws of this Nation except such as have been altered or introduced by our Kings and great Councils or by Act of Parliament were for the greatest and chiefest part of them the Norman Laws and brought in or instituted by William the Conqueror the Subject next to be treated of 'T is not to be thought No Nation governed meerly by one Law that ever any Nation enjoyed one simple Law by its self pure and unmix'd with some of the Vsages and Customs of other Countries especially such as have been often over-run and conquered which do commonly retain somewhat they received from all their new Masters for Conquerors seldom think their Conquest compleat until they have over-turned the Laws and Customs of the vanquished and established such as they think most effectual to establish themselves Nor hath it been yet heard of that the World or any considerable part of it comprehending many and distinct Nations have been governed meerly by one Law but that every of those Nations have had and do retain at least some of their own Municipal Laws agreeable to their own Customs And so doth this Nation retain some of the Saxon and Danish Customs which do not much differ from the Norman seeing they were (b) Cluverius in his [3.] Lib. 1. Germany contained many Nations Antiqua Germania asserts Germany France Spain and Britain to be one Nation and of one Language viz. Celts And also there affirms that Germany anciently comprehended Danemarke Sweden Norway Finmark the Cimbric Peninsula c. And that all or most of those Nations spake the same Language in a different Dialect Neighbours by Situation had the same Language only differing in Dialect and communicated in many Rites and Usages nay joyntly conquered both this Country and Neustria in France They were not People of one Nation that conquered England and Normandy afterwards called Normandy for they were not intirely Saxons Danes or Norwegians or of one Nation that made these Conquests although their greatest Leaders and the greatest numbers of any one Nation might be such but a mixture of all these and several other People of the North parts of Germany Yet that the bulk and main of our Laws The main of our Laws were Norman Laws or at least very different usages of them were brought hither from Normandy by the Conqueror such as were in use and practice here for some Ages after the Conquest is without question And our Tenures for from whence we received our Tenures and the Manner of holding of Estates in every respect from thence we also received the Customs incident to those Estates as Reliefs Aids Fines Rents or Cens Services c. and likewise the quality of them being most of them Feudal and injoyed under several Military Conditions and Services and of necessary Consequence from thence we must receive the Laws also by which these Tenures and the Customs incident to them were regulated and by which every mans right in such Estates was secured according to the Nature of them See Grand Custom throughout and Scriptor Norm 1037 But from Normandy and brought in by the Conqueror we received most if not all our ancient Tenures and manner of holding and injoying our Lands and Estates as will appear by comparing our ancient Tenures with theirs First concerning Fees the Learned [2.] Gloss fol. 218. col 1 The Servitude of Fees brought in by the Conqueror Sir Henry Spelman tells us William the Conqueror brought over the Servitude of them into England who divided all England amongst his Great Men and Chief Commanders and this he says appears from * See Append. n. â—0 where are the Names of all the Normans in every County to whom all the Lands in England were given Doomesday-book And after that the Bondage of Fees was known in all parts of the Kingdom not heard of before in the Saxon times [4.] Somners Gavel p. 102. Berault on Cust Norman fol. 112. The word Beneficium or Praedium was anciently used for Feodum which was not used in any Nation or Country until about the beginning of the Tenth Century from our Saviour's Incarnation [5.] Dudo Sti. Quint. Decan fol. 34. c. Rex viz. Galliae quoque adjecit donationi quam prius Rolloni donaverat totam Britanniam ut per hoc etiam beneficium efficeret illum sibi fidelissimum Vassallum [6.] In lib. de feud disp c. 5. B Hottoman says beneficium datur propter officium quo verbo demonstratur Feudale officium non nisi militare Bellicum fuisse And so [7.] Dudo ut supra f. 85. A. B Rollo upon his acquest of Normandy after having given a Portion to the Church divided Normandy and measured it out to his Chieftains and (c) A sort of Bondmen or Servi in the Saxons time Not but there were a sort of Bondmen or Villains in the Saxons time they had their Ceorls or Gubures their Rusticks Ploughmen and Servi but here he speaks to and means the manner of Servitude which came from Normandy Vassals [8.] Ib. f. 86. B. and in his old Age he called them together and caused them to put their hands between the hands of his Son William Fees originally Military by Popa to whom he had given his Country and bound them to him by Oath or procured them to swear Fealty to him [9.] F. 1. printed at Râ—ven 1620. Mounsieur Berault upon the Customs of Normandy says the Origin and Antiquity of their Customs was not certain but it was very likely they were the Laws of the Normans that conquered Neustria The Conqueror gave Norman Laws to the English and established there by them and that by the example of Rollo William the Conqueror gave the Laws of Normandy in the Norman Language to the vanquished English [1.] Ibidem yet in the Preface to the Chapter of Fiefs he reports from Coquill upon the Custom of the Nevernois and Du Hailan that they were first heard of in Gallia when the Francs
