we meet with these Military Laws or Laws of Knights fees made for Tenants and other people of the common sort 84. He who hath one Knights fee 't is the aforesaid Hoveden speaks let him have an Habergeon or Coat of Male and a Helmet or Head-piece and a Buckler or Target and a Lance and let every Knight have so many Habergeons and Helmets and Targets and Lances as he shall have Knights fees in his demeans 85. Whatsoever Free-holder that is a Lay-man shall have in Chattel or in Rent and Revenue to the value of Sixteen Marks let him have a Coat of Male and a Head-piece and a Buckler and a Lance. 86. Whatsoever Lay-person being a Free-man shall have in Chattel to the value of Ten Marks let him have a little Habergeon or Coat of Male and a Capelet of Iron and a Lance. 87. Let all Burghers or Towns-men of a Corporation and the whole Communities of Free-men have a Wambais and a Capelet of Iron and a Lance. 88. Let no one after he hath once had these Arms sell them nor pawn them nor lend them nor by any other way alienate them from himself or part with them nor let his Lord alienate them by any manner of way from his man i. e. his Tenant that holds under him neither by forfeit nor by gift nor by pledge nor by any other way 89. If any one shall dye having these Arms let them remain to his heir and if the heir be not of such estate or age that he may use the Arms if there shall be need let that person who shall have them the heir in custody have likewise the keeping of the Arms and let him find a man who may use the Arms in the service of our Lord the King if there shall be need until the heir shall be of such estate that he may bear Arms and then let him have them 90. Whatsoever Burgher shall have more Arms than it shall behove him to have according to this Assize let him sell them or give them away or so dispose of them from himself to some other man who may retain them in England in the service of our Lord the King 91. Let no one of them keep by him more Arms than it shall behove him according to this Assize to have 92. Let no Jew keep in his possession a Coat of Male or an Habergeon but let him sell them or give them or in some other manner put them away in that wise that they may remain in the service of the King of England 93. Let no man bear or carry Arms out of England unless it be by special order of our Lord the King nor let any one sell Arms to any one who may carry them from England nor let Merchant or other carry or convey them from England 94. They who are suspected by reason of their wealth or great estate do free or acquit themselves by giving their Oaths The Justices have Power or Jurisdiction given them in the case for this purpose If there shall be any who shall not comply with them the Justices the King shall take himself to the members or limbs of such persons and shall by no means take from them their Lands or Chattels 95. Let no one swear upon lawful and free-men i. e. in any matter against or concerning them who hath not to the value of Sixteen or Ten Marks in Chattel 96. Let no one as he loves himself and all that he hath buy or sell any Ship to be brought from England nor let any one carry or cause to be carryed out of England Timber for the building of Ships 97. Let no one be received or admitted to the Oath of bearing Arms ' but a Free-man To bring once for all something concerning a Free-man that may not be beside the purpose The ancient Law of England bestowed that name only upon such persons as many as either being honoured by the Nobility of their Ancestors or else out of the Commonalty being of ingenuous Birth to wit of the Yeomanry did not hold that rustick fee or Tenure of Villenage dedicated to Stercutius the God of Dunghils and necessarily charged and burthened with the Plough tail the Wain and the Dray which are the hard Countrey-folks Arms and Implements To this purpose makes the term of Rustick or Countrey-man above mentioned in the Statutes of Clarendon and the place of Glanvill cited in the Tryal of Ordeal That the business may be more clearly asserted a Suit of Law being waged in the time of Edward the First betwixt John Levin Plaintiff and the Prior of Bernwell Defendant I have taken the Story out of an old Manuscript and the Reports of our Law and the Collection or Body of the Royal Rescripts do agree to it it was then after several disputes bandied to and fro and with earnestness enough decided by the judgement of the Court that those Tenants which hold in fee from the ancient Domain of the Crown as they call it are by no means comprehended under the title of free-men as those who driving their labour around throughout the year pay their daily Vows to Ceres the Goddess of Corn to Pales the Goddess of Shepherds and to Triptolemus the Inventer of Husbandry or Tillage and keep a quarter with their Gee Hoes about their Chattel And now death hath put an end to King Henry's Reign And I also having made an end of his Laws so far as Histories do help me out do at the last muster and arm my Bands for the guard of my Frontiers I wish they may be of force enough against Back-biters CHAP. XIX Of Law-makers Our Kings not Monarchs at first Several of them in the same County The Druids meeting-place where Under the Saxons Laws made in a general Assembly of the States Several instances This Assembly under the Normans called Parliament The thing taken from a custome of the ancient Germans Who had right to sit in Parliament The harmony of the Three Estates BUt however Laws are not without their Makers and their Guardians or they are to no purpose It remaineth therefore that we say somewhat in general of them They are made either by Use and Custom for things that are approved by long Use do obtain the force of Law or by the Sanction and Authority of Law-givers Of ancient time the Semnothei the Kings and the Druids were Law-givers amongst the Britans I mean Concerning the Semnothei whatsoever doth occurr you had before The Kings were neither Monarchs of the whole Island nor so much as of that part of Brittany that belonged to the Angles For there were at the same time over the single County of Kent four Kings to wit Cyngetorix Carvilius Taximagulus and Segonax and at the same rate in other Counties Wherefore we have no reason to make any question but that part wherein we live now called England was governed by several persons and was subject to an Aristocracy according to what Polydore Virgil John Twine
is called Cambro-Britannia that is Welsh Britanny and Scotland possest by the Scots is in like manner called Scoto-Britannia that is Scotch-Britanny which now together with England since the Union of the two Kingdoms goes under the name of Great Britain In the Author's PREFACE The Guardian of my Threshold So Limentinus among the Romans was the God of the Threshold qui limentis i. e. liminibus praeest but it may be taken for the Officer of the Gate the Porter who gives admission to strangers In a different Character Accordingly in the Latin the Author's Citations are printed in Italick which because they are so frequent I thought fit rather to notifie by a distinction as usual in the Margin thus Intercidona Pilumnus Deverra These were Heathen Deities to whom they attributed the Care of their Children whom else they thought Silvanus might like Oberon King of the Fairies surprize or do some other mischief to In the FIRST BOOK CHAP. 1. Pag. 2. lin 23. Among the Celts and Gauls Who are reckoned for one and the same people as for instance those Gauls who removed into the Lesser Asia mixing with the Greeks were called Gallo-Graeci but by the Greeks were styled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 whence by contraction I suppose 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 41. Bellagines that is By-Laws From By that is a Village Town or City and Lagen which in Gothish is a Law so that it signifies such Laws as Corporations are govern'd by The Scots call them Burlaws that is Borough-Laws So that Bellagines is put for Bilagines or Burlagines This kind of Laws obtains in Courts Leet and Courts Baron and in other occasions where the people of the place make their own Laws CHAP. II. Pag. 4. l. 7. Adrastia Rhamnusia Nemesis Which is all but Nemesis the Goddess of Revenge called Adrastria from King Adrastus who first built her a Temple and Rhamnusia from Rhamnus a Village in the Athenian Territory where she was worshipped L. 42. Elohim that is Gods And so Judges are properly called according to the original notation of the word whose Root 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 alah though in Hebrew it signifie to curse yet in the Arabick Language a descendent of the Hebrew it betokens to judge Thus 't is said in the Psalms God standeth in the Congregation of the Gods and I have said Ye are Gods c. L. 45. It subjoins to it the name of God To wit that Name of his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 El which signifies a mighty God In this sense the Cedars of God are lofty stately Cedars and by Moses his being fair to God is meant that he was exceeding fair Pag. 5. lin 18. Not only Berecynthia but also Juno Cybele Why Cybele is the very same Goddess who was called Berecynthia from Berecynthus a Hill of Phrygia as also Cybelus was another where she was worshipped And she had several such Names given her from the places of her worship as Dindymene Pessinuntia Idaea Phrygia This then was a slip of our worthy Author's memory or his haste CHAP. III. Pag. 5. lin 34. Not by the number of dayes but of nights Thus in our common reckoning we say a Sennight that is seven nights septinoctium for what in Latin they say septimana seven mornings and a fortnight that is fourteen nights Again for Sundayes and Holy-dayes the Evening which concludes the fore-going day is said to be their Eve that is Evening And the Grecians agree with us in setting the night before the day in that they call the natural day which is the space of twenty four hours comprehending day and night 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Night-day not Day-night CHAP. IV. Pag. 6. lin 22. King Phranicus It is so ordinary a matter for Historians when they treat of things at great distance of time to devise Fables of their own or take them up from others that I doubt not but this Phranicus was designed to give name to France whereas it was so called from the Franks who came to plant there out of Franconia a Countrey of Germany called East-France L. 29. With Corinus one of the chief of his company From whom Cornwall had its name formerly called in Latin Corinia or Cornavia say some now Cornubia And possibly if that were so Corinium also or Cirencester a Town in Glocestershire and Corinus too the River Churne that runs by it owe their appellations to the same Noble person L. 31. New Troy that is London Called also Troynovant and the people about it called Trinobantes or Trinovantes from whom also the City it self was styled Augusta Trinobantum that is the Royal Seat of the New Trojans L. 40. King Belin. Who gave name to Billinsgate that is Belin's Gate as King Lud to Ludgate Pag. 8. lin 39. Eumerus Messenius Some such fabulous Writer as our Sir John Mandevil who tells us of People and Countreys that are no where to be found in the World CHAP. VI. Pag. 9. lin 19. In the time of Brennus and Belinus The first of these was General of the Gauls who were called Senones and going into Italy with them sackt Rome There he built the City Verona called by his Name Brennona as he had done Brennoburgum now Brandenburg in Germany From his prowess and famed Exploits it is supposed that the Britans or Welsh do to this day call a King Brennin Of the other viz. Belinus some mention hath been made already CHAP. VII Pag. 10. lin 24. Locrinus Camber and Albanactus From the first of these three Brethren to wit Locrinus it is said that the Welsh call England Lhoegr that falling to the eldest Sons share from the second Camber that a Welsh-man is named Cumra and the Countrey Cambria and from the third Albanactus that Scotland or at least good part of it retains the term of Albania a title still belonging to the King of Britain's second Brother the Duke of York Though for my part for this last name of Albanactus I am somewhat of opinion that it might be devised by some smattering Monk purposely in favour of the Trojan Story as much as to say in a mungrel word Alba 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 King of Alba a City of Italy built by one of Aeneas his Sons L. 29. Gavelkind From the Saxon gafel or gafol a Debt or Tribute and cyn or kynd the Kindred or Children or as Mr. Lambard gif eal cyn i. e. given to all who are next of Kin or as Vorstegan give all kind i. e. give to each Child his part An ancient custom of the Saxons whereby the Fathers Estate was equally divided amongst his Sons as it is still amongst the Daughters if there be no Sons It obtains still in several places especially in Kent by the concessions of the Conqueror Pag. 11. lin 22. The Laws of second Venus Not having Plato by me nor any other means to inform my self better I imagine that by the first Venus they mean the force of Lust and Beauty which doth so naturally
