Assent of the King and of the Lords spirituall and Temporall and of the Commons it is enacted or thus It is enacted by the authority of this present Parliament It is also all one in effect and substance for the words assenteth and enacteth are equivalent in this case 7. H. 7.14 2 H. 7. â—7 as it is holden 7. H. 7.14 2. H. 7.27 whereas otherwise the necessitie of the Assent of all the 3. estates of Parliament is such as without any one of them the rest will lose their labour For it fell out upon a time that the King in Parliament willed that a certain man should be attainted and should lose his hands whereunto the Lords assented But because there was nothing spoken of the Commons it was adjudged by all the Iustices 4. H. 7.18 That this was no Acte that might binde 4. H. 7.18 and therefore the partie was restored Hitherto of the Continuance and Assent of this our first and highest Court This Court of Parliament maketh inlargeth diminisheth abrogateth repealeth and reviveth Lawes statutes c. concerning matters ecclesiasticall capitall criminall common civill martiall maritine c. Cook 1 Inst fol. 110. sect 164. see 4. Inst chap. Parlia ment whereunto after that I shall have added a word or two of the jurisdiction thereof I will proceed to the rest if all judgements as Cicero said be conversant either in the punishment of offences or in the decision of controversies then is the Judgment of our Parliament of as ample authority as the assent of any or all other Courts whatsoever for it declareth the lawes that do bind all persons in all Causes aswell ecclesiasticall as temporall whereof you may see a great many examples in the volume of the old saxon Parliaments how strange a thing so ever the popish Clergie in former times have thought it to be it hath jurisdiction also in such causes which have need of help and for which there is no help by any law already in force And whereon the erronious Judgments of any other Courts must be reversed by a higher authority this Court doth not only reverse the errors of the upper Bench formerly called the Kings Bench which is superior to all other but it may also amend the errors committed by the Parliament it self if any such shall at any time appeare Ecclesiasticall Courts were many in number diverse in nature whereof the Chiefe was the Convocation of the Clergie of the whole nation of England and Wales which was assembled together with the estates of Parliament and it consisted of the Deanes Chapters Archdeacons Procurators of all the Cathedrall Churches the next were the 2. provinciall Synods of Canterbury and of Yorke to the later of the which there were only three Bishopricks subject that is to say Durham Carlisle and Chester and all the rest owed their obedience to the See of Canterbury After those were the generall Courts of the Arch-Bishops of Canterbury that is to say the Consistory or Court of the Arches for Appellations the Court of Audience of the Chancellours Court which was wont to be in the Arch-Bishops house The Commissaries or the Praerogative Court which is now in being for probate of Testaments and the Court of Faculties for dispensations then followed the speciall Courts of this Arch-Bishop namely his Consistory holden by his Commissary at Canterbury for his diocaesse and lastly the Court of those peculiar Deanaries which did belong unto him and do ly in the diocaesses of other Bishopps The other Arch-Bishops and each other Bishop had in his owne Diocesse the Court of his Chancellour and the Court of his Archdeacon or his Officiall But forasmuch as the description of these ecclesiasticall Courts perteineth to another learning I meane to the Civill and Canon Laws by which they were governed and do withall require a double treatise by themselves I will content my self with this bare enumeration of them at this time and bend my labour to the discovery of the Lay or temporall Courts that now have place amongst us Lay Courts were of two sorts The sorts of Lay Courts in antient time at the first only base and high concerning the beginning whereof I read that even as Moses the speciall minister of Justice appointed by God finding himself unable to sustain the burden of deciding all the Controversies of the people Deut. 1. Exod. 18. did set Judges over Tribes Hundreds Fifties and Tenths of the multitude to whom he referred the determination of smaller causes reserving to himself the knowledge of matters that were of greater importance so also that Saxon but Christian King of England Alfred divided his whole Realm of England first into Shires Division of the Realm for juris diction then those shires into Rathes Rapes or Rideings and these again into Wapentakes or Hundreds and lastly those also into Leets Barons or Tything and did withall establish jurisdiction in every of these permitting to the Reeves or Judges of the lower roomes authority of hearing smaller suites granting greater power to the Shiriffs and Aldermen which have charge of greater Assemblyes and detaining to himself the decision of such matters as by just cause of appellation either for Law or equity should be brought unto him This Court of the whole Shire was of two sorts whereof the one then called Scyre-Gemote that is the Assembly of the Shire and now termed the Sheriffs turn was then as now also holden twice in one year And this Court was of like jurisdiction to the Court of the Leet or of the Boroughs or Tything as it was then called The second and the Hundred Court then named Hundre des-Gemote was in those appointed to be holden once in a month at the least and that was of like nature to the County Court which is now kept every month also unto the Court Baron antiently called healgemote and corruptly halymote that is as I said the Court of a Hall or chief place which is now at this day to be kept and maintained once in three weeks if the Lord will so have it I read further more in the Laws of the Saxon King Edgar thus ne Gesece nan man Sone Synz c. Let no man seek to the King in matter of variance unless he cannot find right at home but if that right be too heavy for him then let him seek to the King to have it lightned The very like whereof is to be seen in effect in the Laws of Canutus the Dane sometimes King of this Nation also The hygh Court of justice before the Conquest for Laws and equity Out of which laws I gather four things First that every man had means to use in these base Courts at home in the Countrey for the recovery of his right Secondly Then that no man ought to use it out of the County or to draw his plea from thence without good cause both which things lye plainly in the letter of this Law Thirdly that
