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 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
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
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 *
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
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
Common-wealth and divided the Provinces between himself and the Roman People those which were most quiet and remote from Enemies he gave to them such as bordered upon the Enemy and were most hazardous he kept to himself lest the People having the Command of Soldiers and Arms might turn them against him Ibid. Their Magistrates he called Proconsuls although they had never been Consuls or Chosen out of Senators that had born that Office they had no Power over the Soldiers nor did they wear a Sword or Soldiers Habit Those which he sent into the Provinces Legates or Lieutenants who so called that he reteined himself he called Legates or Lieutenants although they had been Consuls and Vice-Praetors that is had born the Office of Praetors Not. Imp. or c. 98. Cities how many a Province conteined Every Province conteined ten or eleven [g] Not. Imp. or c. 98. Cities and chief Cities what Ibid. c 33. Praetorian praefect what he was They were such Places as had Courts for Hearing Causes Duumviri Judges or Magistrates Executing Justice but the greater Cities or Metropoles such as had a Prâ—tâ—rium or Palace a Gymnasium a School or Place of Philosophie Exercise a Theater Court and Bathes Cities at least and they were Various according to the Diversity of Times in the beginning all were Praetors because Governed by Praetors but after the Conquest of Asia and Achaia there were two kinds of Provinces Pretorian and Consular which were Governed by Proconsuls the Magistrates or Officers in Italy were Pretorian and Consular those abroad were Propretorian and Proconsular Ibid. Constantin the Great changed this Constitution and the Form of Government in the Empire Alâ—iat T. 2 de Magistrat c. 471. Constantin Institutes 4 Praetorian prefects and Instituted four [h] The Praetorian praefect at first only Commanded the Emperors immediate Guard and from these those constituted by Constantin had their Denomination and had the greatest Trust in the Empire committed to them by succeeding Emperours from whose sentence there was no Appeal c. Pretorian Prefects one of the East another of Illiricum a third of Italy and a fourth of Gallia These had their Vicars or Deputies under them who likewise had the Command over several Presidents Consulars and other Magistrates according to the Extent of the Country where they were Deputies or Vicars Three degrees of Provinces There were three Degrees of Provinces the Greater the Middle Not. Imp. or c. 98. and the Less The greater Province were Ruled by the greater Magistrates or Spectabiles the Conspicuous or Notable How ruled and by whom such were Proconsuls Comites Counts c. The middle were Consular Provinces not that they were governed by Consuls or Proconsuls but by Senators sent with Consulary Ornaments These were sometime governed by Correctors which were inferiour to them of Consular Dignity because they used not their Ornaments Yet they commanded over the Soldiers and wore a Sword and Military Habit Maxima Cesariensis Valentia Consular Provinces See these Explained in the Notes upon the History in Valentinian And also these three Presidial Provinces Britan. 112. which the Proconsuls did not Maxima Caesariensis and Valentia were Consular Provinces in Britain and Governed by [i] There were two sorts of Consuls before Constantin the Ordinarii and Suffecti The Romans dated their Records although they continued not a whole year in that Office Consulars who the Ordinary were the usual annual Consuls or were such as began their Consulship in the bâ—ginning of the year or on the first of January whence the other were Substituted Consuls these last Constantin called Consulares or Honorary Consuls from the Consulary Ornaments they had which were Instituted by Julius Caesar Sueton. in Julio c. 76. Such also were called Consulares that had born the Office of Ordinary Consuls but these were not of that Number Consulars The less or smaller Provinces were subject to Presidents by such were Ruled Britannia prima secunda Flavia Caesariensis for what Reasons in those times the three last Provinces were accounted the least and worst and the two former the greater and better I know not Camden says the Empire declining those Provinces had only Consular Magistrates which lay next the Enemy such were Maxima Caesariensis and Valentia in Britain Whatsoever the first Institution was of these Dignities and Imperial Commands yet what distinct Jurisdiction and Powers belonged to them I find not sufficiently cleared by any Author I have seen especially since the time of Constantin in whose Reign the Aera of the Declining Empire is rightly fixed I am apt to think the same Government Power and Jurisdiction or very little different might be Used and Exercised by Persons of various and different Titles they all having the same See Alciatâ— Breviary in his second Tome 482 483 485. and Panciroll in utramque Notitiam and upon the several Magistrates Lib. 2.64.688 Digest Lib. 8 Tit. 6. or not much different Offices and Courts of State with almost the same Officers attendant upon them yet so as they were distinguished by their several Ensigns Habits Symbols and other Discriminations of meer State and Honour according to the first Institution This Conjecture wants not some Authority to Confirm it Zosimus Reports that the Vice-Pretor was called Duke And Virius Lupus Propretor or Lieutenant was called President by Ulpian Panciroll says those which Governed small Provinces by Special Appellation were called Presidents Not. Imp or c. 99. yet all Proconsuls and Governours of Provinces were conteined under the General Name of President and they agreed in very many Things as well as Name According to the General Opinion the Civil Government of Britain after the time of Constantin was committed to a Vicar or Deputy of the Pretorian Prefect of Gallia under whose Direction or Disposition were the two Consulars Alciat Tome 2d 482. and three Presidents before mentioned In his Office or Court of State he had these Officers The Officers of the Vicarâ— Court ibid. Princeps c. Principem de Schola agentium in rebus ex [k] A Decree or Order of Mâ—n in this Body so called from the Ducenarii in a Cohort which commanded two hundred Men See Panciroll Not. Imp. or c. 64. And here it may be noted that the Officers in the Courts of Magistrates had the resemblance of Officers in Military Cohorts Ibid. c. 20. Ducenarii and from thence their Names and were raiâ—ed by degrees to Honour as in that the Names of Military being transferred to Civil Officers whence the Magistrates Office had the name of Cohort or Court which we at this day retein ducenariis The Chief or Principal of this Court who gave Direction to the other Officers was of the Society or Corporation of the Emperors Emissaries Panciroll Not. oâ— c. 64. Spies and Pursuivants and Superintendents of the [l] Alciat Tom. 2. â—35 Post Horses kept at the