was his rescript and Juraque ab hâc terrâ caetera terra petet was Ovid's prophecy à nobis leges Romanas Caesaris vobis transmitti quibus in regno Britanniae uti voluistis Leges Romanas Caesaris enim nuper miseratione Divinâ in regno Britanniae fidem Christi habetis penes vos in regno utramque paginam Ex illis Dei gratiâ per concilium regni vestri sume legem per illam Dei patientiâ vestrum reges Britanniae regnum vicarius verò Dei estis in regno What the sequel hereof was thus only appears that after he had in lieu of the Archflamens at London York and Caer-leon constituted three Archbishops with twenty-eight Bishops in other places making large Gifts of Possessions to their Churches Ecclesias Matthew the Monk of Westminster speaks it cum suis coemeteriis if we may believe that then there were with us Church-Yards for Burials ita constituit esse liberas ut quicunque malefactor ad illa confugeret illaesus ab omnibus remaneret with which the British Constitutions and Customs have here their last limit CHAP. III. The Saxon Customes and Laws except what is in Lambard's Archaeonomy during their Government until the Normans ITALY had at length so much to do in defence of her self that she could hardly afford help to others Gothick incursions grew so violent and dangerous the Picts and Scots were as troublesome to the Britains who desiring aid of the Romans were in their expectations frustrate To provide therefore some other way Vortigern being then King Martial Succour against the Neighbour violence of the Northern People of this Island was requested and obtained from Germany Thence hither issued Saxons Jutes some will have the old name Vites and Angles which differed more in name than Nation and are in good Authors but Synonymies of the same Countrey-people These in process of time contrary than the Britains first hoped established to themselves in divers parts of that we now call England several Kingdomes extruding Vortigern's posterity and their subjects into the Western parts where to this day they remain And how can we but conjecture that of particular Customes of Law-government in their own Countrey they made requisite use in this their part of the Island What those were until Christianity made some abolition may best be observed out of Tacitus de moribus Germanorum who relates divers of their Customes and Rites Religious But at inquisition of their Superstition we aim not their profane Laws being chiefly proposed for Collection I. Rex vel Princeps saith Tacitus speaking of some of them whose antique Reliques seem yet to continue in our Municipals prout aetas cuique prout nobilitas prout decus bellorum prout facundia est audiuntur authoritate suadendi magis quam jubendi potestate si displicuit sententia fremitu aspernantur sin placuit frameas of necessity you must here remember our Wapentakes concutiunt Honoratissimum assensûs genus est armis laudare II. Licet apud Concilium accusare quoque discrimen capitis intendere Distinctio poenarum ex delicto proditores transfugas arboribus suspendunt ignavos imbelles corpore Lipsius will have it torpore and shews great reason for it in love towards his own Countrey infames coeno ac palude injecta insuper crate mergunt Diversitas supplicii illuc respicit tanquam scelera ostendi oporteat dum puniuntur flagitia abscondi III. Levioribus delictis pro modo poenarune equorum pecorumque numero convicti multantur Pars mulctae Regi vel civitati pars ipsi qui vindicatur vel propinquis ejus exolvitur IV. Eliguntur in iis Conciliis Princeps qui jura per pagos vicosque reddunt Centeni singulis ex plebe Comites which observe to symbolize with our Hundreds consilium simul authoritas adsunt V. Nihil neque publicae neque privatae rei nisi armati agunt sed arma sumere non ante cuiquam moris quam civitas suffecturum probaverit Tum in ipso Concilio vel principum aliquis vel pater vel propinquus scuto frameäque Juvenem ornant Haec apud illos Toga hic primus here have you resemblance of our Knighting juventae honos ante hoc domus pars videntur mox Reipublicae VI. Insignis nobilitas aut magna patrum merita principis dignationem etiam adolescentulis assignant Note there the propagation of Gentry through true honour deserving vertue to whose memory is dedicated that worship which is oft-times bestowed on unworthy Posterity VII Dotem non uxor marito sed uxori maritus I might compare this to our most ancient and then common Dower al huis d'esglise offert VIII To their religious Rites in Marriage-knots he adjoyns the punishment of her which violates her chosen bed Accisis crinibus nudatam coram propinquis expellit domo maritus ac per omnem vicum verbere agit IX Publicatae pudicitiae understand it of unmarried Wenches nulla venia non formâ non aetate non opibus maritum invenerit X. Sororum filiis idem apud avunculum qui apud patrem honor XI Haeredes successoresque sui cuique liberi nullum testamentum si liberi non sunt proximus gradus in possessione fratres patrui avunculi neither until 32 H. 8. had we any Lands devisable except by special custome binding the Common-law XII Suscipere tam inimicitias seu patris seu propinqui our Northern deadly-feud offers it self here to be thought on quam amicitias necesse est Nec implacabiles durant Luitur enim etiam homicidium certo armentorum ac pecorum numero this interprets the were in the Saxon Laws of William Lambard recipitque satisfactionem universa Domus XIII Suam quisque Servus sedem suos penateis regit Frumenti modum dominus aut pecoris aut vestis ut colono injungit servus hactenus paret Divers others of their Manners and Customes hath the same Author but not any which except these recited I think may be fitly styled Law or constituted Order of that Nation But to be more particular Adam of Breme will tell us out of Einhard of the Saxons which gave chief denomination to such Germans as floated hither thus XIV Quatuor differentiis gens illa consistit Nobilium scilicet liberorum libertorumque atque servorum XV. Legibus firmatum ut nulla pars copulandis conjugiis propriae sortis terminos transferat sed Nobilis nobilem ducat uxorem liber liberam libertus conjungatur libertae servus Ancillae Si vero quispiam horum sibi non congruentem genere praestantiorem duxerit uxorem cum vitae suae damno componat XVI Ejus gentis cum quâ bellandum fuit this is by Tacitus in the same words repeated of the Germans quoquo modo interceptum cum electo popularium suorum patriis quemque armis committunt victoria hujus
the whole Book p. 13 CHAP. X. The Druids reckoning of time An Age consists of thirty Years What Authors treat of the Druids Their Doctrines and Customs savour of Pythagoras and the Cabbalists They were the eldest Philosophers and Lawyers among the Gentiles Some odd Images of theirs in Stone in an Abby near Voitland described p. 15 CHAP. XI The Britans and Gauls had Laws and Customs much alike and whence that came Some things common to them both set down in relation to the breeding of their Children the Marrying of their Wives the Governing of their Families burning Women that killed their Husbands and burning some Servants with the dead Master for company Together with some Remarks of their publick Government p. 16 CHAP. XII Women admitted to publick debates A large commendation of the Sex together with a vindication of their fitness to govern against the Salick Law made out by several examples of most Nations p. 18 CHAP. XIII Their putting themselves under protection by going into great mens service Their Coins of money and their weighing of it Some sorts of flesh not lawful to be eaten by them p. 21 CHAP. XIV Community of Wives among the Britans used formerly by other Nations also Chalcondylas his mistake from our Civil Custom of Saluting A rÄ—buke of the foolish humour of Jealousie p. 22 CHAP. XV. An account of the British State under the Romans Claudius wins a Battel and returns to Rome in Triumph and leaves A. Plautius to order affairs A Colony is sent to Maldon in Essex and to several other places The nature of these Colonies out of Lipsius Julius Agricola's Government here in Vespasian's time p. 24 CHAP. XVI In Commodus his time King Lucy embraces the Christian Religion and desires Eleutherius then Pope to send him the Roman Laws In stead of Heathen Priests he makes three Arch-Bishops and twenty eight Bishops He endows the Churches and makes them Sanctuaries The manner of Government in Constantine's time where ends the Roman account p. 27 CHAP. XVII The Saxons are sent for in by Vortigern against the Scots and Picts who usurping the Government set up the Heptarchy The Angles Jutes Frisons all called Saxons An account of them and their Laws taken out of Adam of Bremen p. 29 CHAP. XVIII The Saxons division of their people into four ranks No person to marry out of his own rank What proportion to be observed in Marriages according to Policy Like to like the old Rule Now Matrimony is made a matter of money p. 30 CHAP. XIX The Saxons way of judging the Event of War with an Enemy Their manner of approving a proposal in Council by clattering their Arms. The Original of Hundred-Courts Their dubbing their Youth into Men. The priviledge of young Lads Nobly born The Morganheb or Wedding-dowry p. 32 CHAP. XX. Their severe punishments of Adultery by maiming some parts of the body The reason of it given by Bracton The like practised by Danes and Normans p. 33 CHAP. XXI The manner of Inheriting among them Of deadly Feuds Of Wergild or Head-money for Murder The Nature of Country-Tenures and Knights Fees p. 36 CHAP. XXII Since the return of Christianity into the Island King Ethelbert's Law against Sacriledge Thieves formerly amerced in Cattel A blot upon Theodred the Good Bishop of London for hanging Thieves The Country called Engelond by Order of King Egbert and why so called The Laws of King Ina Alfred Ethelred c. are still to be met with in Saxon. Those of Edward the Confessor and King Knute the Dane were put forth by Mr. Lambard in his Archaeonomia p. 37 CHAP. XXIII King Alfred divides England into Counties or Shires and into Hundreds and Tythings The Original of Decenna or Court-leet Friburg and Mainpast Forms of Law how People were to answer for those whom they had in Borgh or Mainpast p. 39 CHAP. XXIV King Alfred first appointed Sheriffs By Duns Scotus his advice he gave Order for the breeding up of Youth in Learning By the way what a Hide of Land is King Edgar's Law for Drinking Prelates investiture by the Kings Ring and Staff King Knute's Law against any English-man that should kill a Dane Hence Englescyre The manner of Subscribing and Sealing till Edward the Confessor's time King Harold's Law that no Welch-man should come on this side Offa's Dike with a weapon p. 41 CHAP. XXV The Royal Consorts great