the King himself hath a high Court of Justice wherein it seemeth that he sate in person for the words be Let him not seek the King And lastly that the same Court of the King did judge not only according to meer right and Law but also after equity and good conscience For first the words be unlesse he cannot find right at home by which it is permitted that then he might use to go to the King for right Secondly Again if that right be too heavy then let him seek to the King c. whereby it is meant that he should have the rigor of the Law mitigated by the conscience of the Prince and after this order and in these two sorts of Courts was all Justice administred untill the time of King William the Conquerourâ— during whose reign as allso under the Government of King Rufus his son it is to be thought that the ordinary course of Justice was greatly disturbed as well by reason of the intestine and sorraign wars as also because that these two Princes governed by a meer and absolute power as in a Realm obteyned by Conquest but yet it was so farre off that any of them did utterly abolish these Courts That the same did not only remain during all their times howsoever put to silence for the season but also had continuance afterwards and do yet as they may here bear life amongst us for as I said those base Courts of the Shires Hundreds Boroughs and Mannors do yet continue in manuer the same in substance that they then were and that the pleas ought no more to be taken from then now in our dayes without cause then they ought to have been may evidently be proved by the writs of Tolt pone accedas ad Curiam and Recordari vhich wee now yet use and that to this only end to remove suits upon cause out of one Court into another The like I may also affirm of that high Court which then followed the King himself for albeit that many particular high Courts be now since that time advanced by reason that the multitude of suits still increasing with the iniquity of the age of the World would not suffer them all to be ordered in one place without both into lerâ—ble delay of matters and grievous vexation of men yet nevertheless if ye will throughly behold the matter and subject about which all these Courts are now occupied you shall perceive that they are but as it were so many branches sprung up out of that one tree or stream derived from the same spring and sountaine For letting pass those Courts of the Country which I have already touched also those other small Courts of record that be in Cityes and Townes corporate Pipowders of Pies and powldres that is dusty feet because it is for Travailers to the sayr yea and the Pipowders Court it self that lasteth no longer then the Fayr All our higher Cours at this day be either Courts of right and Law or else of equity and conscience as they then were although they now require another subdivision than they then had And that if you will may be this The Courts of Law do either handle civil or criminall causes The late division of Lay Courts And these Civill causes be either moved between the Lord Protector and the people of England formerly between the King his tenants and subiects or else between one subiect and another Those Courts of Law that hold plea of common or civill matters that grew between the Prince and subiects be these The Exchequer devised for the safe custody of the lands formerly called the Crowne lands and for the faithfull answering of the revenues of the same The Court of wards and Liveryes and the Court of the dutchy of Lancaster both which are now altered And the Chancery Court at the least so far forth as the same hath to do with Petitions traverses de droith and such like Those other Courts of Law that have jurisdiction of civil or Common Pleas arising between subiect and subiect be these The Common Place or Bench The Marshalsea for matters heretosore within the vierge or limits assigned to the Kings house or Palace The Admiralty Court which was for marine Causes And the upper Bench in time past termed the Kings Bench so far forth as it yet doth retain jurisdiction in matters of debt Assumptions Actions upon the Case and such other things properly tryable in the Common Place and not there Criminall causes do generally belong to the upper Bench and have formerly belonged to the Starre Chamber or else particularly do appertaine to the Constables Court to the Marshasie Admiralty Goale delivery Oyer and Detorminer and Sessions of the Peace And these be the Courts of Law that have ordinary resort and jurisdiction The Courts of Conscience be these First the Chancery open to all men at all times Secondly the Court of the Request that did hear only the suits of poor men and of the Princes servants Thirdly The Chancellors Court that was within the Exchequer and Fourthly two Councills which formerly were established the one in Wales and the other in the North Country both consisting of President and Councill now taken away which were like unto those which in France are called Parliaments as I said before But now to the end that it may the more evidently appear how and by what degrees of increase these many Courts have sprung out of that one it is requisite that I proceede to the history of King William the Conqueror where I left and to descend from him downward untill I have set all on foote The Court of Exchequer The Authority of this Court is of originall jurisdiction without any Commission Cook 4. Inst c. 11. p. 130. It is confessed by all writings that the Conqueror after such time as he had suppressed the forces of those that made head against him here did immediatly cause the whole Realm to be exactly surveyed by Shires and Hundreds severally aswell for the understanding of the woods pastures meadows and tillage thereof The first survey of the Kingdome was by Alfred about 872. the Register thereof was kept in his treasury at Winchester Daniell f. 11. as also of the profitts of Churches Mills Villaines and of all other Commodities whatsoever The record of which survey was then called Domesday Book and was appoynted to be kept in the Exchequer at Westminster where it now resteth And that Court did he then also newly erect for the ordering of his revenues after the name of the Exchequer in Normandie it had not only the government of revenues of the Duke there but was also the soveraigne Court for administration of justice amongst his subjects Custom Normand 48.52.635 and so continued untill that Lewis the 12. King of France converted it into a Court of Parliament consisting of President and Counsellors and established it at Roan in Normandie where it now remaineth But this his Exchequer in England had
was then fled unto as to the onely Altar of help and refuge But whence the Court of Equity took a beginning to be a distinct Court I have made proof as I think that the power thereof was alwaies in exercise and considering that formerly all the Princes of this Realm and now the Lord Protector of this Nation is the immediate Minister of Justice under God and sworn to deliver to the people aequam rectam Justitiam I cannot see how that it may otherwise be but that besides his Court of meer Law he must either reserve to himself or refer to others a certain preemment power by the which he may both supply the want and correct the rigor of that positive or written Law which of it self neither is or can be made such a perfect rule as that a man may thereby square out Justice in all causes that may happen For written Laws must needs be made in a generality and be grounded upon that which happeneth for the most part because no wisdome of man can foresee every thing in particular which in time experience doth beget and therefore although the written Law be generally good and just yet in some speciall case it may have need of correction by reason of some considerable circumstance falling afterwards which at