Controversie about Investitures inter Regnum Sacerdotium between the Secular and Ecclesiastic Government or between the Emperor Henry the Fourth and Pope Hildebrand otherwise Gregory the Seventh and Pope Paschal the Second let him see William of Malmsbury who lived at the same time f. 60. b. n. 10. f. 61. a. n. 30 c. f. 93. b. n. 40. f. 94 a. b. c. And Jurets Observations upon Ivo Carnotensis his Epistles printed at Paris 1610. p. 740. upon the 233d Epistle and p. 744. upon the 236th Epistle The Decrees and Canons were the foundation of the Popes Provisions and Donations of Bishopricks and Ecclesiastic Livings afterwards in all Nations but especially this Libertas Ecclesiastica THe Right of Investiture was a main part of that which the Clergy called Church-Liberty But by it they understood and contended for a Freedom of their Persons Possessions and Goods from all Secular Power and Jurisdiction as appears by the Canons and Decrees of the Council holden by Boniface Arch-Bishop of Canterbury at Merton A. D. 1258. and confirmed by another holden at London A. D. 1260 or 1261. as may be seen in the Church Story in the Reign of Henry the Third Servi DO every where occur in Domesday Book and no doubt but their Condition was worse than that of the Bordarii See the First part of the Saxon History f. 82. B. and f. 83. and the life of VVilliam the First f. 206. F. These were of four sorts such as sold themselves for a livelyhood Debtors that could not pay their Debts Captives in War or Nativi such as were born Servants or Slaves They wrought at any time and did what their Lords commanded them Their Persons Children and Goods were the Lords they could not marry but with those of equal Condition they could not make their Wills or dispose of their Goods if they had any whatever they got by Labour was the the Lords These Servi perhaps were the same which in the Antient Surveys of Maners were afterwards called operarii who performed all servile and incertain works In the History of Ely p. 210 b. in an Account of Lands and Men deteined from that Monastery which belonged to it in the time of King Edward c. there is this noted amongst the rest Willielmus filius Gorham tenet lxxxvi homines in Meltuna Qui ita proprie sunt Abbati ut quotiescunque praeceperit praepositus Monasterii Debeut arare seminare segetes purgare Colligere vel terere Equosque invenire in omni necessitate Monasterii ire omnem rei Emendationem persolvere si quid de suo voluerint venundare à praeposito licentiam prius debent accipere These were either Servi Servants or the lowest sort of Bordarii or Socmani I take the Persons of Servants to have been always obnoxious to servitude Soca Socmanni Socagium SOca Soc. generally signifies Liberty or Privilege Fleta lib. 1. c. 47. says Soca significat Libertatem Curiae tenentium quam socam appellamus Soke signifies the Liberty of Tenants of a Court And it differs from Saca because that is a Liberty given to any one of holding Pleas and Trying Causes and also of receiving the Mulcts and Forfeitures coming from them within his Soke or Jurisdiction and comes from the Saxon Sace or German Sack a Cause Controversie or Accusation Sometime it signifies a Territory or Precinct in which Saca or Liberty of Court or Trials are exercised Sometimes it signifies a payment Westfelda c. Huic manerio adjacent T. R. E. xxx acr Terrae quas tenebat presbyter in Eleemosyna reddebat Socham i.e. he paid Rent Little Domesday Book f. 4. a. VVritelan c. ibi Dimid Hid. libere tenet 1 Sochman reddens Socam in Manerio ibid. f. 5. a. VVirecestre-scire Terra Episcopi Hund. Owldestan Episcopus habet omnes Redditiones Socharum c. Ad manerium Alvertune pertinet Soca harum Terrarum Newhuse VVesthuse Mannebi VVerlegesbi And nineteen other Farms Berwites or small Villages And then it follows Inter totum sunt ad Geldum quater Viginti quinque Carucat quas possunt arare xlv Caruc ibi fuerunt 116. Sochmani modo VVastum est The Soke of these Lands belongs to the Maner of Alvertun c. in them all there was fourscore and five Carucates which paid Rent which forty five Ploughs might Till There were one hundred and sixteen Socmans now the Maner is wast Great Domesday f. 299. a. Col. Here Soca signified a Rent for using their Land with some Privilege or Liberty In the Description of many Towns at the later End Rex Comes de Toto habent Socam or Soca Regis Comitis The King had two parts and the Earl one of the Annual Rent for liberty of using the Land Sudfulc f. 322. b. In Limberge Clamat Ivo Tallebosc super Regem vi Bovat Terrae Dicunt homines Comitatus quod ipse debet habere terram Rex Socam In Limberge Ivo Tallebosc claims upon the King six Bovates of Land the men of the County say he ought to have the Land and the King the Soke * At the latter end of great Domesday Book Clamores in Nortreding Lincoliae Super Drogonem Clamat Norman de Adreci tres bovatas Terrae In Normanbi dicit VVapentachium quod ipsius debet esse Terra Drogonis Soca Ibid. in VVesttredinge In both these places here was the Land and the Liberty of the Land that it might be used without too strict Impositions and hard services upon it and for this Protection of it there was an Annual Rent paid which was called the Soke In Ristuna iii liberi homines vi acr val xvi d. In his non habuit Baignardus nisi Commendationem Sanctus Benedictus Socam Invasiones in Nordfulc Rogerus Bigot tenet in Plicham x liberos homines de lxxx acr c. de his habuit suus Antecessor Commendationem tantum Stigandus super unum Socam Commendationem super alios Socam Ibid. Hund. Dimid de Fredebruge In Grestuna iv liberi homines xxvi acr Quod tenet idem Rogerus de Rege val iv Sol. in hoc non habuit Antecessor Rogeri nisi Commendationem Rex Comes Socam Ibid. Hundred de VVanelunt In Dersincham 1 lib. homo xii acr val xii d. hoc tenet Petrus Valoniensis de hoc habuit suus Antecessor Commendationem tantum Stigandus Socam Ibid. Here I confess I am in the dark for 't is clear Commendation and Soke are two different things referred to the same thing and yet they both signifie Privilege and Protection for which those that received them paid an Annual Stipend or Rent Stanford Burgum Regis c. In his Custodiis c. sunt lxxvii mansiones Sochemanor qui habent Terras suas in Dominio qui petunt Dominos ubi volunt Super quos Rex nihil habet nisi Emendationem forisfacturae eorum et heriet et Theloneum
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.