Priviledge of Granting Felons Estates forfeited to the King Estates granted by the King with three Exceptions of Expedition Bridge and Castle The Ceremony of the Kings presenting a Turf at the Altar of that Church to which he gave Land Such a Grant of King Ethelbald comprized in old Verse p. 43 THE CONTETNS BOOK II. CHAP. I. WIlliam the Conquerour's Title He bestows Lands upon his followers and brings Bishops and Abbots under Military service An account of the old English Laws called Merchenlage Danelage and Westsaxen-lage He is prevailed upon by the Barons to govern according to King Edward's Laws and at S. Albans takes his Oath so to do Yet some new Laws were added to those old ones p. 47 CHAP. II. The whole Country inrolled in Dooms-day Book Why that Book so called Robert of Glocester's Verses to prove it The Original of Charters and Seals from the Normans practised of old among the French Who among the Romans had the priviledge of using Rings to seal with and who not p. 51 CHAP. III. Other wayes of granting and conveying Estates by a Sword c. particularly by a Horn. Godwin's trick to get Boseham of the Arch-Bishop of Canterbury Pleadings in French The French Language and Hand when came in fashion Coverfeu Laws against taking of Deer against Murder against Rape p. 54 CHAP. IV. Sheriffs and Juries were before this time The four Terms Judges to act without appeal Justices of Peace The Kings payments made at first in Provisions Afterwards changed into Mony which the Sheriff of each County was to pay in to the Exchequer The Constable of Dover and Warder of the Cinque Ports why made A disorder in Church-affairs Reformed p. 56 CHAP. V. William Rufus succeeds Annats now paid to the King Why claimed by the Pope No one to go out of the Land without leave Hunting of Deer made Felony p. 59 CHAP. VI. Henry the First why called Beauclerk His Letters of Repeal An Order for the Relief of Lands What a Hereot was Of the Marriage of the Kings Homagers Daughter c. Of an Orphans Marriage Of the Widows Dowry Of other Homagers the like Coynage-money remitted Of the disposal of Estates The Goods of those that dye Intestate now and long since in the Churches Jurisdiction as also the business of Wills Of Forfeitures Of Misdemeanors Of Forests Of the Fee de Hauberk King Edward's Law restored p. 60 CHAP. VII His order for the restraint of his Courtiers What the punishment of Theft Coyners to lose their Hands and Privy members Guelding a kind of death What Half-pence and
Farthings to pass The right measure of the Eln. The Kings price set for provisions p. 63 CHAP. VIII The Regality claim'd by the Pope but within a while resumed by the King The Coverfeu dispensed with A Subsidy for marrying the Kings daughter The Courtesie of England Concerning Shipwrack A Tax levied to raise and carry on a War p. 65 CHAP. IX In King Stephen's Reign all was to pieces Abundance of Castles built Of the priviledge of Coining Appeals to the Court of Rome now set on foot The Roman Laws brought in but disowned An instance in the Wonder-working Parliament p. 67 CHAP. X. In King Henry the Seconds time the Castles demolished A Parliament held at Clarendon Of the Advowson and Presentation of Churches Estates not to be given to Monasteries without the Kings leave Clergymen to answer in the Kings Court A Clergyman convict out of the Churches Protection None to go out of the Realm without the Kings leave This Repealed by King John Excommunicate Persons to find Surety Laymen how to be impleaded in the Ecclesiastical Court A Lay-Jury to swear there in what case No Homager or Officer of the Kings to be Excommunicated till He or his Justice be acquainted p. 69 CHAP. XI Other Laws of Church affairs Concerning Appeals A Suit betwixt a Clergy-man and a Lay-man where to be tryed In what case one who relates to the King may be put under an Interdict The difference betwixt that and Excommunication Bishops to be present at the Tryals of Criminals until Sentence of Death c. pass Profits of vacant Bishopricks c. belong to the King The next Bishop to be chosen in the Kings Chappel and to do Homage before Consecration Deforcements to the Bishop to be righted by the King And on the contrary Chattels forfeit to the King not to be detained by the Church Pleas of debts whatsoever in the Kings Court Yeomens Sons not to go into Orders without the Lords leave p. 72 CHAP. XII The Statutes of Clarendon mis-reported in Matthew Paris amended in Quadrilegus These Laws occasioned a Quarrel between the King and Thomas a Becket Witness Robert of Glocester whom he calls Yumen The same as Rusticks i. e. Villains Why a Bishop of Dublin called Scorch-Uillein Villanage before the Normans time p. 74 CHAP. XIII The Poet gives account which of those Laws were granted by Thomas a Becket which withstood Leudemen signifies Lay-men and more generally all illiterate Persons p. 77 CHAP. XIV The Pope absolves Thomas a Becket from his Oath and damns the Laws of Clarendon The King resents it writes to his Sheriffs Orders a Seisure Penalties inflicted on Kindred He provides against an Interdict from Rome He summons the Bishops of London and Norwich An account of Peter Pence p. 79 CHAP. XV. A Parliament at Northampton Six Circuits ordered A List of the then Justices The Jury to be of twelve Knights Several sorts of Knights In what cases Honorary Knights to serve in Juries Those who come to Parliament by right of Peerage sit as Barons Those who come by Letters of Summons are styled Chevaliers p. 81 CHAP. XVI The person convict by Ordeal to quit the Realm within Forty dayes Why Forty dayes allowed An account of the Ordeals by Fire and Water Lady Emme clear'd by going over burning Coulters Two sorts of tryal by Water Learned conjectures at the rise and reason of these customs These Ordeals as also that of single Combat condemned by the Church p. 84 CHAP. XVII Other Laws Of entertaining of strangers An Uncuth a Gust a Hogenhine what of him who confesseth the Murder c. Of Frank pledge Of an Heir under age Of a Widows Dowry Of taking the Kings fealty Of setting a time to do homage Of the Justices duty Of their demolishing of Castles Of Felons to be put into the Sheriffs hands Of those who have departed the Realm p. 87 CHAP. XVIII Some Laws in favour of the Clergy Of forfeitures on the account of Forest or hunting Of Knights fees Who to bear Arms and what Arms. Arms not to be alienated No Jew to bear Arms. Arms not to be carryed out of England Rich men under suspicion to clear themselves by Oath Who allowed to swear against a Free-man Timber for building of Ships not to be carryed out of England None but Free-men to bear Arms. Free-men who Rusticks or Villains not such p. 90 CHAP. XIX Of Law-makers Our Kings not Monarchs at first Several of them in the same County The Druids meeting-place where Under the Saxons Laws made in a general Assembly of the States Several instances This Assembly under the Normans called Parliament The thing taken from a custome of the ancient Germans Who had right to sit in Parliament The harmony of the Three Estates p. 93 CHAP. XX. The Guardians of the Laws who In the Saxons time seven Chief One of the Kings among the Heptarchs styled Monarch of all England The Office of Lord High Constable Of Lord Chancellor ancient The Lord Treasurer Alderman of England what Why one called Healfkoning Aldermen of Provinces and Graves the same as Counts or Earls and Viscounts or Sheriffs Of the County Court and the Court of Inquests called Tourn le Viscount When this Court kept and the original of it p. 95 CHAP. XXI Of the Norman Earls Their Fee Their power of making Laws Of the Barons i.e. Lords of Manours Of the Court-Baron It s rise An instance of it out of Hoveden Other Offices much alike with the Saxons p. 98 THE FIRST BOOK OF THE ENGLISH JANUS From the Beginning of the BRITISH Story down to the NORMAN Conquest CHAP. I. The counterfeit Berosus with the Monk that put him forth both censured The Story of Samothes the first Celtick King The bounds of Celtica From Samothes say they the Britans and Gauls were called Samothei For which Diogenes Laertius is falsly quoted the word in him being Semnothei THERE came forth and in Buskins too I mean with Pomp and State some parcels of years ago and is still handed about every where an Author called Berosus a Chaldee Priest take heed how you suffer your self to believe him to be the same that Flavius Josephus so often up and down quotes for a witness with a Commentary of Viterbiensis Or rather to say that which is the very truth John Annius of Viterbium a City of Tuscany a Dominican Frier playing the Leger-de-main having counterfeited Berosas to put off his own strange stories hath put a cheat upon the Lady Muse who is the Governess of Antiquities and has hung a Bantling at her back After the Genealogies of the Hebrews drawn down by that Author whoever he be according to his own humour and method for fear he should not be thought to take in the Kingdoms and Kings of the whole Universe and the Etymologies of Proper Names by whole-sale as we say as if he had been born the next day after Grandam Ops was delivered of Jupiter he subjoyns SAMOTHES the very same who
people Nor do they hold on never to be appeased For even Murder is expiated by a certain number of some head of Cattel and the whole Family of the murdered Person receives satisfaction Murders formerly were bought off with Head-mony called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 though one had killed a Nobleman nay the King himself as we may see in Athelstan's Constitutions But good manners I suppose have prevailed above Laws 33. The Lord imposes upon his Tenant a certain quantity of Corn or Cattel or Clothes We see here clearly enough the nature of Country Land-holders Fees or Tenures As to military or Knights Fees give me leave to set that down too Dionysius Halicarnasseus gives us a very ancient draught and model of them in the Trojans and Aborigines Florus in the Cymbrians and Lampridius in Alexander Severus Both the Northern people and the Italians do owe them to the Huns and Lombards but these later according to a more modern form Let these things suffice out of Cornelius Tacitus which belong to this Head CHAP. XXII Since the return of Christianity into the Island King Ethelbert's Law against Sacriledge Thieves formerly amerced in Cattel A blot upon Theodred the Good Bishop of London for hanging Thieves The Country called Engelond by Order of King Egbert and why so called The Laws of King Ina Alfred Ethelred c. are still to be met with in Saxon. Those of Edward the Confessor and King Knute the Dane were put forth by Mr. Lambard in his Archaeonomia BEfore that the Christian Doctrine had driven out and banished the Saxon Idolatry all these things I have hitherto been speaking of were in use Ethelbert he that was the first King not only of Kent but of all England except Northumberland having been baptized by Austin the Monk the Apostle as some call him of the English amongst other good things which by Counsel and Grant he did to his Nation 't is venerable Bede speaks these words he did also with the advice of wise men appoint for his peoples use the orders of their proceedings at Law according to the examples of the Romans Which having been written in the English tongue says he are hitherto or to this time kept and observed by them Among which orders or decrees he set down in the first place after what manner such an one should make amends who should convey away by stealth any of those things that belonged to the Church or to a Bishop or to the rest of the Orders In the Laws of some that came after him as those of King Alured who cull'd out of Ethelbert's Acts to make up his own and those of King Athelstan Thieves make satisfaction with mony accordingly as Tacitus says of the Germans That for lighter offences those that were convicted are at the rate of their penalties amerced such a number of Horses or other Cattel For as