the time of the Law making was not forseen whereas otherwise to apply one generall Law to all particular cases were to make all Shooes by one last or to cut one Glove for all hands which how unfit it would prove every man may readily perceive And here of this Equity hath this name in Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. secundum and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 id est conveniens assimulatum because it doth not onely weigh what is generally meet for the most part but doth also consider the person time place and other circumstances in every singular case that cometh in question and doth thereof frame such a judgement as is agreeable and convenient to the same so that in summe the written Law is like a stiffe rule of Steel or Iron which will not be applyed to the fashion of the Stone or Timber whereunto it is laid and Equity as Aristole saith well is like to the leaden rule of the Leasbian Artificers which they might at pleasure bend and bow to every Stone of whatsoever fashion And hereby it may also appear what use there ought to be aswell of the positive or written Law as also of Equity it self for seeing that the positive or common Law is made meet for the most part and that Equity is added for help in few or singular causes it followeth by reason that commonly and singularly the positive Law should be put in ure and that Equity should be appealed unto but onely in rare and extraordinary matters least on the one side if the Judge in Equity should take Jurisdiction over all it should come to pass as Aristotle saith that the best should bear rule for so he calleth man whose judgement if it be not restrained by the chain of Law it is commonly carried away with unruly affection and on the other side if onely streight Law should be administred the help of God which speaketh in that Oracle of Equity should be denyed unto men that need it And therfore even as two Hearbs being in extreamity of heat or Cold be by themselves so many poisons and yet if they be skillfully contempered will make a wholesome medicine so also would it come to pass if either this Arithmeticall Government as they call it by rigor of Law onely or this Geometricall judgement at the pleasure of the Commissioners onely should be admitted And yet if they be well compounded together a most sweet and Harmonicall Justice will follow them And as a good Chancellour then would not so the Commissioners now will not make this Proclamation Nullus recedat a Cancellaria sine remedio and so receive Cognisance of every complaint which shall be made before them upon whatsoever suggestion and thereby both overthrow the authority of the Courts of Common Law and also bring in upon men such a confusion and uncertainty as hardly any man shall know how or when he shall hold his own assured but they will rather have the Common Law to have her just honour and not to be interrupted in her right course or current and will yet withall provide that the Gate of mercy may be opened in all calamity of Suit to the end that where need shall be the rigor of right may be amended by the Judgement of Equity in which behalf this our age hath greatly to thank God for that by the Ministry of our Protector he doth not onely leave to us the right use of the Courts of meer Law but hath also hitherto placed in that Praetoritall Room or Chancery men no less learned in the common Laws of the Nation than accomplished with the skill of this moderation and equity I see that occasion is offered me to enter into the handling of some few questious concerning the order of Chancery and chiefly of this one whether it be meet that the Commissioners should appoint unto themselves and publish to others any certain rules or limits of equity or no about the which men Godly and learned have differed in opinion For on the one part it is thought as hard a thing to prescribe equity any certain bounds as it is to make one generall Law to be a meet measure of Justice in all particular causes And on the other side it is said That if it be not known aforehand in what cases they will reach forth their help and where not then neither shall the people be assured how or when they may possess their own in peace nor the practiser of Law be able to inform his Clyent what may become of his action The later of which opinions I hold to be the best according to the late Regulation of the high Court of Chancery together with the Common Law in August the 22th Anno 1654. by his Highness the Lord Protector and his Counsell For though equity cannot be limited yet as it puts an end to controversies it must have certain rules prescribed to it otherwise it can neither be called a Court nor can the Suitors be certain of any relief to be had therein which Court were it so would soon be destroyed Because this and the like matters be of more difficultie than that I may with modesty take upon me to determine them And for that also it is not my present purpose to dispute what is convenient to be done in any Court but rather to discourse the beginning and acknowledge the benifit of them all I will onely wish this one thing That before any motion should be made for either the parties Plantiff or Defendant 4. or 5. dayes notice thereof were left with the Clerk in Court on the other side to defend that motion that so he
only the direction of his demeasns and receipts the administration of Common justice continuing still in that other Court of his as it was before his coming hither For proofe of which matter I call to witnesse Gervasius Tilberiensis a learned man that lived so neer to the time of the Conquest that he confesseth he had talk with Henry Bishop of Winchester which was son to the Conquerours sister This man was an officer of the Exchequer here and penned speciall dialogues of the observations of the Exchequer which he dedicated to King Henry the second and are yet in the Exchequer in the Black Booke there in the first part of which his dialogues ca. 1. he writeth for the advancement of the Antiquity of the Exchequer that it was brought out of Normandy by the Conquerour and for the authority of the Court he hath amongst other words these following Nulli licet statuta Scaccarii infringere vel eis quavis temeritate resistere habet enim hoc commune cum ipsa domini Regis curia in qua ipsc in propria persona jura decernit quod nec recordationl nec sententiae in eo latae liceat alieni contradicere Whereby it is plainly proved the Court of the Exchequer was at that time a distinct Court from that Court of the King in the which he himself sometimes and commonly his justice called then Prima justitia did use to sit The one Court having authority over the Kings demeasns and receipts as Gervasius in all that worke at large discourseth and the other using the power of distributing common justice as his words in this place do sufficiently purport And therefore I cannot but here by the way note the error of them which do maintain that the Exchequer was in this time of King Henry the second a Court of whatsoever Common pleas for all subjects and which for proof of their assertion do alledge the Title of Mr. Glanvilâ—'s book in part thus Et illas solum leges continet consuetudines secundum quas placitatur in curia Regis ad