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
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
Sickness or other Impediment before Battel then by this or that Person as many as he would which were present and shewed in Court who had seen and heard of the thing in Controversie or thus and this I am ready to try by this my Free-man D. unto whom his Father on his Death-bed injoyned upon the Duty of a Son which he ought to him that if at any time he should hear of a Suit for that Land he should adventure himself by Combat to prove it The Tenant had his choice to defend himself by Duel or Grand Assize as that which his Father had seen and heard the claim of the Demandant thus heard it was in the 8. choice of the Tenent to defend the same against the Demandant by Duel or put himself upon the Great Assize of the King and to require a * Enquest recognoisant Grand Custom c. 92. Recognition which of them had most Right in that Land [9.] Ibidem And if he would defend it by Duel he was then obliged to defend himself against the claim of the Demandant in the very words it was made either by himself or some other fit Person And that the Combat once waged he that held the Land ought to defend it that way and could not afterwards put himself upon the Great Assize [1.] Ibidem And note before the Duel began it was necessary for the Demandant to appear in Court and have his Champion there ready to fight nor might he bring any other than one of those he first shewed in the Court upon whom he put the Dirationation or proof of his Cause [2.] Glanvile lib. 2. c. 3. The Champion of the Demandant ought to be such an one as might be a â—it Witness nor could the Demandant prosecute his Appeal in his own Person because that could not be done but by a fit Witness who had heard of and seen the thing in question [3.] Ibidem Note also that the Champion Defendant could not in the Court produce in his place any other to undertake the Combat than his own Legitimate Son [4.] Ibidem But it often happened that a Champion was hired for reward to make Dirationation or proof of the matter controverted against whom if the adverse Party should except that he was less fit because he had taken a reward or been hired and being ready to prove the same against him if he should deny it by himself or by some Person who saw him take the Reward Principale duellum remanebit he should be heard and the principal Duel was to remain or be stayed [5.] Ibidem And if he was hereof convicted and the Champion of the Plaintiff vanquished in Combat then his Master or Patron lost his Suit and the Champion as being conquered lost the Law of the Land that is to say afterwards he was never to be admitted in Court as a Witness to make proof or Dirationation of any thing for any other man by Battel [6.] Ibidem But for his own self he might defend his own body or prosecute an injury done to him as breach of the King's Peace and might also defend the Right of his Fee and Inheritance by Combat [7.] Ibid. c. 3. In fine The Punishment of a Recreant The Battel ended the vanquished Person was (d) This was a great Penalty in those days and in the Saxon times one of the highest for great Crimes as appears every where in their Laws punished sixty shillings as a Recreant or Coward and moreover lost the Law of the Land [7.] Ibid. c. 3. In fine The Punishment of a Recreant And if the Champion of the Tenent or Defendant was overcome his Lord Patron or Master lost the Land claimed with the Profits and Commodities found upon it at the time of Seisin And could never afterwards be heard in Court again for the same for those things that were determined in the Kings Court by Duel were to remain firm for ever and thereupon a Precept was directed to the Sheriff That the Victor should have the Land which by Combat was proved to be his and should be put in Seisin of it by this [8.] Ibid. c. 4. A Writ of Seisin to the Victor after Battel Writ The King to the Sheriff Greeting I command you that without delay you cause M. to be seized or give him Possession of one Hide of Land in such a Town concerning which there have been a Plea or Controversie in my Court because the said Hide of Land was adjudged to him in my Court by determination of Combat witness Ranulph c. [9.] Ibid. c. 5. Thus it was if the Demandant prevailed in the Combat but if his Champion were overcome then the Tenent or Defendant was acquitted from his claim Thus much Glanvil of Tryal by Combat in Civil Cases In Criminal Cases it was also used Duel or Battel in Criminal Cases but more especially in Appeals of Treason and Murder And the manner of this Tryal [1.] Lib. 3. c. 18 Bracton delivers beginning thus of those which are taken for any Crime or great Felony as for the death of a man c. [2.] Ibid. n. 3. when the Delinquent was brought forth and accused in Court and confessed the Crime there was sufficient ground for a full and compleat Judgment But if he denied it and any one Appealed him of the Crime and that he did not except (e) There were many Exceptions to be taken many several ways in this way of Tryal Exceptions against an Appellant as first to the Person of the Appellant that he was Outlawed Perjured a Condemned Person or formerly had been Recreant and not made good his Proof c. any of which were reason enough to put him by his challenge if proved against the Appellant he had his choice whether he would be tried by his Country whether guilty or not or he might defend himself by his own body that is by Battel if he chose to be tried by the Country and repented him of it he could not try his Case by Duel but must have it decided by the Country and so on the contrary And taking upon him to defend himself by Battel [3.] Ibidem The Judge by his Office ought to examine whether all things rightly concurred for the joyning Battel [4.] Ibidem and if the Fact and Cause were sufficient and all things concurred well to warrant the Combat then the Appellate or Defendant gave Pledges or Security to defend himself and the Appellant to disprove or dirationate him and if the Appellate or Defendant were overcome The Defendant if overcome lost his Estate and Goods The Appellant if vanquished cast into Prison as a False Accuser he suffered capital Punishment and lost all his Estate and Goods But if the Appellant were vanquished he was committed to Prison to be punished as a False Accuser yet he was not to lose either Life