Festus hath it before Brass and Silver were coyned by ancient custom they were fined for their faults so much Cattel But those who medled with any thing sacred we read had that hand cut off with which they committed the theft Well! but am I mistaken or was Sacriledge even in the time of the Saxon Government punisht as a Capital crime There is a passage of William of Malmsbury in his Book de Gestis Pontificum that inclines me to think so Speaking of Theodred the Bishop of London when Athelstan was King he says That he had among the common people got the sirname of Theodred the Good for the eminence of his virtues Only in one thing he fell short which was rather a mistake than a crime that those Thieves which were taken at St. Edmunds whom the holy Martyr had upon their vain attempts tied with an invisible knot he means St. Edmundsbury in Suffolk which Church these Fellows having a design to rob are said by miracle to have stood still in the place as if they had been tied with Cords These Thieves I say were by his means or sufferance given up to the severity of the Laws and condemned to the Gallows or Gibbet Let not any one think that in this middle Age this Gallows or Gibbet I spoke of was any other thing than the Roman Furca upon which people hang and are strangled till they die 34. Egbert King of the West-Saxons I make use of Camdens words having gotten in four Kingdoms by conquest and devour'd the other two also in hope that what had come under the Government of one might likewise go under one name and that he might keep up the memory of his own people the Angles he gave order by Proclamation that the Heptarchy which the Saxons had possest should be called Engelond John Carnotensis writes that it was so called from the first coming in of the Angles and another some body says it was so named from Hengist a Saxon Prince There are a great many Laws of King Ina Alfred Edward Athelstan Edmund Edgar Ethelred and Knute the Dane written in the Saxon language which have lasted till these very times For King Knute gave order 't is William of Malmsbury speaks that all the Laws which had been made by former Kings and especially by his Predecessor Ethelred should under pain of his displeasure and a Fine be constantly observed For the keeping of which even now in the time of those who are called the Good people swear in the name of King Edward not that he appointed them but that he observed them The Laws of Edward who for his piety has the sirname of Confessor are in Readers hands These of the Confessor were in Latin those others of Knute were not long since put into Latin by William Lambard a learned man and one very well vers'd in Antiquity who has recovered them both and published the Saxon Original with his Translation over against it Printed by John Day at London Anno 1567. under the Title of Archaeonomia or a Book concerning the ancient Laws of the English May he have a good harvest of it as he deserves From Historians let us borrow some other helps for this service CHAP. XXIII King Alfred divides England into Countyes or Shires and into Hundreds and Tythings The Original of Decenna or Court-leet Friburg and Mainpast Forms of Law how People were to answer for those whom they had in Borgh or Mainpast 35. INgulph the Abbot of Crowland writing of King Alfred says That he was the first of all that changed the Villages or Lordships and Provinces of all England into Counties or Shires Before that it was reckoned and divided according to the number of Hides or Plough-lands by little districts or quarters He divided the Counties into Hundreds and Tythings it was long before that Honorius Arch-Bishop of Canterbury had parted the Country into Parishes to wit Anno 636. that every Native home-born lawful man might be in some Hundred and Tything I mean whosoever was â—ull twelve years of age and if any
to have it so understood 38. King Edgar like a King of good Fellows or Master of Revels made a Law for Drinking He gave order that studs or knobs of Silver or Gold so Malmsbury tells us should be fastned to the sides of their Cups or drinking Vessels that when every one knew his mark or boundary he should out of modesty not either himself covet or force another to desire more than his stint This is the only Law before the first Parliament under King James has been made against those Swill-bowls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Swabbers of drunken Feasts and lusty Rowers In full brimm'd Rummers that do ply their Oars who by their carowses tipling up Nestor's years as if they were celebrating the Goddess Anna Perenna do at the same time drink others Healths and mischief and spoil their own and the Publick 39. There was no choice of Prelates these are the words of Ingulph again that was merely free and canonical but the Court conferred all Dignities as well of Bishops as of Abbots by the Kings Ring and Staff according to his good pleasure The Election or choice was in the Clergy and the Monks but they desired him whom they had chosen of the King Edmund in King Ethelred's time was after this manner made Bishop of the Holy Island on the Coast of Northumberland And King Edgar in his Patent which he signed to the Abby of Glastenbury retained to himself and his Heirs the power of bestowing the Pastoral Staff to the Brother Elect. 40. To as many as King Knute retained with him in England to wit to the Danes for by their hands also was the Scepter of this Kingdom managed it was granted that they should have a firm peace all over so that if any of the English killed any of those men whom the King had brought along with him if he could not clear himself by the Judgment of God that is by Ordeal to wit by water and burning hot iron Justice should be done upon him But if he run away and could not be taken there should be paid for him sixty six marks and they were gathered in the Village where the Party was slain and therefore because they had not the murderer forth coming and if in such Village by reason of their poverty they could not be gathered then they should be gathered in the Hundred to be paid into the Kings Treasure In this manner writes Henry Bracton who observes that hence the business of Englishshire came into fashion in the Inquests of murder 41. Hand-Writings i.e. Patents and Grants till Edward the Confessors time were confirmed by the subscriptions of faithful Persons present a thing practised too among the Britans in King Arthur's time as John Price informs us out of a very ancient Book of the Church of Landaff Those subscriptions were accompanied with Golden Crosses and other sacred Seals or like stamps 42. King Harald made a Law that whosoever of the Welch should be found with a Weapon about him without the bound which he had set them to wit Offa's dike he should have his Right Hand cut off by the Kings Officers This dike our Chorographer tells us was cut by Offa King of the Mercians and drawn along from the mouth of the River Dee to the mouth of the River Wye for about eighty miles in length on purpose to keep the English and Welch asunder CHAP. XXV The Royal Consorts great Priviledge of Granting Felons Estates forfeited to the King Estates granted by the King with three Exceptions of Expedition Bridge and Castle The Ceremony of the Kings presenting a Turf at the Altar of that Church to which he gave Land Such a Grant of King Ethelbald comprized in old Verse THe Donations or Grants of the Royal Consort though not by the Kings Authority contrary to what the Priviledge of any other Wife is were ratified also in that Age as they were by the Roman Law Which by the Patent of Aethelswith Wife to Burghred King of the Mercians granted to Cuthwuls in the year 868. hath been long since made out by Sir Edward Coke Lord Chief Justice of the Common Pleas Where also King Ethelred's ancient Charter proves that the Estates of Felons those I mean who concern themselves in Burglaries and Robberies are forfeited to the King Having already mentioned those Hand-writings or Grants which are from one hand and t'other conveyances of Tenure the fewel of quarrels I have a mind over and above what has been said to set down also these Remarks as being to our purpose and taken from the Saxons As for instance that those are most frequent whereby Estates are conveyed to be held with the best and fairest right yet most commonly these three things excepted to wit Expedition Repairing of Bridges and Building of Castles And that those to whom the Grants were made were very seldom acquitted upon this account These three exceptions are noted by the term of a three-knotted necessity in an old Charter wherein King Cedwalla granted to Wilfrid the first Bishop of Shelsey in Sussex the Village of Paganham in the said County For though in the Grants of King Ethelulph the Church be free says Ingulph and there be a concession of all things for the release of our Souls and pardon of our sins to serve God alone without Expedition and building of Bridge and fortifying of Castle to the intent that the Clergy might wholly attend Divine Service Yet in that publick debate of Parliament in the Reign of Henry the third concerning the ancient State Freedom and Government of the English Church and concerning the hourly exactions of the Pope and the Leeches Jugglers and Decoys of Rome that strolled up and down the Country to pick Peoples Pockets to the great prejudice of the Common-wealth they did indeed stand for the priviledge of the Church and produced as Witnesses thereof the Instruments and Grants of Kings who nevertheless were not so much inclined to countenance that liberty of the Church but that as Matthew Paris observes They always reserved to themselves for the publick advantage of the Kingdom three things to wit Expedition and the repairing or making up of Bridge or Castle that by them they might withstand the incursions of the Enemy And King Ethelbald hath this form I grant that all the Monasteries and Churches of my Kingdom be discharged from publick Customs or Taxes Works or Services and Burdens or Payments or Attendances unless it be the building and repairing of Castles or Bridges which cannot be released to any one I take no notice how King Ethelred the twelfth perhaps but by no means the fifteenth wherein an Historian of ours has blundred hath signed the third year of his Reign by the term of an Olympiad after the manner of the Greek computation or reckoning As likewise I pass other things of the like kind which are many times used and practised according to the