scaccarium for overthrow whereof first I say that the words of this title be not the words of Glanvill himself but of that man whatsoever he were that published his book by print for he entituleth the book thus Tractatus de legibus tempore Reg is Henrici secundi compositus illustri viro Ranulpho de Glanvill juris regni antiquarum Consuctudinum eo tempore peritissimo which doth plainly discover that he speaketh of Glanvilla as of another man and which also lived not then but at another time Secondly I affirm that if it were the speech of Glanvill himself yet if you will take the rest of his words with you then you shall see that they have another meaning for the words stand thus together Secundum quas placitatur in Curia Regis ad Saccarium coram Justiciis ubicunque fuerint which words coram Justiciis ubicunque fuerint do set forth the other Courts of the King whereof I now speake Lastly I undertake to shew not by the title but by the Text of Glanvills owne booke that in his time the Kings Court was one and the Exchequer another for throughout his whole worke he called the Court of Common Pâ—eas Curiam Domine Regis And the Stile of the writ therefore is quod sit coram me vel Justiciis meis But when he cometh to speake of the Exchequer he talketh of Acompts to be made to the King there and of none other matter as namely in the 7. book Ca. 10. where he hath this Si dominus Rex aliquam custodiam alicui commiserit tunc distinguitur utrum ei custodiam pleno jure commiserit ita quod nullum inde reddere compotum oporteat ad Scaeâ—arium aut aliter But before that I leave the raign of this King Henry the second I must add this also that he in the xxiii of his raign did by the advice of some of his Bishops cut the Realm into 6. parts and to every of these parts appointed three Justices the which are by Henry Bracton called Itinerants and in Brittons Book Justices in Eire quasi errantes as Gervas of Tilbery expoundeth it The proper names of which Justices are set down by Roger Hoveden who also describeth their circuits not to differ much from the same that our Justices of Assize do now ride And so I conclude that not only during all the time of the Conquerour himself of William his son and of his other son Henry the first which was a peaceable Prince and a maintainer of the antient Laws and learned in them whereof he had the name Beauclark but also under the government of King Stephen and of this Heury the second there was one Court following the King which was the place of Soveraign justice both for matter of Law and conscience and one other standing Court which was Governess only of the lands and revenues of the Crown The first of which was then called Curia Domini Regis Aula regia Bract. fol. for that the Prince himself did many times fit in person there and had Justices a latere suo residentes as Bracton saith namely his chiefe Justice Chancellour Constables Marshall and others The later was then as it is now calâ—ed Scaccarium eo quod lusibilis Scaccarii formam haberet If you will give credit to Garves Tilber or else it took the name of Statarium Eo quod stabilis et firma effect ibi as Paulus Aemilius and after him Polydore Virgil doth write of it and in this the Prince sate not personally at any time but his chiefe Justice as President and then the Chancellor of the Exchequer the Treasurer and Barons The Common Place And in this manner that high Court of the King continued untill that Henry the third in the 9. yeare of his raign which was about the time in which he aspired to the age of xxi years granted unto his subjects that great Charter of the liberties of England in the 11. Ca. whereof he ordained thus Communia placita non sequuntur curiam nostram sed teneantur in aliquo loco certo whereupon followed two things The first This Court was in being before this statute it doth not appeare that it was then newly e. rected by the stat of M. Ch. that this Court was directed for the determination of all such pleas as did not concern the Crown and dignitie of the Prince but were meerly civill and did belong unto the subjects between themselves The second that this Court was established in a place certain and that was at Westminster to the end that the people might have a standing Seal of Justice wher to they might resort for the tryall of their owne causes and not to be driven to follow the King and his Court but only where the matter respecte him And after this fo 105.108 all the Writs that are recited in Henry Bractons book
〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 OR An Historical Discourse OF PARLIAMENTS in their originall before the Conquest and continuance since Together with the Originall growth and continuance of these Courts following Viz. High Court of CHANCERY UPPER BENCH COMMON-PLEAS EXCHEQUER DUTCHY And other inferiour Courts now in use in this Commonwealth LONDON Printed for Tho. Firby near Grayes-Inne-Gate in Holborn 1656. To the Reader THis treatise though small yet hath undertaken a subject of a very sublime nature to handle the Author being unknown by his person though not for his pains another hand hath presumed to insert a few marginall notes to it with his authorities for what he sets down if thou compare both together thou wilt find that the notes and the text do help one another when thou readest the book some of the notes will serve thee as an opened casement in windows through which thou mayst see more distinctly that afar off which he doth see down without citing his Authorities some others of them are as blinds upon windows not to hinder thy light but to direct and levell thy eyes upwards towards Antiquity with more Infalability But take not the Pen-man of the notes as one that herby would detract any thing from the Authors worth who ever he be for it is easily seen by his Tract that he knew what he writ and and we know that those who are no Novices in the Common-wealth of Learning upon perusall of this tract though many of his authorities are not cited in the very pages yet can judge of Hercules by his foot and that this Author was of no ordinary stature in Antiquity The notes then are to prevent such as are no great proficients in the school of the Antients from saying That the Authors ipse dixit is the warrant of some things he writ and that it hath no other passable or current authority If thou findest faylings herein I have but this to say to thee HumanuÌ„ est errare and if thou be more than meer man then let the Author and the World see thy perfect work that shall be subject to no error and thereby thou wilt gratify mankind more than yet the World hath been Blessed with in any thing except the Bible But not to make the Porch bigger than the Church I desire thee to be candid and to read without prejudice Farewell J. S. An Historicall Discourse of Parliaments and other Courts c. AS without doubt ever since the first propagation of Mankind on the face of the earth there were before the Deluge Cain and Cains and proud Giants and after the Food Cham Nimrod Esau and such like mighty Hunters and injurious Oppressors of the servants of God so from time to time God out of his paternal care and mercifull providence hath excited some of his own indued and armed with Wisdome Authority and power not only