or Member and then the Appellate being acquitted receded from that Appeal unless the Justices upon any other Suspition thought fit to retain him Of these Combats in Cases Criminal [5.] Selden de duello c. 11. some are for Tryal of Crimes against which the Law by (f) Segar in his [9.] Fol. 137. Honour Military and Civil gives several Instances of Combats granted by the Kings of England upon Accusation of Treasons between Party and Party when the truth of the Cause could not be proved by witness or otherwise ordinary course may proceed and of these the Justices of the Kings-Bench have the ordering Battel in Criminal Cases under the direction of the Kings-Bench Or Court of Chivalry others for Purgation of Offences against Military Honour and Treasons committed beyond the Seas anciently without Remedy by the Law of England which the high Court of Chivalry has cognisance of by Law of Arms. Those in Civil Causes were [6.] Dugd. Origin Jurid fol. 6. under the disposition of Itinerant Justices or the Justices of Common-Pleas In Civil Cases under the disposition of the Common Pleas. For the Bill of Challenge the Ceremonies in Arming the Combatants fitting and allowing their Weapons the preparing the Lists the Introduction of the Approver and Defendant of their Oaths upon matter of Fact which were contradictory word for word to one another the Office of the Constable and Mareschal and other Circumstances Preparatory to the Combat See old Customs of Normandy c. 68. Bracton lib. 3. cap. 21. Segar's Honour Military and Civil lib. 3. c. 17. fol. 131. Dugdale's Origines Juridiciales fol. 68 c. 76 c. where they are at large treated of And Spelman's Gloss in verbo Campus where is described the manner of Combat both according to the Mareschals or Military and also according to the Civil or Court of Common Pleas Tryal by Duel in Tothilfields A. D. 1571. as it was performed in Totil Fields near Westminster 1571. The whole Court of Common-Pleas being adjourned or translated thither from Westminster-hall Dier as Chief-Justice and all the Judges sitting upon a Tribunal there erected and all the Serjeants taking their places in their Solemn Scarlet Habits In a Writ of Right between Simon Lowe and Thomas Paramour for a Mannor and certain Land in the Isle of Harte by the Isle of Shepey in Kent This way of Tryal from the Lombards This way of Tryal by Combat as that of Ordeal and the Judgment of twelve men came to us out of the North [1.] Selden de duello from the Lombards who coming out of Scandia (g) * Selden de duello Scandia contained Norway Swethland Danemarke and other Regions North of high Germany over-ran the chief Countries of Europe and is thought to be instituted by Frotho the Third King [2.] Saxo. Gram. Ed. Francofurt fol. 86. n. 20. of Danemarke at the time of Christ's Bâ—rth who among other Laws made this that every [3.] Ib. fol. 77 n. 40. f. 81. n. 10. Controversie should be determined by the Sword And so pertinacious were these Northern People in this way of Judgment that it continued [4.] Olaus Worm monum Dan. f. 70. in Holsatia unto the time of Christian the Third King of Danemarke who began his Reign Anno Domini 1535. [5.] Ib. fol. 71. Luitprandus King of the Lombards attempted to abrogate this wicked Custom of Tryal by Combat but in vain And though he had heard that many had lost their Right by this sort of Judgment yet the Custom of his Country was such as he could not prohibit it Campiones a Campo From these Northern Nations we had both name and thing Campiones Champion says the Learned Spelman [6.] Gloss in verbo campus A Campo as Forensis a Foro and [7.] Monumenti Dan. fol. 62. Campio Champion a Kemp. or Kemp From whence Cimber Olaus Wormius tells us that he was called Campio or as we Champion whom the Danes called Kempe that is a Warrior or Gigant and the most Valiant or Stout man which the Danes or Northern People as suppose the Lombards or Scandians called Kemper the Romans according to their Idiom expressed by Cimber Writ of Right now become obsolete But whatsoever high Reputation a Writ of Right had as the highest Point of the Common Law of England for the Tryal of Propriety either by the Recognition of twelve lawful men or by Duel yet are [8.] Spelm. Gloss fol. 103. both these ways of proceeding now become almost obsolete and out of use But all things having constantly had their Execution from the Kings Writs and Commands let us see who and of what Quality they were to whom these were directed immediately and for some time after the Norman Conquest That they were directed to the Justiciaries of England or that they had power from the King either to make them out or to give order for their making out and direction to the Earls in their several Counties Vicounts Sheriffs or such as had the Power over and Government of Counties and places whither they were sent cannot be doubted And the first Justiciaries we find to be after the Conquest Norman Justiciaries were both Normans Odo Bishop of Baieux in Normandy half Brother by the Mother to the Conqueror Odo and William Fitz-Osborn Justiciaries and William Fitz-Osborn [1.] Gul. Pictav f. 208 D. who was Vice-Roy and had the same Power in the North that Odo had in the South was the chief in William's Army most dear to the Normans and therefore he knew would be a Terror to the English He [2.] Order vital 521. D. was Sewar of Normandy and had given him here the Isle of Wight and County of Hereford of whom more in the Life of William Next after them [3.] Order vital fol 493. B. William Earl of Warren in Normandy and a great Commander in the Battle against Harold and [4.] Ib 535. A. Richard de Benefacta alias Richard de [5.] Gemeâ— l. 8 c. 15. lib. Doomesday Tonebridge Son to Gilbert Earl of Brion in Normandy 1073. were made chief Justices of England who summoned to the Kings Court divers Rebels c. In the great Plea between Lanfranc and Odo before-mentioned Goisfrid Bishop of Constance Justiciary Odo Justiciary Goisfrid Bishop of Constance in Normandy was Justiciary and all those great men of England who were to cause the Sheriffs of every County to restore to the Bishops and Abbots their Lands which were taken from them to whom the before-noted Precept was directed were all Normans In the beginning of William Rufus [6.] Hen. Hunt â—ol 212. b n 40. Odo Bishop of Baieux and Earl of Kent was again Justiciary and chief of all England [7.] Malmsb. in W. 2. fol. 67. b. n. 30. William de Carilefo Bishop of Duresme succeeded him in this Office a Norman also and he was in