he would hearken to them and grant that they might continue under their own Countrey Laws Whereupon calling a Council he did at the last yield to the request of the Barons From that day forward therefore the Laws of King Edward which had before been made and appointed by his Grand-father Adgar seeing their authority were before the rest of the Laws of the Countrey respected confirmed and observed all over England But what then Doth it follow that all things in William's time were new How can a man chuse but believe it The Abbot of Crowland sayes this of it I have brought with me from London into my Monastery the Laws of the most Righteous King Edward which my Renowned Lord King William hath by Proclamation ordered under most grievous penalties to be authentick and perpetual to be kept inviolably throughout the whole Kingdom of England and hath recommended them to his Justices in the same language wherein they were at first set forth and published And in the Life of Fretherick Abbot of S. Albans you have this account After many debates Arch-Bishop Lanfrank being then present at Berkhamstead in Hartfordshire the King did for the good of peace take his Oath upon all the Reliques of the Church of S. Alban and by touching the holy Gospels Fretherick the Abbot administring the Oath that he would inviolably observe the good and approved ancient Laws of the Kingdom which the holy and pious Kings of England his Predecessors and especially King Edward had appointed But you will much more wonder at that passage of William le Rouille of Alençon in his Preface to the Norman Customs That vulgar Chronicle saith he which is intitled the Chronicle of Chronicles bears witness that S. Edward King of England was the Maker or Founder of this Custom where he speaks of William the Bastard Duke of Normandy alias King of England saying that whereas the foresaid S. Edward had no Heirs of his own Body he made William Heir of the Kingdom who after the Defeat and Death of Harald the Usurper of the Kingdom did freely obtain and enjoy the Kingdom upon this condition to wit that he would keep the Laws which had before been made by the fore-mentioned Edward which Edward truly had also given Laws to the Normans as having been a long time also brought up himself in Normandy Where then I pray you is the making of new Laws Why without doubt according to Tilbury we are to think that together with the ratifying of old Laws there was mingled the making of some new ones and in this case one may say truly with the Poet in his Panegyrick Firmatur senium Juris priscamque resumunt Canitiem leges emendanturque vetustae Acceduntque novae which in English speaks to this sense The Laws old age stands firm by Royal care Statutes resume their ancient gray hair Old ones are mended with a fresh repair And for supply some new ones added are See here we impart unto thee Reader these new Laws with other things which thou maist justly look for at my hands in this place CHAP. II. The whole Country inrolled in Dooms-day Book Why that Book so called Robert of Glocester's Verses to prove it The Original of Charters and Seals from the Normans practised of old among the French Who among the Romans had the priviledge of using Rings to seal with and who not 1. HE caused all England to be described and inrolled a whole company of Monks are of equal authority in this business but we make use of Florentius of Worcester for our witness at this time how much Land every one of his Barons was possessed of how many Soldiers in fee how many Ploughs how many Villains how many living Creatures or Cattel I and how much ready mony every one was Master of throughout all his Kingdom from the greatest to the least and how much Revenue or Rent every Possession or Estate was able to yield That breviary or Present State of the Kingdom being lodged in the Archives for the generality of it containing intirely all the Tenements or Tenures of the whole Country or Land was called Dooms-day as if one would say The day of Doom or Judgment For this reason saith he of Tilbury we call the same Dooms-day Book Not that there is in it sentence given concerning any doubtful cases proposed but because it is not lawful upon any account to depart from the Doom or Judgment aforesaid Reader If it will not make thy nice Stomach wamble let me bring in here an old fashioned Rhyme which will hardly go down with our dainty finical Verse-wrights of an historical Poet Robert of Glocester One whom for his Antiquity I must not slight concerning this Book The K. W. vor to wite the worth of his londe Let enqueri streitliche thoru al Engelonde Hou moni plou lond and hou moni hiden also Were in everich sire and wat hii were wurth yereto And the rents of each toun and of the waters echone That wurth and of woods eke that there ne bileved none But that he wist wat hii were wurth of al Engelonde And wite al clene that wurth thereof ich understond And let it write clene inou and that scrit dude iwis In the Tresorie at Westminster there it yut is So that vre Kings suth when hii ransome toke And redy wat folc might give hii fond there in yor boke Considering how the English Language is every day more and more refined this is but a rude piece and looks scurvily enough But yet let us not be unmindful neither that even the fine trim artifices of our quaint Masters of Expression will themselves perhaps one day in future Ages that shall be more critical run the same risk of censure and undergo the like misfortune And that Multa renascentur quae nunc cecidere cadentque Quae nunc sunt in honore As Horace the Poet born at Venusium tells us That is Several words which now are fal'n full low Shall up again to place of Honour start And words that now in great esteem I trow Are held shall shortly with their honour part 2. The Normans called their Writings given under their hand Charters I speak this out of Ingulph and they ordered the confirmation of such Charters with an impression of Wax by every ones particular Seal under the Testimony and Subscription of three or four Witnesses standing by But Edward the Confessor had also his Seal though that too from Normandy For in his time as the same Writer saith Many of the English began to let slip and lay aside the English Fashions bringing in those of the Normans in their stead and in many things to follow the customs of the Franks all great persons to speak the French Tongue in their Courts looking upon it as a great piece of gentility to make their Charters and Writings alamode of France and to be ashamed of their own Country usages in these
came in his way as he was passing by holding up their Ploughshares in token that their Husbandry was running to decay for they were put to a world of trouble upon occasion of the provisions which they carried from their own quarters through several parts of the Kingdom Thereupon the King being moved with their complaints did by the resolved advice of his Lords appoint throughout the Kingdom such persons as he knew were for their prudence and discretion fit for the service These persons going about and that they might believe their own eyes taking a view of the several Lands having made an estimate of the provisions which were paid out of them they reduced it into a sum of pence But for the total sum which arose out of all the Lands in one County they ordered that the Sheriff of that County should be bound to the Exchequer Adding this withal that he should pay it at the Scale Now the manner of paying the tryal of the weight and of the metal by Chymical operation the Melter or Coyner and the surveyor of the Mint are more largely handled and explained by my self in some other work of mine 13. That he might the more firmly retain Kent to himself that being accounted as it were the Key of England 't is the famous Mr. Camden tells the Story he set a Constable over Dover-Castle and made the same person Warden of the Cinque Ports according to the old usage of the Romans Those are Hastings Dover Hith Rumney and Sandwich to which are joyned Winchelsey and Rye as Principals and other little Towns as Members 14. To put the last hand to William I add out of the Archives this Law not to be accounted among the last or least of his William by the Grace of God King of the English to all Counts or Earls Viscounts or Sheriffs and to all French born and English men who have Lands in the Bishoprick of Remigius greeting This Remigius was the first who translated the Episcopal See from Dorchester to Lincoln Be it known unto you all and the rest of my Liege Subjects who abide in England that I by the common advice of my Arch-Bishops and the rest of the Bishops and Abbots and all the Princes of my Kingdom have thought fit to order the amendment of the Episcopal Laws which have been down to my time in the Kingdom of the Angles not well nor according to the Precepts of the holy Canons ordained or administred Wherefore I do command and by my Royal Authority strictly charge that no Bishop or Arch-deacon do henceforth hold Pleas in the Hundred concerning Episcopal Laws nor bring any cause which belongs to the Government of Souls i.e. to spiritual affairs to the judgment of secular men but that whosoever according to the Episcopal Laws shall for what cause or fault soever be summoned shall come to a place which the Bishop shall chuse and name for this purpose and there make answer concerning his cause and do right to God and his Bishop not according to the Hundred but according to the Canons and Episcopal Laws For in the time of the Saxon Empire there were wont to be present at those Country Meetings the Hundred Courts an Alderman and a Bishop the one for Spirituals the other for Temporals as appears by King Edgar's Laws CHAP. V. William Rufus succeeds Annats now paid to the King Why claimed by the Pope No one to go out of the Land without leave Hunting of Deer made Felony AFter the death of William his second Son WILLIAM sirnamed RVFVS succeeded in his room All Justice of Laws as Florentius of Worcester tells us was now husht in silence and Causes being put under a Vacation without hearing money alone bore sway among the great ones Ipsaque majestas auro corrupta jacebat that is And Majesty it self being brib'd with gold Lay as a prostitute expos'd to th' bold 15. The right or duty of First-Fruits or as they are commonly called the Annats which our Kings claimed from vacant Abbies and Bishopricks Polydor Virgil will have to have had its first original from Rufus Now the Popes of Rome laid claim to them anciently a sort of Tribute which upon what right it was grounded the Council of Basil will inform us and by what opinion and resolution of Divines and Lawyers confirmed Francis Duarenus in his Sacred Offices of the Church will instruct us 'T is certain that Chronologers make mention that at his death the Bishopricks of Canterbury Winchester and Salisbury and twelve Monasteries beside being without Prelates and Abbots paid in their Revenues to the Exchequer 16. He forbad by publick Edict or Proclamation sayes the same Author that any one should go out of England without his leave and Passport We read that he forbad Anselm the Arch-Bishop that he should not go to wait upon Pope Vrban but that he comprehended all Subjects whatsoever in this his Royal order I confess I have not met with any where in my reading but in Polydor. 17. He did so severely forbid hunting of Deer saith William of Malmesbury that it was Felony and a hanging matter to have taken a Stag or Buck. CHAP. VI. Henry the First why called Beauclerk His Letters of Repeal An Order for the Relief of Lands What a Hereot was Of the Marriage of the Kings Homagers Daughter c. Of an Orphans Marriage Of the Widows Dowry Of other Homagers the like Coynage-money remitted Of the disposal of Estates The Goods of those that dye Intestate now and long since in the Churches Jurisdiction as also the business of Wills Of Forfeitures Of Misdemeanors Of Forests Of the Fee de Hauberk King Edward's Law restored WIlliam who had by direful Fates been shewn to the World was followed by his Brother Henry who for his singular Learning which was to him instead of a Royal Name was called Beau-clerk He took care of the Common-wealth by amending and making good what had slipt far aside from the bounds of Justice and by softning with wholsome remedies those new unheard of and most grievous injuries which Ralph afterwards Bishop of Durham being Lord Chief Justice of the whole Kingdom plagued the people with He sends Letters of Repeal to the High Sheriffs to the intent that the Citizens and people might enjoy their liberty and free rights again See here a Copy of them as they are set down in Matthew Paris HENRY by the Grace of God King of England to Hugh of Bockland High Sheriff and to all his Liege people as well French as English in Herefordshire Greeting Know ye that I through the mercy of God and by the common advice of the Barons of the Kingdom of England have been crowned King And because the Kingdom was opprest with unjust exactions I out of regard to God and that love which I bear towards you all do make the holy Church of God free so that I will neither sell it nor will I put it to farm