to preserve his little ones from the greedy and ravenous jawes of wicked persecutors but also after a sort to resist theire cruelty and chastise them for their excesse and sury For we read in Genesis that Adam immediatly after his Fall had two sons to wit Abell and Cain whom he taught in the knowledg of God and Cain was a wicked person and slew his Brother of which it grieved him not tâ—ll God had afflicted him with the fire and torment of his Conscience and then he cried out Maior est paena mea quam ut sustinere possim Gen. 4.13 After Cain succeeded Lamech born in the house of Cham who corrupted the institution of Marriage by taking to his Wives Adah and Zilla And besides them many others lived impiously even to the dayes of Noah when all the Earth was corrupted wherefore God destroyed all mankind with the rest of the Creatures from the face of the Earth except Noah and those that were with him Gen. 7.23 And againe after that deluge when the Earth was replenished with a multitude of people and consequently contentions were become so numerous that there was not found any one able to determine of their plaints and suites nor place spatious enough to hear the suitors then according to Jethroes counsell to Moses the jurisdiction or charge of Administring Justice was divided among very many and severall places assigned for that especiall purpose that the people as from so many Conduit-pipes the aquam vitae the Law that fountaine wherein the life and liberty of the people is conserved might receive Wherefore the Israelites that were the first people to whom any written law was given were wont to pronounce their Iudgments in the gate of every Citie that the plainnesse and indifferency of their proceedings might appeare so that none might need to go out of the right way to seek for Iustice and of purpose to shew that Iudgment was a divine thing then afterwards in Curia Foro the Athemians also in their temple called by reason of a speciall Iudgment Areopagus and in the place called Palladium et Pritaneum And albeit that the Caules our neighbours now called French-men did hold their Assemblies for justice only at Charnute and Charters a place scituate in the midst of their Country that all the people might have indifferent resort after which order also the Brittons of this Iland did make their meetings as it may well be gathered out of Caesars Commentaries where he plainly writeth that these Druides which then were the Iudges amongst the Galls had fetched that their manner of discipline out of Brittaine where we now dwell yet Nevertheles the Saxons our Ancestors which suceeded them in this country they retained the manner of the old Germans their owne elders who as Tacitus writs Jura per pagos vicosque reddebant and they made distribution of Iustice not in one towne or in the princes palace but also sundry other speciall places within the country And truly the Normans that invaded the posterty of the same Saxons here did not so much after the substance as the name of this the Saxons order which they found at their comming higher for in effect they did but alter the word Gemote which in the Saxon tongue signified in assembly or meeting together into the french word Court or Cour for so it is also found written being a term of the self same force and signification This court or Cour therefore is derived of the latin Curia Cooke Epist to his 4 Instit Curia a cura qui a est locus ubi publicas curas gerebant or Curia 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 from the Lord and so it is the Ks. Court or Palatium Regium which also is fetched from Cura as Valla writeth whereby is notified that heed and care ought to be taken in the decidings of Controversies it signifieth properly both the assembly of men for the hearing of causes in variance and the place also where that assembly is made According to the first of which significations the Saxons as I said called it Gemote a meeting of Gemettan to
meet and agreeably to the second the kings house was first called a Court because the cheife Court of Iustice was holden there But now of Courts some were called ecclesiastical some Lay and other some mixed that is to say both ecclesiasticall and Lay. Of this last sort I find but one namely the high Court of Parliament which I call mixed because it had the Bishops ioyned with the lay Lords to make up the second estate thereof the first estate consisting of the Prince alone and the third of the Commonalty without any of the Clergy at all Of which Court albeit it was rather sommoned to devise and create reforme and repeale laws than to put them in execution yet forasmuch as it both ministred the matter whereupon all the other Courts do work and had in some causes ordinary jurisdictions also I will speake first and then persue my division That which wee now agreeing with the Scotts and Irish do call a Parliament the Frenchmen do call Les Estates or assemble de les estates because with them there as with as also the King Nobilitie and Commons which be the three Estates of the land do meet thereat to consult and the same in Germany is termed a Dyet for these other Courts that carry the name of Parliament in France be but ordinary Courts of Iustice which as Paulus Jovius writeth are thought to have been planted by us and of which our own Councels established in Wales and in the North parts do beare the nearest shew and resemblance This word Parliament saith one is Compounded of parium and lamentum because as he thinketh Peeres of the country did at those meetings lament and complain each to other of the enormyties of their country and thereupon provided redress for the same but this is not very credible But their opinion is more probable as I think which derive the Parliament simply from the French word Parler and that also from the Greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 both signifying tospeake and so by adding the termination mem which is common in the french tongue as well to many nounes as adverbs do make up Parliament meaning thereby an Assembly of men called together to speake or confer of their advice and opinion and so also it may not unfitly be called Parliament for that every man there doth or should speake his mind but Laur. Valla misliketh that kind of Etymologie Cooks 〈◊〉 stit folâ— 110. seâ— 164. yet my Lord Cooke saith that it comes from parler lament to speake ones mind and his authority is not mean I will not take upon me to set downe the very time The beginning of the word Parliament in which the word Parliament came first in use but forasmuch as it was transported out of France it is not unprobable to guesse that it began here shortly after the time of the Norman Conquest One of the most authentique reports The name Parliament was used before the conquest in the time of Edw. the Confessor Cooke 1 Instit sect 164 page 110 that I think can be sound of that name Parliament is in the statute made 3. E. 1. and commonly called where that assembly is said to be le Primer Parliament generall apres coronement le Roy but yet that is not the very first use of the word for in the statute called Articuli clori and published 9. E. 2. these words are read amongst others Tempore progenitorum nostrornm quondam regum Angliae