put their Judgments in Execution The Subjusticiers were Officers established under the Justiciers to do Execution such were Viscounts Serjeants of the Sword Bum-Bayliffs Bedells or under-Serjeants c. C. 5. with the Coment A Vicount in Normandy was an under Officer of the Law a Pedanens judge and was the very same with a Provost or a Viginer or Vicar who heard small and Ordinary Cases Pasqu Recherch fol. 860. D. Serjeants of the Sword The Office of the Vicount was to hold Pleas of antient Paths Ways Bounds Watercourses c. and to walk the Parish with twelve men of the same and by their Oath or the Oath of the greater part of them to inquire whose Lands lay next the Ways c. and cause them to be amended by those which held the Land accordingly he was to inquire by the Oath of twelve lawful men of Malefactors as Murderers Thieves Traytors Ravishers and other Criminals to keep them in Prison till they were delivered by the Law of the Country These had also under them Serjeants of the Sword who held the Views and made the Summons to them and executed the Precepts of the Assizes and what was judged there and to keep and deliver according to Law Distresses taken The Bedells were the less Serjeants which ought to take the Distress and to do Offices less honourable and to make the lesser Summons and these were in every good Town C. 6. Default Trespassment des Termes sont Appellez defaultes that is such as came not at the time appointed nor appeared in Court according to Summons or when they ought or performed not what they were then to perform were in Default Fealty No man in Normandy could receive Fealty from another without saving his Fealty to the Duke which is to be expressed in doing Homage And therefore the Duke hath the whole Justicement of the body of a man for or by reason of the Fealty that all men owe him If a Lord doth wrong to his man by reason of his Fee the Court then appertains to the Duke if there be no Mesne or Middle-Lord between the Duke and him which by reason of his Fee may have the Court. About Distresses taking Goods and impounding Cattle much used C. 7. as in use with us Of the times when many Lands are to be several or commune C. 8. the Vsage much the same as in England Judges were Sage Persons and Authentick C. 9. So it was in England Who anciently Judges in Normandy Bishops Abbats Priors Canons c. which gave Judgment in Court as Archbishops Bishops Canons of Cathedral Churches and other dignified Persons in Churches Abbats Priors Conventual and Governours of Churches famous for their Discretion and Honesty Bayliffs Knights Serjeants principal and Seneschals of Barons Famous for Knowledge and Honesty every of these might remain in Judgment if the Cause were not their own or they were no ways Parties nor had given Judgment nor were Witnesses in it nor were suspected for Love Favor or Hatred Barons ought to be judged by their Peers and others by all such as cannot be removed from Judgment i. e. such as were not suspected as before Antiently there was in Normandy a greater Justice than all the beforementioned which was called the Seneschal of the Prince C. 10. Seneschal of Normandy He was like the Missi Regales or Dominici in the old Empire or Itinerant Justices anciently that went their Circuits once in two three four five or six years he corrected all inferior Justiciers as Bayliffs c. and removed them from their Offices if he saw it convenient he preserved the Land of the Prince and made to be preserved the Laws and Rights of Normandy to which purpose he travelled every three years through Normandy and visited all the particular Baylywicks and inquired of the Injuries and Excesses done by the Sub-justiciers and also held Pleas of the Sword c. and in all things that belonged to his Office he might cause them to be amended without Pleas or Assizes and in all places where he found any thing amiss he might do as he thought expedient Custom Law and Usage C. 11. Custom Law and Vsage understood and practised in the same manner as in England All such as were Residents in the Dutchy of Normandy C. 14. All the Residents in Normandy sware Fealty to the Duke ought to swear Fealty to the Duke and keep it and therefore in all things they ought to be Loyal towards him and were not to procure his damage nor to give Council or Aid to his manifest Enemies such as were found culpable of any of these things were called Traytors to their Prince and all their Possessions remained to him always The Women in Normandy without consent of their Husbands C 15. could make no Contract or Bargain Wrec belonged to the Duke of great and rich things there named C. 1â— Wrec and of ordinary things to the Lord of the Fee all the Controversies arising from it were to be determined in the Dukes Court. Treasure Trove i. e. found or digged any where C. 18. Treasure Trove belonged to the Duke Waifs belonged to the Lord of the Fee or sometime to the Duke C. 19. Waifs c. according to Custom C. 20. And Glanv lib. 7. c. 16. The Chattels of Vsurers that died belonged to the Duke so to our Antient Kings C. 21. Felonâ— Goods were the Dukes The Chattels of such as killed themselves Excommunicate and Desperate Persons such to whom Confession and the Sacramenâ— was denied were the Dukes C 22. Moveables and Chattels forfeited to the Duke All Moveables forfeited belong to the Duke Moveables were the Chattels of such as were condemned by Judgment that were hanged burnt their Eyes pulled out or their hands or Feet cut off or banished c. C. 24. Assize what Assize was an Assembly of Knights and Sage men with the Bayliff in a certain place and at a certain time which contained the space of forty days between one Assize and another by which Judgment and Justice was done of such things as were heard in Court in these Assizes the Juries sometimes were brought to a Non-scavoir Non-scire Ibidem Juries brought in Ignoramus or Ignoramus And when nothing of Certainty or Credit was deposed the Inquest being first examined the Return or Verdict was L'enquest scet rien Ibidem Lands c. forfeited as in England The Lands and Estates and Profits of condemned Persons for Felony were the Dukes for a year and a day afterwards they were the Lords of the Fee of whom he held immediately so in England C. 25. The eldest Son Succeeds the whole c. In Fuedal Succession the Eldest Son succeeds in the whole and so it descends to the next of the Blood and never ascends when there is any of the descending Line remaining In the Latin Version of the Customer of Normandy
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
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
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
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