wherewith my Father amended it Those amendments are put forth by Lombard Hitherto out of those Royal and general Letters directed to all the Subjects CHAP. VII His order for restraint of his Courtiers What the punishment of Theft Coyners to lose their Hands and Privy-members Guelding a kind of death What Half-pence and Farthings to pass The right measure of the Eln. The Kings price set for provisions 30. HE did by his Edict or Proclamation restrain the Rapines Thefts and Rogueries of the Courtiers ordering that those who were caught in such pranks should have their Eyes with their Stones pulled out This Malmesbury supplies us with But Florentius of Worcester and Roger Hoveden give the account that he punished Thieves with Death and Hanging otherwise than that pleasant and curious man Thomas Moor in his Vtopia would have his people to be dealt with Yet I am inclined rather to believe Malmesbury not only upon the authority of the man in comparison of whose Rose-beds if you well weigh the Learning of that Age the other pack of Writers are but sorry low shrubs but also upon the account of a nameless Monk who in his Book of the Miracles of S. Thomas of Canterbury tells us a story of one Eilward a poor mean fellow of Kingsweston in Berkshire who being in the Reign of King Henry the Second condemned of Theft he had it seems stoln a pair of Countrey Gloves and a Whetstone was punished by losing his Eyes and Privities who coming with devotion to S. Thomas his Tomb got an intire restitution of his disappearing Members and Faculties and was as good a man as ever he was Perchance in this he is no witness of infallible credit Let the story of Iphis and Ianthis and that of Ceneus try Masteries with this for the Whetstone to our purpose the Writer is trusty enough But in the first times of the Normans I perceive that the Halter was the ill consequence of Theft Let it be lawful for the Abbot of that Church if he chance to come in in the God speed to acquit an High-way-man or Thief from the Gallows They are the words of the Patent with which William the Conquerour to expiate the slaughter of Harald consecrated a Monastery to S. Martin near Hastings on the Sea-coast of Sussex and priviledged it with choice and singular rights 31. Against Cheats whom they commonly call Coyners 't is Malmesbury speaks again he shewed his particular diligence permitting no cheating fellow to escape scot-free without losing his Fist or Hand who had been understood to have put tricks upon silly people with the traffick of their falshood For all that he who hath tackt a supplement to Florentius of Worcester and William Gemeticensis give out that the Counterfeiters and Imbasers of Coin had over and above those parts cut off which Galen accounts to be the principal instruments for propagating of the kind To whom Hoveden agrees who writes in the Life of Henry the First That Coyners by the Kings order being taken had their right Hâ—nds and their Privy-members cut off Upon this account sure that he that was guilty of such a wicked crime should have no hope left him of posterity nor the Common-wealth be in any further fear of those who draw villainous principles from the loins of those that beget them Now at this very time and in former Ages too this piece of Treason was punished with Halter and Gallows and that also of Theft not only in England but almost in all Countreys especially Robbery upon the High-way which is committed by those who lay wait to surprize Passengers as they travel along upon one or other side of them whence not only in the Latin but in the holy Language also a High-way-man hath his name And truly among the Ancients guelding was lookt upon as a kind of death The Apostles Canons give him the character and censure of a Manslayer who cuts off his own Privities who lives all his life a Batchelor say the Talmudists and he who cuts off another mans is in danger of the Cornelian Law concerning Murderers and Cut-throats and so was it heretofore among the English 32. He ordered they are Hoveden's words that no half-penny which also he commanded should be made round or farthing also if it were intire should be refused 33. He corrected the Merchants false Eln so sayes the Monk of Malmesbury applying the measure of his Arm and proposing that to all people over England 34. He gave order to the Courtiers in whatsoever Cities or Villages he were how much they were to take of the Countrey people gratis and at what price to buy things punishing offendors herein either with a great Fine of money or with loss of life CHAP. VIII The Regality claimed by the Pope but within a while resumed by the King The Coverfeu dispensed with A Subsidy for marrying the Kings Daughter The Courtesie of England Concerning Shipwrack A Tax levied to raise and carry on a War 35. ANselm Arch-Bishop of Canterbury labours earnestly with the Pope and his party and at length obtains it with much ado that from that time forward you have it in Florilegus after other Writers never any one should be invested with a Pastoral Staff or a Ring into a Bishoprick or Abbacy by the King or any Lay-person whatsoever in England added out of Malmesbury retaining however the priviledge of Election and Regality There was a sharp bickering about this business betwixt the King and Anselm and so between the Popes Paschalis and Calixtus and Henry about that time Emperour Both of them at least pretendedly quit their right our King humouring the Scene according to the present occasion For after Anselm's death he did invest Rodulphus that came in his room by a Ring and a Pastoral Staff 36. He restored the Night-Torches or Lights which William the First had forbidden forasmuch as he now had less reason to apprehend any danger from them the Kingdom being in a better and firmer posture 37. To make up a portion for Mawd the Kings Daughter married to Henry the Emperour every Hide of Land paid a Tribute of Three Shillings Here Polydore makes his descant Afterward sayes he The rest of the Kings followed that course of raising Portions for the bestowal of their Daughters so tenacious hath posterity alway been of their own advantages It is scarce to be doubted that the right of raising money for the marrying of the Lords Daughters by way of Aid or Subsidy upon the Tenants or Dependants is of a more ancient original Neither would I fetch it from the mutual engagement of Romulus his Patrons and Clients or Landlords and Tenants or from Suetonius his Caligula rather from the old Customs of the Normans more ancient than King Henry where that threefold Tribute is explained by the name of Aid which the Patent granted by King John in favour of publick liberty mentions in these words I will impose no Escuage or
Aid in our Realm but by the common advice of our Realm unless it be to ransom our Body and to make our first-born Son a Soldier or Knight and to marry our eldest Daughter once 38. Some ascribe that Law to Henry which Lawyers call the Courtesie of England whereby a man having had a Child by his Wife when she dyes enjoyes her Estate for his life 39. He made a Law that poor shipwrackt persons should have their Goods restored to them if there were any living creature on Ship-board that escaped drowning Forasmuch as before that time whatsoever through the misfortune of shipwrack was cast on Shoar was adjudged to the Exchequer except that the persons who suffered shipwrack and had escaped alive did themselves within such a time refit and repair the Vessel So the Chronicle of the Monastery of S. Martin de Bello This right is called Wreck or if you will Uareck of the Sea How agreeable to the Law of Nations I trouble not my self to enquire That more ancient Custom is as it were suitable to the Norman usage Now at this time our Lawyers and that the more modern Law of Edward the First pass judgement according to the more correct Copy of King Henry And they reckon it too among the most ancient Customs of the Kingdom Did therefore King Richard order or did Hoveden relate this to no purpose or without any need If one who suffers shipwrack dye in the Ship let his Sons or Daughters his Brethren or Sisters have what he left according as they can shew and make out that they are his next heirs Or if the deceased have neither Sons nor Daughters nor Brothers nor Sisters the King is to have his Chattels Can one imagine that this Law he made at Messina when he was engaged in War was calculated only for that time or place Certainly in the Archives there is elsewhere to be met with as much as this 40. That he might with a stout Army bear the brunt of Baldwin Earl of Flanders and Louis King of France who had conspired being bound by mutual Oaths to one another with the Duke of Anjou to take away from King Henry by force of Arms the Dutchy of Normandy he first of all t is Polydore avers it laid a heavy Tax upon the people to carry on the new War which thing with the Kings that followed after grew to be a custom He was the last of the Normans of a Male descent and as to the method of our undertaking here we treat of him last CHAP. IX In King Stephen's Reign all was to pieces Abundance of Castles built Of the priviledge of Coining Appeals to the Court of Rome now set on foot The Roman Laws brought in but disowned An instance in the Wonder-working Parliament AS of old unless the Shields were laid up there was no Dancing at Weddings so except Arms be put aside there is no pleading of Laws That Antipathy betwixt Arms and Laws England was all over sensible of if ever at any time in the Reign of K. STEPHEN Count of Blois King Henry's Nephew by his Sister Adela For he did not only break the Law and his Oath too to get a Kingdom but also being saluted King by those who perfidiously opposed Mawd the right and true heir of King Henry he reigned with an improved wickedness For he did so strangely and odly chop and change every thing it is Malmsbury speaks it as if he had sworn only for this intent that he might shew himself to the whole Kingdom a Dodger and Shammer of his Oath But as he saith perjuros merito perjuria fallunt that is Such men as Perjuries do make their Trade By their own Perjuries most justly are betray'd They are things of custom to which he swore and such as whereby former priviledges are ratifed rather than new ones granted However some things there are that may be worth the transcribing 41. Castles were frequently raised 'tis Nubrigensis relates it in the several Counties by the bandying of parties and there were in England in a manner as many Kings or rather as many Tyrants as Lords of Castles having severally the stamping of their own Coin and a power of giving Law to the Subjects after a Royal manner Then was the Kingdom plainly torn to pieces and the right of Majesty shattered which gains to it self not the least lustre from stamping of Money Though I know very well that before the Normans in the City of Rochester Canterbury and in other Corporations and Towns Abbots and Bishops had by right of priviledge their Stampers and Coiners of Money 42. Next to the King Theobald Arch Bishop of Canterbury presided over the Council of London where there were also present the Peers of the Realm which buzzed with new appeals For in England t is Henry of Huntington sayes it appeals were not in use till Henry Bishop of Winchester when he was Legate cruelly intruded them to his own mischief Wherefore what Cardinal Bellarmin has writ beginning at the Synod of Sardis concerning the no body knows how old time of the universal right of appealing to the Pope of Rome does not at all as to matter of fact seem to touch upon this Kingdom of ours by many and many a fair mile 43. In the time of King Stephen so 't is in the Polycraticon of John of Salisbury the Roman Laws were banisht the Realm which the Hoâ—se of the Right Reverend Theobald Lord Primate of Britanny had fetcht or sent for over into Britanny Besides it was forbidden by Royal Proclamation that no one should retain or keep by him the Books If you understand the Laws of the Empire I rather take them to be the Decrees of the Popes it will not be much amiss out of the Parliament Records to adjoyn these things of later date In the Parliament holden by Richard of Bourdeaux which is said to have wrought Wonders Upon the Impeachment of Alexander Nevil Arch-Bishop of Canterbury Robert Uere Duke of Ireland Michael Pole Earl of Suffolk Thomas Duke of Glocester Richard Earl of Arundel Thomas Beauchamp Earl of Warwick and others That they being intrusted with the management of the Kingdom by soothing up the easie and youthful temper of the King did assist one another for their own private interest more than the publick well near to the ruine and overthrow of the Government it self the Common Lawyers and Civilians are consulted with about the form of drawing up the Charge which they answer all as one man was not agreeable to the rule of the Laws But the Barons of Parliament reply That they would be tyed up to no rules nor be led by the punctilioes of the Roman Law but would by their own authority pass judgement pur ce que la royalme d' Angleterre n' estoit devant ces heures n'y à l' entent de nostre dit Seigneur le Roy Seigneurs de Parlament unque ne serra