in diversis Parliament is su is c. which word progenitorum and quondam regum must needs reach higher than to E. 1. that was but father to him that spake it So that I can willingly herein subscribe to the opinion of Polydore Virgill who in the eleaventh book of his English history which contayneth the raigne of King Henry the first that was son to the Conqu writing of the great assembly at Salisbury saith thus at illud apposite habeo dicere reges ante haec tempora non consueuisse populis conventum consultandi causa nisi perraro facere adeo ut ab Hemico id institutum jure manasse dici possiâ— c. and a little after more galico vulgo Parliamentum appellant c. and this is so much the more credible as that King laboured by all meanes and especially by restitution of the antient lawes as all histories do agree to heale the hearts of the English men which were before deeply wounded by the oppressions of his father and brother William to the end that he might thereby the better keep the Crowne of this Realme against his elder brother Rob. Witenage Mote Michall Sinoth and Michell Gemote names of Parliament before the Conquest Cook Inslit fol. 110 who both had good right and had moved his claim thereto but what time soever this Court began to be called by the name of Parliament this is certaine thâ—t the same was before known to the Saxons or English men some times by the word Sinoth and Micell Sinoth of the Greeke Synodos now appropriated to ecclesiasticall meetings only and somtimes by these tearmes micel-zemoce wizenazemoze and aupa-picena zemoze that is to say the great meeting the meeting of all the wise men for wizan signifieth a wise man and Gemote a meeting of which last word the names Shiyremoote folemoote and halymoote that is to say the assembly or meeting of men of a Shire of the men of a Towne and of the tenants of a Hall or Mannor had their beginnings also And as Synoth is more used in the acts of Parliament themselves so Gemote is more familiar to the histories thus much as well of the present as of the antient usuall name now let us looke into the thing it self Like as in warr where the King is present in person The conformitie and the reason of the Estates in Parliament and with him the Nobilitie Gentry and Yeomonry there is the force and puissance of the Realme even so in peace wheresoever is the prince as the head to give life that is to say yield the highest and the last assent and where the Baronie consistting of the Lords spirituall and temporall and the Commonalty made up of the Knights and Burgesses be as the body present at his commandement to deliberate conferre consult and consent there is also the Councill and policie of the Realme so that forasmuch as every man from the highest to the lowest is there either in person or by procuration therefore of right every man is said to be bound by that law vvhich doth passe from such an assembly And this frame of policie is both Naturall and Harmonicall 1. Naturall in that it hath an imitation of the naturall body of man truly called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a little vvorld out of the 3 cells vvhereof namely the head breast and belly the vvhole three povvers of the soule do open and utter themselves 2 Harmonicall because from such and so tuned a Base Meane and Treble
which was written in the latter end of the raign of this King Henry the third have this Commandment to the partie quod sit coram Justiciariis meis apud Westmonasterium and not coram me vel Justiciis meis as the former form in Glanvill was And thus began the Court which because it hath power over Common-Pleas wee now call the Common-Place About this time also or not long after some other Courts of Justice were likewise opened The booke called Britton as it may partly appear by Henry Bracton but more plainly by John Britton which followed immediatly after him for in the beginning of the raign of King Edward the first this John Britton then Bishop of Hereford whose name Mr. Bale in his Centuries or his Printers mistaketh and calleth Bekton being singularly learned in the Laws of the Realm did at the commandment of that King and in his name compile a book now imprinted and named Britton in the beginning whereof he d videth all jurisdiction thus First that the King himself had soveraign jurisdiction above all others in his Realm to Judge in all causes whatsoever Secondly that the Marshall of the Kings house had the place of the King to hear and determine the pleas of the Crown within the verge and that the Justices in Erie had like authority in every County once in 7. years Thirdly that the Justices which followed the King wheresoever he went and sate in his place had conusance of erronious Judgement Appeals and other matters of the Crown Fourthly That the Coroner of the Household had his proper power within the verge and that he and others had the order of weight and measure throughout the Realm Fiftly That Sheriffs Coroners Hundredors Burgesses Serjeants and Beadles had and so have their Courts within each of their particular limits Sixthly That Justices being continually at Westminster have power over Common Pleas. Seventhly That the Exchequer at Westminster had authority concerning the Kings Debts and Feeds and all things incident thereunto And Lastly that other Justices had the charge of Assize of the deliverance of Gaols in every County Forasmuch as after this distribution of power to hold plea thus made some of these Courts would not contain themselves within their appointed limits but sought to enlarge their authority by usurping jurisdiction that was appropriate to others Articuli super Chartas ca. 3 4 5. The same King did by Parliament holden in the xxviii yeare of his raign confirm that great Charter for ever and in certain articles as he did call them set forth upon the said Charter did then by like authority of Parliament enact that they of the Exchequer should not take knowledg of any Common Plea That the Seneschall or Steward and the Marshall of the Kings houshould should not have plea in hearing of trespasses Seneschall os Sein a house and Scale skilfull So steward of Stow a place and Wear a keeper contracts and covenants made within the verge And the Chancellors and the Justice of the Kings Bench now the upper Bench should follow him wheresoever he went to the end that he might alwaies have men about him that were able to deliver Law to such as should require it Hitherto as you see there is no express mention in Britton either of the Court of Admiralty the Constables Court or the Chancery and therefore it remayneth that we labour to find out from whence they also fetched their beginnings and that shall we the more easily do if we give heed to this that Britton hath already opened for he leaveth the soveraign jurisdiction of all causes in the King The Admiralâ—y The Brittish and Saâ—on Kings had their Chancellours as Etheldred who began his raign 978 Edw. the Confessâ—â— had Reâ—nbâ—ld for Inâ—â—â— Chaâ—â—â—lor Edgâ—â— had Aâ—uâ—ph and â—â—ded and Edmund had Turkâ—ull and Kâ—ag Atheâ—stone had Wolfaid for his Chanâ—â—lor Cooke 4. Inst â— 97. and Ethel baâ—d had Turketill for his Chancelor about 718. so that whatsoever the King hath particularly de ivered out to others his