Noblemen The Conditions of the Peace September the King of France and his Mother met at a Parlement or Conference Convenerunt ad Colloquium c. with the Honorable and Great Men of that Kingdom who after the death of the Kings Father had made War one upon another in which Treaty Peace was made upon the following Conditions First That the Earl of Champaigne the principal Author of this Discord should undertake the Croysado to the Holy-Land and there with an Hundred Knights fight against the Enemies of Christ Secondly That the King of France and his Mother should swear upon the Holy Gospels That they would restore to every one their Rights and that they would Judge all Men of that Nation according to right Custom or Law due to every Man In the mean time King [2] Ibid. n. 20.30 The English Army lies idle in France Spend their Money pawn their Horses The King returns into England Henry with his Army lay idle at Nantes doing nothing but spend his Treasure The Earls and Barons seeing Hubert de Burgh would not permit them to fight with their Enemies Feasted according to the English manner and invited one another and Drank as if it had been Christmass Those which were poor having spent all their Money Sold or Pawned their Horse and Arms At length the King in October having provided for the defence of that Land left 500 Knights and 1000 Stipendiary Servientes or Horsemen under the Command of Ranulph Earl of Chester William Marshal and William Earl of Albemarl shipped himself and Landed at Portsmouth on the 26th of that Month. After the Kings departure [3] Ibid. n. 40. The English make an inroad into Anjou and Normandy the Earl of Chester and others whom he had left the Chief Governors of his Army made an Incursion with the whole Army into Anjou and took Gontier Castle demolished it and burnt the Town and soon after entred Normandy in like manner and took the Castle of Pontorsun and levelled it with the groud and burnt the Town they returned into Britain with great spoils without any loss to themselves A. D. 1231. In the year 1231. [4] Ibid. n. 50. A Parlement or Conference The King demands three Marks Scutage of every Knights Fee The King at Christmass kept his Court at Lambeth and on the 26th of January He met his Prelates and Great Men at Westminster Convenerunt ad Colloquium apud Westmonasterium Rex cum Prelatis aliis Magnatibus Regni where the King required a Scurage three Marks of every Knights Fee of all that held Baronies of him whether Laics or Prelates But Richard Archbishop of Canturbury and some Bâ—shops opposed it alledging that Ecclesiasticks were not to be Taxed by and with Lay-men for that in Transmarine Countreys Scurage was Granted by Laics without them However all the rest as well Laics and Clercs as Prelates readily submitted to the King's pleasure Soon after the Archbishop of Canturbury [5] fol. 368. n. 10.20 The Archbishop Complains to the King of the Justiciary The King asserts his Prerogative complained to the King that Hubert the Justiciary had possessed himself of the Castle and Town of Tonebridge and other Lands that belonged to the late Earl of Glocester deceased for which Homage was due to the Church of Canturbury To whom the King replyed That the above-mentioned Earl held of him in Capite and that it was his Prerogative to dispose of the Wardships of Earls and Barons and of their Heirs to whom he pleased till they should come to full Age. When the Archbishop could obtain no other Answer He Excommunicated all that had entred upon the aforesaid possessions The Archbishop goes to Rome The King sends to defend his cause Richard Earl of Cornwal Marries the Countess and also every one except the King that should converse with them and then went to Rome to prosecute his Suit in that Court The King likewise sent Roger de Canteln with some others to plead his Cause before the Pope This year at Easter Richard the Kings Brother Married Isabel Countess of Glocester Sister to William Marshal Earl of Pembroke which William dyed immediately after that Solemnity This year in May the [6] Ibid. n. 30. The Welch make incursions into England The Bishops Excommunicate them Welch under their King Leolin made many Incursions and great spoils upon the Borderers of Wales sparing neither Sacred Persons nor Places when the Bishops and Prelates heard of it they Excommunicated Leolin and all his Favorers and Abettors and the King having raised an Army to repress them built Maud Castle which the Welch had formerly demolished and placed a strong Garrison in it to hinder their incursions Having finished this Castle in October he returned into England Ibid fol. 370. n. 30. This year in June [7] fol. 369. n. 30. The King of France designed to invade Britany His Carriages Victuals and Warlike Engines taken A Truce for three years the King of France with a great Army designed to invade Brittain but was prevented by the Earls of Brittain and Chester who had prepared an Ambush to intercept the Carriages of his Army with the Victuals and Engines which so effectually succeeded that they took and destroyed them all The French being thus surprized and discouraged a Truce was agreed upon and concluded for three years between the two Kings On the King of France his part by the Archbishop of Rhemes and Earl of Bologne and on the King of Englands part by the Earls of Brittain and Chester who soon after came into [8] Ibid. n. 40. Richard Marshal offers Homage for his Brothers Estate England with Richard Mareschal and were very honorably received by the King Then Richard Mareschal offered to do Homage to the King and whatever else was required of him as Heir to his Brother William Mareschal deceased To whom the King by the advice of his Justiciary gave this Answer That He heard his The King refuseth to receive his Homage and Commands him to depart the Kingdom Brothers Wife was with Child and would not determine any thing till that was certainly known adding moreover that He had confaederated with his Enemies in France and upon that Account commanded him to depart the Kingdom within fifteen days and never to return again upon pain of perpetual imprisonment When he received this Answer from the King he passed over into [9] Ibid. n. 50. He resolves to recover his Inheritance by force Ireland where he was kindly received had all his Brothers Castles delivered to him and had Homage with Fealty done him Also Pembroke Castle with the Honor belonging to it was yielded to him After this he got together a great number of Armed Men resolving if necessity required to recover his Inheritance by force The King upon this changed his Thoughts and accepted his Homage and Fealty The King accepts his Homage and granted him all his Rights taking only