David Powell and others have informed us The Druids were wont to meet to explain the Laws in being and to make new ones as occasion required as is most likely in some certain place designed for that purpose as now at this very time all matters of Law go to be decided at Spire in Germany at Westminster-Hall in England and Paris in France Their publick Convention or Meeting-place was constantly as Julius Caesar tells us in the borders of the Carnutes the middle Region of all France Some think that a Town at eight Miles distance from the Metropolis of those people commonly called Dreux was designed for that use Whilst the Saxons governed the Laws were made in the General Assembly of the States or Parliament In the front of King Ina's Laws 't is above Eight Hundred and Eighty years that he first reigned we read thus It Ine mid godes gift West-Saxna Cyning mid getbeat mid lere Cenredes mines fader hedde Erconwald mine biscops mid eallum minum ealdor mannum tham yldestan Witan mines theode be beodeth c. which in our present English speaks thus I Ina by the Grace of God King of the West-Saxons by the advice and order of Kenred my Father and of Hedda and Erconwald my Bishops and of all my Aldermen and of the Elders and Wise Men of my people do command c. There are a great many instances of this kind in other places Moreover Witlaf and Bertulph who were Kings of the Mercians near upon Eight hundred years ago do in their instruments under their hands make mention of Synods and Councils of the Prelates and Peers convened for the affairs of the Kingdom And an ancient Book has this passage of Abendon Here was the Royal Seat hither when they were to treat of the principal and difficult points of State and affairs of the Kingdom the people were used to meet and flock together To this may be added that which Malmesbury sayes of King Edward in the year of our Lord 903. The King gathered a Synod or â—ssembly of the Senators of the English Nation over which did preside Pleimund Arch-Bishop of Canterbury interpreting expresly the words of the Apostolical Embassy These Assemblies were termed by the Saxons Widdena gemcdes i. e. Meetings of the Wise Men and Micil sinodes i. e. the Great Assemblies At length we borrowed of the French the name of Parliaments which before the time of Henry the First Polydore Virgil sayes were very rarely held An usage that not without good reason seems to have come from the ancient Germans So Tacitus sayes of them Concerning smaller matters the Princes only concerning things of greater concern they do all the whole body of them consult yet in that manner that those things also which it was in the peoples power to determine were treated of by the Princes too And I have one that hath left it in writing that when there was neither Bishop nor Earl nor Baron yet then Kings held their Parliaments and in King Arthur's Patent to the University of Cambridge for ye have my leave if you can find in your heart to give credit to it as John Key does by the counsel and assent of all and singular the Prelats and Princes of this Realm I decree There were present at Parliaments about the beginning of the Normans times as many as were invested with Thirteen Fees of Knights service and a third part of one Fee called Baron's from their large Estates for which reason perhaps John Cochleius of Mentz in his Epistle Dedicatory to our most Renowned Sir Thomas More prefixt before the Chronicle of Aurelius Cassiodorus calls him Baron of England But Henry the Third the number of them growing over big ordered by Proclamation that those only should come there whom he should think fit to summon by Writ These Assemblies do now sit in great State which with a wonderful harmony of the Three Estates the King the Lords and the Commons or Deputies of the People are joyned together to a most firm security of the publick and are by a very Learned Man in allusion to that made word in Livy Panaetolium from the Aetolians most rightly called Pananglium that is all England As in Musical Instruments and Pipes and in Singing it self and in Voices sayes Scipio in Tully's Books of the Common-wealth there is a kind of harmony to be kept out of distinct sounds which Learned and Skilful Ears cannot endure to hear changed and jarring and that consort or harmony from the tuning and ordering of Voices most unlike yet is rendred agreeing and suitable so of the highest and middlemost and lowermost States shuffled together like different sounds by fair proportion doth a City agree by the consent of persons most unlike and that which by Musicians in singing is called Harmony that in a City is Concord the straightest and surest bond of safety in every Common-wealth and such as can by no means be without Justice But let this suffice for Law-makers CHAP. XX. The Guardians of the Laws who In the Saxons time seven Chief One of the Kings among the Heptarchs styled Monarch of all England The Office of Lord High Constable Of Lord Chancellor ancient The Lord Treasurer Alderman of England what Why one called Healfkoning Aldermen of Provinces and Graves the same as Counts or Earls and Viscounts or Sheriffs Of the County Court and the Court of Inquests called Tourn le Viscount When this Court kept and the original of it I Do scarce meet before the Saxons times with any Guardians of the Laws different from these Law-makers In their time they were variously divided whose neither Name nor Office are as yet grown out of use The number is made up to give you only the heads by these to wit the King the Lord High Constable the Chancellor the Treasurer the Alderman of England the Aldermen of Provinces and the Graves Those of later date and of meaner notice I pass by meaning to speak but briefly of the rest The King was alwayes one amongst the Heptarchs or seven Rulers who was accounted I have Beda to vouch it the Monarch of all England Ella King of the South-Saxons so sayes Ethelwerd was the first that was dignified with so high a Title and Empire who was Owner of as large a Jurisdiction as Ecbright the second was Ceulin King of the West-Angles the third Aethelbrith King of the Kentish-men the fourth Redwald King of the Easterlings the fifth Edwin King of Northumberland the sixth Oswald the seventh Osweo Oswala's Brother after whom the eighth was Ecbright His West-Saxon Kingdom took in the rest for the greatest part The Office of Lord High Constable which disappeared in Edward Duke of Buckingham who in Henry the Eighth's time lost his Head for High-Treason was not seen till the latter end of the Saxons One Alfgar Staller is reported by Richard of Ely Monk to have been Constable to
Edward the Confessor and Mr. Camden mentions a dwelling of his upon this account called Plaiffy in the County of Middlesex He of Ely sets him out for a Great and Mighty Man in the Kingdom And indeed formerly that Magistrate had great power which was formidable even to Kings themselves They who deny there were any Chancellors before the coming in of the Normans are hugely mistaken Nor are they disproved only out of the Grant of Edward the Confessor to the Abbot of Westminster which I am beholden to Mr. Lambard for at the bottom of which these words are set down I Syward Publick Notary instead of Rembald the Kings Majesties Chancellor have written and subscribed this paper but also out of Ingulph who makes mention of Farketulus some while after that Abbot of Crowland Chancellor of King Edred by whose Decree and Counsel were to be handled treated whatsoever businesses they were Temporal or Spiritual that did await the Judgement of the King and being thus treated of by him might irrefragably stand good And Francis Thinn that Learned Antiquary has reckoned up several who have discharged this Office as Turketill to King Ethelbald Swithin Bishop of Winchester to King Egbert Vlfin to King Athelstan Adulph to King Edgar Alsy Abbot and Prelate of Ely to King Ethelred Concerning which Office and the Seals which the Chancellor in old time had the keeping of I had rather you would consult with Camden's Tribunals or Seats of Justice and those things which John Budden at Wainfleet Doctor of Laws has brought out of the Archives into his Palingenesia than seek them at my hands As for Treasurers Dunstan was so to King Edred and Hugolin to the Confessor But that fifth title of Alderman of England is an unusual one Yet if I don't mistake my self he was the Chief President in Tryals at Law and an Officer to keep all quiet at home the same as now perhaps is commonly called the Lord Chief Justice of England This remarkable name I do not meet with neither in the Monkish Chronologers which are to be had at the Shops nor in the Records of our Laws But a private History of the Abbey of Ramsey in Huntingdon-shire has given us notice of one Ailwins Tomb with this Inscription HIC REQUIESCIT AILWINUS INCLITI REGIS EADGARI COGNATUS TOTIUS ANGLIAE ALDERMANNUS ET HUJUS SACRI COENOBII MIRACULOSUS FUNDATOR that is Here resteth Ailwin Kinsman of the Renowned King Edgar Alderman of all England and the miraculous Founder of this Sacred Monastery And by reason of his great Authority and Favour which he had with the King by a Nick name they called him Healfkoning i. e. Half-King Now Henry of Huntingdon sayes that Tostius Earl or to use his phrase Consul of Northumberland and Harald Sons of Godwin Earl of Kent were Justices of the Realm Aldermen may aptly be termed by the word Senators Those Judges did exercise a delegated power throughout the Provinces called Counties or Shires and the Graves an under-delegated power from them The word is as much as Governours and is the same thing as in High Dutch Grave in Landgrave Burgrave Palsgrave c. and what amongst some of our own people Reev We shall call them both as that Age did in a Latin term the one Comites i. e. Counts or Earls the other Vicecomites that is Viscounts or Sheriffs The name of Count is every where met with amongst the most ancient of the Monks which yet does very often pass into that of Duke in the subscription of Witnesses And in the Charter of the Foundation of Chertsey Abby in Surrey Frithwald stiles himself subregulus i.e. an under Kingling or petty Vice-Roy to Wulpher King of the Mercians make no question of it he meant he was a Count. A Viscount and a Vice-Lord are more than very like they are the very same Ingulph sayes it above And in the last hand-writing of King Edred we have I Bingulph Vice-Lord advised it I Alfer Viscount heard it These Counts and Viscounts or Earls and Sheriffs had in their Counties their several Courts both for private and for publick matters For private affairs they had every Month a Meeting called the County Court Let every Grave as we have it in Edward the Elder 's Laws every fourth Week convene and meet the people in Assembly let him do equal right to every one and determine and put an end to all Suits and Quarrels when the appointed days shall come For publick business