Justices Commissioners and Delegats that still remaineth in himself and was exercised either by himself in person or by his Chancellour Councellors of a State and Justices of Law that continually attended on him for that service And therefore first concerning the Admiralty I think that the decision of marine causes was not put out of the Kings house and Committed over to the charge of the Admirall untill the time of King Edward the third whereunto I am led partly And then after this subscription of him and his Queene and of the Archbishops and Abbots one Renibaldus is named Cancelarius and in the end of all after the date of the Chreme it is vvritten thus Siwardus Notarius ad vicem Renibaldii Regiae dignitatis Cancellarii hanc cartam scripsi subscripsi The next year after this King VVilliam the Conquerour gave by another Charter to the same Abby sundry Lands in exchange for Windsor the which King Edward had bestowed on them and in the end of this grant he likewise saith Ego Willielmus Dei Gratia Rex Dux Normannorum atque Princeps Cenomannorum hoc scribi precipi scriptum hoc signo deminicae crucis †confirmando stabilivi nostraeque imaginis sigillo insuper assignari curavi And then in order as before it followeth Ego Mauritatus Regis Cancellarius favendo relegi sigillavi Hereby it appeareth that the office of the Chancellor then was at the first to make and seal the Instruments that passed from the Prince and this I call his originall duty because it cannot credibly be shewed of any history as I think that ever there was in England any of sealing of writings or mention of the name of Chancellor before the dayes of this Edward who having spent agreat part of his age in Normandy first brought the use of the Seal from thence into this Nation See before of the antiquity of Chancelors and with it I suppose the name of Chancelor In whose time also Leofricus the Britain is the first Chancelor I find named For that we learned of the Normans our manner of sealing Ingulphus the Abbot of Croyland which came out of Normandy hither in the Train of the Norman Conquerour assureth us writing thus Normancii Cyrographorum confectionem cum crucibus aureis aliis signaculis sacris in Anglia formari solitam in Cerae impressionem mutant c. And that the name of him that kept the seal came out of France also it may be probably conjectured both by the word which we found nearer to the pronunciation of the French than of the Latin and also by the office it self which hath been exercised in France under the same name and nature that we use it ever since the time of Charlemaigne at the least And so it is manifest that the Chancelor did bear this name and had the Charge of the Kings seal and writings both before and in
the reign of the Conquerour the which also without all doubt he hath ever since continued Howbeit when I say writings I do not mean he had the authority of making originall writs here before the time of the Conquest for those came out of Normandy also as the very forms of the most of them being expressed in the book of the Norman customes may leade a man to think and that rather also because the Saxons our Ancestors whose proceedings in Judgment was deplano and without solemnty did not use so far as I have hitherto observed to call the parties by any writ or writing but to send for them by certain Messengers which they tearmed Theins that is to say Ministers or Serjeants yea and what that manner of summoning by Writ was brought into use here forthwith committed to the Chancellour For Originall Writs of this time had this form Teste Ranulpho de Glanvilla c. Which was the name of the chief Justice of the Kings Court then under whose sealing they passed abroad Nevertheless for as much as it is to be read in Bracton quod omnia breâ—ia de pace which are prohibitions indeed irrotulari debent in Rotulo de Cancellaria and for that not onely the Statute of Westminster the second which was made in the 15. year of King Edward the first saith in plain words that the for me donne in reverter satis est in usu in Cancellaria and hath often mention of the Clerks there But also that other Statute of articuli super Chartas hath the express names both of the Chancellour and Chancery it must be confessed that the Chancellour had the keeping of the Rolls of Record and the making out of Writs either at the same time that the common lace was erected or not long after that is to say either under the reign of King Henry the third or else in the beginning of King Henry the third or else in the beginning of Edward the first which later King as Judge Prisot reporteth of him laboured carefully to reduce our Law into order and writing and in mine opinion may therefore not unworthily be accounted our English Justinian And albeit that the House of the Rolles which hath been of long time as it were the Colledge of the Chancery men was builded at the first by the same King Henry the third for another purpose namely for the sustentation of such Jews as would give their names to Christ and was thereof called Dominus Judeorum conversorum Mat. Paris yet that hindreth not but that the same House might shortly after be converted to another use upon experience as it is likely that sew converts was found amongst the Jews to inhabite it and then thus have you the Chancellour or now instead of him the Commissioners furnished with the Seal of Grace and Seal of common Justice and with him or them the Chancery for the keeping of Records and the Clerks thereof for the framing of Writs Coment â—43 and as touching the authority in Judgement I see not what Jurisdiction he had his Court of Equity and some powers given by late Statutes onely excepted which is not incident to the making or keeping of Records for he could not reform the errour of another Court yea errour committed in his own Court was reversed in the Bench of the King now called the upper Bench. Neither could he try any Issue taken before him â—4 E. 1. â—5 For that also was and is to be done in the upper Bench as a thing without his Jurisdiction It remaineth then that I speak of this Court of Equity which in my opinion is not altogether so antient as others Os the high Court of Chancery for as you have heard before King Edward the first and the Parliament took order that the Chancellour should follow the King even as the Justices of the Bench did to the end that he might alwaies have at hand all men for his direction in Suits that came before him the meaning hereof as I think was that the Justices should inform him of the Law and the Chancellour of Equity for otherwise I see not what use he could have of the Chancellour in this behalf but onely for that he being commonly a Bishop or other Spirituall person was the more meet after the opinion of men in those dayes to give advice according to equity and conscience In which respect also he was visitor for the King and bestowed his Benefices so that such as then sought relief by Equity were Suitors to the King himself who being assisted with the Chancellour and Counsell did mitigate the severity of Law in his own person when it pleased him to be present and did in absence either refer it to the Chancellour alone or to him and some others of the Counsell And this continued if I be