the Castle of Divises under the Custody of four of their Knights and made Lawrence a Clerc of St. Albans Steward of the Lands Granted him who had been a faithful friend and great comfort to him in all his Afflictions The Substance of this Composition or Judgment is to be found upon Record though it doth not well agree with the exact Circumstances of time and the Crimes objected in every Punctilio during this Transaction hitherto The * Append. n. 152. Record says That the Pope wrote to King Henry To correct the Injuries Hubert de Burgh had done to the Roman Chucch and the * See before for this Matter Italian Clercs here in England and That thereupon the King sâ—nt to Arrest his Body and bring him to Answer before him for that very thing Especially Hubert having notice of this fled into a Chappel and those that followed him though they had no order to do it took him out of the Chappel and carried him to London when the King heard of this being Desirous to maintein the liberty of the Church Commanded him to be carried back to the same Chappel in which when he had staid many days he was asked whether he would remain in the Chappel or go out and stand Tryal in the Kings Court concerning the same Injury and others which should there be objected against him by the King and many others who many ways complained of him At length he voluntarily chose to come out and stand to Law yet he begged the Kings Mercy and so went out and the Kings Officers that were there present received him carried him to London and delivered him to the Constable of the Tower The King not satisfied sent Stephan de Segrave then Justiciary John de Lascy Earl of Lincoln Brian de Lisle and others to know whether he was forced or went out voluntarily He answered he went out freely and not for want of Victuals or any other thing and that he was ashamed he had staid there so long Then the King Commanded he should be out of the custody of the Constable of the Tower that he might come freely to his Court and so he came to Cornhul in London upon the Eve of St. Martin and appeared before Richard Earl of Cornwal William Earl Warren Richard Marshal Earl of Pembroke John Earl of Lincoln Stephan Segrave Justiciary Ralph Fitz-Nicholas and others the Kings Tenents or Feudataries there being where when he was accused he would make no defence nor undergo the Sentence of the Court but submitted himself to the Kings pleasure concerning his Body Lands and Goods The King at the instance of the Great Men and the Petition of Hubert and his Friends and Relations and by the permission of those that accused him Respited the Judgment notwithstanding it was drawn up in Court and voluntarily Granted him these Terms That having delivered to the King all the Lands Tenements and Liberties which he held of him in Capite and of King John his Father and all Writings and Instruments that concerned them Then he should have and retain the Lands and Tenements which descended to him from his Antecessors and all the Lands and Tenements he held of others then the King yet so as he should answer to all his other Accusers according to the Custom of the Kingdom and all his Chattels wheresoever they were as well Gold Silver Money or other Goods and his Body to remain at the Castle of Divises in the custody of Richard Earl of Cornwal William Earl Warren Richard Marshalâ— Earl of Pembroke and John Earl of Lincoln until he was delivered by the Commune Council of the King and of all the foresaid Barons his Keepers and of all the Great Men of the Land And if he should by any ways or means Break or endeavour to Break Prison then the Judgment was to take effect and wheresoever or by whomsoever he should be found he was to be used as an Out-law Toward the latter end of this year in December Lewelin * Append. n. 153. Granted and promised to stand to the determination of Ralph Bishop of Chichester and Chancellor Alexander Bishop of Lichfield and Coventry Richard Marshal Earl of Pembroke John de Lascy Earl of Lincoln and Constable of Chester Stephan de Segrave Justiciary of England and Ralph Fitz Nicholas the Kings Steward together with Jolenevet Lewelin's Steward Werrenoc his Brother Iman Vachan and David a Clerc concerning Amends to be made for the excesses on both sides for the restitution of Lands and Possessions and what Money was to be paid for Damages done In the year 1233. King Henry at Christmass [6] fol. 384. n. 20 30 40. A. D. 1233. The English Nobility removed from the Kings Counsels kept his Court at Worcester where by the advice of Peter Bâ—shop of Winchester as it was reported he removed all Bishops Earls Barons and Noblemen from his Council and would trust no one but the aforesaid Bishop and Peter de Rivallis his Kinsman So that the management of all publick Affairs was committed to them The Poictovins and Brittans were now invited into England Poictovins and Brittans called into England The Wardships of the Nobility committed to them The English complain of it in vain and there came over 2000 Knights and Servants whâ— were placed in several Castles in Garrison to whom the easy King committed the Wardships of the Nobility which afterwards much degenerated through the ignoble Marriages with Forreigners And when any Englishman complained of their burthens and oppression to the King they were hindred of remedy through the powerful influence of the Bishop of Winchester When [7] Ibid. n. 50. Richard Earl Marshal speaks boldly to the King Concern in the Poictovins Richard Earl Mareschal saw both the Noble and Ignoble oppressed and the Laws of the Kingdom laid aside He as a lover of Justice with some other Great Men Associatis sibi quibusdam Magnatibus went boldly to the King and told him publickly that by pernicious Counsels he called in Poictovins and Strangers to the great oppression of his Natural Men and violation of their Laws and Liberties Wherefore they humbly supplicated him to correct these disorders in the Government otherwise both He and the rest of the Great Men would withdraw themselves from his Counsels so long as he made use of Forreigners To whom the Bishop of Winchester replyed The Bishop of Winchesters Answer to him That the King might call whatsoever Strangers he pleased for the defence of his Kingdom and Crown and also such and so many as might reduce his proud and rebellious Subjects to due Obedience When the Mareschal and the rest heard this Answer [8] fol. 385. lin 2. they retired from Court promising faithfully to stand by one another in that cause usque ad divisionem corporis anima to the very parting of Body and Soul The last year in Autumn [9] Ibid. n. 40. The Pope voids the Election of John Blund