Spiritual Causes Also concerning Clercs for Crimes imposed upon them by Laics In the beginning of Lent the forementioned [6] fol. 728. n. 20 30 40 50. The Abbat of St. Albans cited to London by the Popes Collector John a Minorite Demanded of the Church of St. Albans 400 Marks the Second time and by Virtue of his Authority cited the Abbat of St. Albans to appear at London three Days after either in Person or by his Proxy to satisfy the Popes Demands that were lately made to him The Abbat sent his Archdeacon to appear for him at the day appointed He Appeals to the Pope who after he had demanded and with difficulty obtained a Copy of the Brief Answered That the Abbat designed to send special Messengers to Rome to acquaint the Pope with these grievances and for remedy appealed to him because [7] fol. 729. n. 30 40 50. But without Remedy both the Abbat and Convent thought they should meet with more favour from the Pope than they could expect from him When they came to Lyons where the Pope then resided They were coldly received and met with great difficulties and some checks Namely That they did not give that respect and pay that reverence which was due to the Popes Messenger and that their Abbat was the only person amongst all the Abbats of England that refused to yield Obedience to his Commands When they saw their entertainment and no remedy to be expected they compounded for 200 Marks and their expences amounted to 100 more Frier John writeth to the Pope for additional Powers When Frier John the Minorite saw the Clergy especially the Abbats so unwilling to yield to his demands He wrote to the Pope to have his power enlarged The Popes Answer together with the Letters of additional powers are in Additament Matt. Par. fol. 159 160. About the same time the King finding the [8] fol. 730. lin 6. The Nobility and Clergy meet the King at Oxford State of his Realm endangered and much impoverished by Papal exactions and the Money carried out of his Kingdom without any advantage to the Church He commanded the whole Nobility of the Kingdom omnem Totius Regni Nobilitatem to meet at Oxford But the Prelates were in a more especial manner called that they might consult how the Church might be relieved from such oppressions as it now lay under But they contrary to all expectation presently consented to a Contribution of 11000 Marks The Prelates consent to contribute 11000 Marks to the Pope and the Clergy were constrained to pay it into the hands of the Bishops of Winchester and Norwich and such as refused were wearied into a compliance by the troubles and damages they received from John the Minorite nor did the Abbat of St. Albans fare the better for that he had sent the Pope fourscore Marks the year before In the year 1248. King Henry [9] Fol. 742. n. 30. kept his Christmass at Winchester with many of his Great men A. D. 1248. Soon after [1] fol. 743. n. 40 50. A Parliament called at London He summoned the Nobility of the whole Kingdom of England to meet him at London Eight days after Candlemass Besides a great Number of Barons Knights Noblemen Abbats Priors and Clercs there came thither Nine Bishops and as many Earls The Arch-bishop of York the Bishops of Winchester Lincoln Norwich Worcester Chichester Ely Rochester and Carlile Earl Richard the Earls of Glocester Leycester Winchester Hertford Roger Bigod Mareschal and Oxford besides the Earls of Lincoln Ferrars Warren and Richmond The Arch-bishop of Canturbury was beyond Sea the Bishop of Durham was infirm and the Bishop of Bath was lately dead When they were assembled the King required of them an Ayd But they [2] fol. 744. line 1. The King required an Aid but is denyed And is reproved by his Great men for miscarriages reproved him for asking it without Blushing as saith the Monk seeing when they granted the last he promised by his Chart he would not any more burthen his Great men Moreover they blamed him for his repeated kindness and Liberality to Forreigners and contempt of his Native Subjects for not encouraging the trade of his own Kingdom [3] Ibid. n. 20.30 for keeping Bishoprics and Abbys void in his own hands To these they added That neither the Justiciary Chancellour or Treasurer were made by the Common Counsel of the Kingdom per Commune Consilium Regni as they * There are no Instances to be found of that in his Predecessors times were in his Predecessors Reigns When the King heard these things [4] Ibid. n. 40. His concern and promise to correct what was amiss he was much concerned and promised that what was amiss should be speedily corrected To which the Vniversity of England Answered That as they had often so they would now patiently wait a short time and see whether he meant as he spake and according as he performed his promise so they would their obedience to him in all things So the further consideration of this Affair was put off till fifteen days after Midsummer At the day [5] fol. 748. n. 30 40 50. appointed The Answer He received the Nobility of all England Nobilitas totius Angliae met at London and were received by the King with this following Speech That they did not treat their King civily but would have him submit to their pleasure and yield to any Terms they should offer him and did deny that Liberty and Authority to him which every Master Exercises in his own Family every Master of a Family may use whose and what Counsel he please The Kings Speech to the Parliament and may put in and put out what Officers he please in his own House which you deny to your King And as Servants ought not to Judge or impose any Difficulties upon their Lord so neither Vassals on their Prince and therefore was resolved neither to remove the Chancellor Justiciary or Treasurer at their pleasure nor to appoint others And then added that he expected from them a pecuniary Ayd for the defence and recovery of his Rights which concerned them beyond the Seas To all which they unanimously Replyed That they would no longer impoverish themselves to enrich Strangers Their Answer and Resolve against granting any Ayd as they had formerly done when they gave money towards his Expedition in Gascoigny and Poictou So the Parlement was dissolved in great disorder without any satisfaction either to the King or themselves But the King was hereby [6] fol. 749. lin 1. The King reduced to great streights reduced to so great necessities that he was constreined to expose to Sale his Jewels Plate and other Vtensils of his House and such Vessels as were curiously wrought and Gilded were Sold not according to their value but weight When the King enquired where he should meet with Buyers it was Answered At London The King replied