not mistaken untill the 20th year of the reign of King Edward the third in which year when he made preparation for his wars in France it was enacted by Parliaments that the Chancellour and Treasurer should determine all complaints against extortion of Officers maintenance imbracery and such like offences and albeit that indeed this authority be neither granted to himself alone nor doth plainly erect any Court of Equity yet for as much as it is the very first severall power of this sort that I find committed to him from the King in which also it is to be thought that the proceeding was extraordinary and absolute even as the Kings own before was I suppose it to be the laying of the first stone of the foundation of the Chancellours Court But after this in the 36th year of the same Kings reign it was provided by Parliament That if any were grieved contrary to the Articles of that Parliament or others That he should have remedy in the Chancery without other Suit by which Law the Chancellour was not onely made sole Judge in this newly erected Court but was enabled so to proceed in Judgement after his own discretion or otherwise the words without other Suits were not Beneficiall After this also his authority was inlarged by sundry Parliaments as by one to award damages upon untrue suggestion made before him by another To send Proclamation of Rebellion against such as would not appear And by others To grant Commissions of divers kinds and to do many other things whereof it is not needfull to make rehearsall here And truly as these be first beginnings that I can find in Statute Law concerning this authority of Chancery Court so also I do not remember that in our reports of Common Law there is any mention of causes drawn before the Chancellour for help in Equity but onely from the time of King Henry the fourth in whose dayes by reason of those Intestine troubles Feofments to uses did either first begin as some have thought or else did first grow common familiar as all men must agree for remedy in which causes of uses chiefly the Chancery Court
might not be put off to shew cause from day to day which rather increaseth trouble and charges than either furthereth the suit for the hearing or benefits the parties in their cause Which thing whether it might be more couvenient than the present manner of motions I will leave to the judgement of such as have more wisdom to devise and power to execute And will sum up the rest of our Courts and make an end The Court of the Dutchy or County Palatine of Lancaster which is by a late Act of Parliament committed to the custody of a Commissioner grew out of the grant of King Edward the third The Court formerly called The Dutchy Court the jurisdiction whereof is now committed to a Commissioner or Commissioners County Palatine of Lanc. erected in Parliament 50 E. 3. and Iustices of Assises Gaole delivery and of the Peace have been since the erection of it Cook lib. 4. f. 204. 205. who first gave that Dutchie to his Son John of Gaunt and endowed it with such royall rights as the County Palatine of Chester had And forasmuch as it was afterward extincted in the person of King Henry the 4th by reason of the union of it with the Crown of the Realm the same King knowing himself more rightfully Duke of Lancaster then King of England determined to save his right in the Dutchy whatsoever should befall the Kingdom And therefore he separateth his Dutchy from the Crown and setleth it so in the naturall persons of himself and his heirs as if he had been no King or Pollitique Body at all in which manner it indured during the reign of King Henry the first and of King Henry the 6th that were descended of him But when King Edward the 4th had by recovery of the Crown recontinued the right of the House of York he feared not to appropriate that Dutchie to the Crown again And yet so as he suffered the Court and Officers to remain as he found them And in this manner it came together with the Crown to King Henry the 7th who liking well of that policy of King Henry the fourth by whose right he also obteined the Kingdom made by separation of the Dutchie as he hath done and so left it to his posterity It appeareth in our Books of the Tearms of King Edward the 4th The Star Chamber and the Report of cases happening under the usurpation of Richard the third This Court was in being before 28 E. 3. Cook lib. That sometimes the King and his Counsell And sometimes the Lord Chancellour and other great personages did use to sit Judiciall in the place then and lately called for that it is decked with certain Stats the Star Chamber But forasmuch as be like that Assembly was not ordinary therefore the next King Henry the 7th and his Son Henry the 8th took order by two severall Laws That the Chancellour assisted with others there named should have power to hear complaints against Reteinors Embraceries misdemeanours of Offices and such other offences which through the power and countenance of such as do commit them do lift up the head above other faults and for the which inferiour Judges are not so meet to give correction And because that place was before time dedicated to the like service it hath ever since also been so used untill it was taken away in the late King Charls his reign The Court of Requests The Court of the Requests being of the same nature as I said with the Chancery took beginning by Commission from King Henry the 8. before which time the Masters of the Requests had no warrant of ordinary Jurisdiction This Court had no warrant by act of Parliament or prescription to establ shit Cook lib. 4. fol. 97. but travailed between the Prince and Petitioners by direction from the mouth of the King The same King also established one Court of President and Counsell in the Marches of Wales 34. 35. H. 8. The Court of the Marches of Wales and that of the North parts were taken away in the late K Ch. his reign Anno 17. Car. And another like Court of President and Counsell in the North parts which Court in Wales was a Court of Law in its principall Jurisdiction although it did withall exercise other powers of equity by vertue of other severall Commissions that did accompany the same and the Court of York was in its principall Jurisdiction Equity and did exercise other powers by vertue of other Commissions Court of Wards The Court of Wards began about the 32th year of the reign of King Henry the 8 who also in the next year after added thereto the office of the Masters of the Liveries and withall conjoyned the names ordaining that it should be called The Court of his Wards and Liveries The same King likewise had erected one Court of the generall Surveiours of his Lands and one other of the Augmentations and Revenues of his Crown and a third Court of the first fruits and Tithes of Benefices But all these were afterwards dissolved and by Queen Mary united to the Court of Exchequer Thus having run along these Courts deriving them from the Crown I might proceed yet further to shew the originall and beginnings of some Courts erected by the late Parliament and the nature and beginning of the High Court of Justice that was erected in Westminster Hall Anno 1648. but they being so fresh in the memory of this age I shall not need to make mention thereof FINIS