greinure partie Ne Ke il ne enselera ren Ke seit en Contre le Ordinement Ke est fet et serra a fere par les Vint et Quatre u par la greinure party Ne Ke il ne prendra nul Loer autrement Ke il nest divise as autres E lem li baudra un Companiun en la furme Ke la Cunseil purverra That is This the Chancellor of England did Swear That he should Seal no Writs without the Command of the King and his Council that shall be presentt except Writs of The Oath of the Chancellor of England Course nor should Seal the Gift or Grant of a Great Ward or Great ...... or of Escheats without the assent of the Great Council or the greater part of them Nor that he should Seal any thing which was contrary to the Ordinances then made or to be made by the Twenty four or the greater part of them Nor that he should take any Reward but what had been given to others And that if he took to him an assistant or Deputy it should be according to a form provided by the Council When by their Ordinances and having procured their Friends to be made Governors of all the Kings Castles and Places of strength in the Nation and having also provided themselves of a Justiciary and Chancellor for their purpose and bound them by Oath to act according to their Dictates They then if any credit may by given to [2] f. 391. n. 20. The Barons Practices to enrich themselves and Relations Math. Westminster held continual Parlements took to themselves the Escheats and Wards and gave to their Sons and Relations all Churches in the Patronage of the King And when they had driven the Kings Brothers out of the Kingdom the Baronage or [3] Paris f. 978. n. 10. lib. Additâ—ment f. 215. n. 30 40. A. D. 1â—58 Comunity of England sent Letters to the Pope to excuse themselves which were [4] Append n. 195. Their Letter to the Pope to excuse themselves to this effect That altho' he had lately sent Mr. Herlot or Arlot his Sub-Deacon and Notary who admonished and induced them to assist the King in the prosecution of the Affair of Sicily which he had undertaken without their Advice and Consent and against their Wills Yet out of Reverence to him and the Holy See they thought fit to Answer That if by their Advice he would Reform the Kingdom and he would mitigate the Conditions contained in his Bull of the Grant of Sicily Then according to the Terms of the Reformation and his Mitigation they would effectually help him But when the King had consented to choose Twelve and that they should choose Twelve others by whom the Reformation of the Nation was to be made He named Adomar the Elect of Winchester and his Brothers in the number of his Twelve And that they but more especially the Elect disswaded the King from consenting to their Ordinances and incouraged Prince Edward and some of the Nobility to oppose them so as they delayed the Reformation And they also signified to the Pope That their Offences were so great as the Cry of the Poor ascended to Heaven against them That their Ministers and Officers were rather to be called Thieves and Ruffians who preyed upon the Poor insnared the Simple moved the Wicked oppressed the Innocent triumphed in the worst Actions and rejoyced when they had done ill They therefore considering A Commonwealth was a certain Body that grew up by Divine Beneficence and that it was not Expedient there should be clashing amongst the Members of the same Body made the King call the said Elect and his Brothers as Perturbers of the publick Peace to Answer their Accusers according to the Laws and Customs of the Kingdom Yet so as if they desired it they might have leave to depart who rather than they would stand to or undergo the rigor of Justice went out of the Nation And they Declare their intention to hinder the Elect from returning again who they said was the chief cause of their Disturbance and would certainly undo what they had had taken so much pains to do by Infatuating the King and his Son Edward if he came again And at length heaping more Crimes upon him As that he damnably violated the Liberties of the Church imprisoned Men and wounded Clercs to the prejudice of the Crown which had the sole power of imprisoning They beseech his Holiness wholly to remove him from the Administration of the Church of Winchester by the Fulness of his Power he having received it by the Munificence of the Apostolic See lest worse things might happen and they his most Devoted Supplicants be forced to do it otherwise and told him for certain That though the King and greater Men of the Kingdom were willing he should return yet the Comunity would in no wise permit his Entrance And that he might be removed without scandal seeing he was not Consecrated Bishop To these Letters Eleven Persons put to their Seals and witnessed them on behalf and in the stead of the whole Comunity Eleven Persons put their Seals to this Letter Of these Eleven Eight were of the number of the Twenty four Reformers viz. Richard of Clare Earl of Glocester and Hertford Simon Montfort Earl of Leicester Roger Bigod Marescal of England Humfry Bohun Earl of Hereford and Essex John de Placeto Earl of Warwick Hugh Bigod Justiciary of England John Fitz-Geofry Peter Montfort The other Three were of the Number of the Fifteen of the Kings Council chosen by Four of the Twenty four viz. William de Fortibus Earl of Albemarl Peter of Savoy Earl of Râ—chmond James Aldithley or Audeley The Great Men [5] Paris Additam f. 217. n. 30 40 50. Four Knights sent to the Pope with this Letter from the Great Men. fearing lest the Elect of Winchester should make haste to Rome and by the promise of a great sum of Money to the Pope and Cardinals procure his Consecration That so he might more effectually hurt them sent Four Skilful Eloquent Knights Men of Worth and Credit to present this Epistle to the Pope and whole Roman Court with further instructions to Calumniate the Kings Brothers Who when they had fully Declared the cause of their Errand to the Pope they added other Offences and great Wickednesses the Elect and the others had committed That is to say Their complaints against the Kings Half Brothers Homicide or Murther Rapine Oppressions and Injuries and that the King would not restrain their violence Nor did they omit to tell the Pope of one great injury they did to Mr. Eustace of Len the Arch-Bishop of Canturbury's Official for which all present when it was done were Excommunicated through all the Province of Canturbury and at Oxford before the * That is the University of Barons Vniversity and they further told the Pope That one of the Brothers Geofry of Lesignan Roasted the Kings
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