King Edgar ordered the Court of Inquests or Inquiries called Tourn le Uiscount Let a Convention or Meeting be held twice every year out of every County at which let the Bishop of that Diocess and the Senator i. e. the Alderman be present the one to teach the people the Laws of God the other the Laws of the Land What I have set down in William the First at the end of the fourth Chapter of this second Book you ought to consider of here again in this place The inhabitants did not meet at this Court of Inquests at any season promiscuously and indifferently but as it is very well known by the use and ancient Constitutions of the Realm within a Month either after Easter or after Michaelmas In which Court seeing that not only the Count as now a dayes the Viscount or Sheriff does but also the Bishop did preside it does not at all seem difficult to trace the very original of this temporary Law That peradventure was the Synod of Antioch held in Pope Julius the First 's time and acknowledged in the sixth General Council held at Constantinople In this latter there are expresly and plainly two Councils or Meetings of the Bishops to be kept every year within three Weeks after Easter and about the middle of October if there be any small difference in the time it can be no great matter of mistake You may help your self to more other things of meaner note out of what has been said before about Hundreds Bourghs and the like And this may serve in brief for the Saxons who were entrusted with the care of their Laws CHAP. XXI Of the Norman Earls Their Fee Their power of making Laws Of the Barons i.e. Lords of Manours Of the Court-Baron It s rise An instance of it out of Hoveden Other Offices much alike with the Saxons I Shall be briefer concerning the Normans I mean their Earls and Barons Their Counts or Earls before the Conquest except those of Leicester and perchance some others were but Officers and not as yet hereditary When William bore the sway they began to have a certain Fee and a descent of Patrimony having together with their Title assigned to them a third part of the Revenues or Rents which did arise out of the whole County to the Exchequer This custom is clear enough in Gervase of Tilbury in the case of Richard de Redueriis made Earl of Devonshire by Henry the
First Jeoffrey de Magna Villa made Earl of Essex by Mawd the Empress It seems that the Saxon Earls had the self-same right of sharing with the King So in Doomsday Book we find it The Queen Edeua had two parts from Ipswich in Suffolk and the Earl or Count Guert the third and so of Norwich that it paid Twenty Pound to the King and to the Earl Ten Pound so of the Revenues of the Borough of Lewes in Sussex the King had two shares and the Earl the third And Oxford paid for Toll and Gable and other customary Duties Twenty Pound a year to the King besides Six Quarts of Honey and to Earl Algar Ten Pound To conclude it appears also that these Norman Earls or Counts had some power of making Laws to the people of their Counties For instance the Monk of Malmesbury tells us that the Laws of William Fitz-Osborn Earl of Hereford remained still in force in the said County that no Souldier for whatsoever offence should pay above Seven Shillings The Writings and Patents of the men of Cornwall concerning their Stannaries or Tinn-Mines do prove as much nor need I tell the story how Godiva Lady to the Earl Leofrick rid on Horse-back through the Streets of Coventry with her hair disshevelled all hanging about her at full length that by this means she might discharge them of those Taxes and Payments which the Earl had imposed upon them Out of the Countreys wherein all Estates were subject to Military Service the Barons had their Territories as we call them Mannors and in them their Courts to call their Tenants together at the end of every three Weeks and to hear and determine their Causes A Civilian one Vdalricus Zazius would have the original of these Courts among other Nations to have come by way of imitation from Romulus his making of Lords or Patrons and their Clanns or Tenants The use of them at this day is common and ordinarily known But to shew how it was of old we will borrow out of Hoveden this spark of light John Marshall complained to Henry the Second that whereas he had claimed or challenged in the Arch-Bishops Court a piece of Land to be held from him by right of inheritance and had a long time pleaded upon it he could obtain no Justice in the case and that he had by Oath falsified the Arch-Bishops Court that is proved it to be false by Oath according to the custom of the Realm to whom the Arch-Bishop made answer There has been no Justice wanting to John in my Court but he I know not by whose advice or whether of his own head brought in my Court a certain Toper and swore upon it that he went away from my Court for default of Justice and it seemed to the Justices of my Court that he did me the injury by withdrawing in that manner from my Court seeing it is ordained in your Realm that he who would falsifie anothers Court must swear upon the holy Gospels The King not regarding these words swore that he would have Justice and Judgement of him and the Barons of the Kings Court did judge him to be in the Kings Mercy and moreover they fined him Five Hundred Pound As to doing Justice in all other Cases and managing of Publick Affairs the Normans had almost the same Names and Titles of Officers and Offices as the Saxons had FINIS A Brief CHRONOLOGY TO Attend and Assist THE HISTORY In the Year of the WORLD Â 1910. Samothes if there ever were such a man bears rule 2805. Brutus makes a descent that is lands with his Trojans in Cornwall or Devonshire 3516. Dunvallo Molmutius swayes the Scepter 3627. Martia Dowager of King Quintilen is Queen Regent during the Minority of her Son Sisillius the First 3942. Caius Julius Caesar arrives at Deal on the Sea-Coast of Kent and Territa quaesitis ostendis terga Britannis that is Having inquiry made After the Britans bold He turn'd his back 't is said His courage would not hold and was the first that discover'd Britanny to the Romans In the Year of CHRIST Â 44. Claudius Caesar Emperour sends over Aulus Plautius with an Army as his Lieutenant General and by degrees reduceth the Countrey into the form of a Roman Province 52. A Colony of Veterans or old Roman Souldiers is sent down to Maldon in Essex 86. Britanny is subdued or brought under the yoke by the Conduct of Junius Agricola in the time of Domitian the Emperour 183. Lucius or King Lucy was the first Christian King Forasmuch as he was of the same standing with Pope Eleutherius and the Emperour Commodus Whence it appears that Beda makes others mistake and is himself mistaken in his wrong account of time in this affair 428. The Saxons Angles Jutes Danes Frisons or Friselanders arrive here from Germany Taurus and Felix then Consuls in the one and twentieth year of Theodosius the younger The common or ordinary account of Writers sets it down the four hundred forty ninth year but that great man both for Authority and Judgement William Camden Clarenceaux King at Arms hath upon the credit of ancient Records closed this Epoch or Date of time within that term of years which I have set in the Margin 561. King Ethelbert the First King of the English Saxons who profest Christianity 800. King Egbert 872. King Alured or Alfred 959. King Edgar 1017. Canute or King Knute the Dane 1036. Harold eldest Son to King Knute called for his swiftness Harefoot 1042. Edward the Confessor after whom Harold Son to Godwin Earl of Kent usurp't the Throne where he continued only nine Months 1066. William Duke of Normandy after a Battel fought upon the Plain near Hastings got the Dominion or Soveraignty of the British Island 1088. William Rufus second Son of the Conquerour 1100. Henry the First younger Brother to Rufus 1135. King Stephen Count of Blois in France Nephew to Henry by his Sister Adela 1153. Henry the Second Grand-child to Henry the First by his Daughter Mawd the Empress and Jeoffrey Count of Anger 's in France FINIS BRIEF NOTES UPON Some of the more Difficult Passages IN THE TITLE-PAGE COmmon and Statute Law So I render Jus Prophanum as Prophane is opposed to Sacred and Ecclesiastical as himself explains the term in his Preface out of Festus Otherwise it might have been render'd Civil Law as relating to Civil affairs and the Government of State not medling with the Canons and Rules of the Church but that the Civil Law with us is taken generally in another sense for the Imperial Law which however practised in several other Nations hath little to do in England unless in some particular cases Of English Britanny that is that part of Britain which was inhabited by the Angles in Latin called Anglo-Britannia by us strictly England as for distinction the other part of the Island Wales whither the Welsh the true and ancient Britans were driven by the Saxons
Sotum What difference between a Scot and a Sot to which he as freely replyed Mensa the Table Sir I shall not determine But Scotus or Scot is the name of his Countrey he being a Scotch-man and for that reason called also Erigena that is Irish born to wit a Highlander for those people were originally Irish and came out of that Island over into the North parts of Scotland Now Ireland is by several Authors Greek and Latin called Ierna and by the Inhabitants themselves Erin L. 43. The Goddess Anna Perenna The Lady President of the year Anna ab Anno to whom they addrest their devotions that she would perennare that is preserve and continue health and plenty and prosperity from year to year for which reason she was called Anna Perenna Now our Author here brings in long-lived Nestor and this Goddess to shew that those good fellows in quaffing of healths do wish muchos annos as the Spaniard saith many and many a years life to their absent friends while in the mean time by tossing off so many bowsing Canns they shorten their own lives Pag. 42. lin 24. Englescyre Or Englecerie that is the being an English-man For there was a Law made by King Knute in favour of his Danes and so afterward it was interpreted in behalf of the Francigenae French-men or whatever foreigners that if any such were privily murdered or slain the Village where the fact was done should be amerced in a lusty fine to the King unless they could prove Englecerie that is that the murdered person was an English-man one born of English Parents in which case there was no fine levied So that the Danes and French when they governed here provided they might secure themselves from the English were well enough content to let them destroy one another CHAP. XXV Pag. 44. lin 11. An Olympiad An account of time used by the Greeks consisting of four years so called from the Olympick Games which were celebrated in honour of Jupiter Olympius every fifth year This reckoning began first in the year of the World three thousand one hundred seventy four In the SECOND BOOK CHAP. I. PAg. 48. l. 5. By right of Fréehold Allodii jure that is by a mans own right without acknowledgment of service or fealty or payment of Rent to any other as a Superiour Lord. In which respect it is opposed to an Estate in Fée wherein though a man hath a perpetual right to him and to his heirs for ever yet seeing he owes a duty and service for it it cannot be said properly and simply to be his own And such are all mens Estates here in England but the Kings in the right of his Crown who cannot be supposed to hold of another or to owe fealty to any Superiour but to God only Lin. 12. Vnder Military service Or Knights service that is to find the King such a number of Men and Arms in time of War as it is here expressed See Cowell in the word Chivalry Indeed the Clergy before the Conquerour in the time of the Saxons as we find it in the five and twentieth Chapter of the first Book were allowed to be free from Secular Services but with an Exception and Reserve however of these things to wit Expedition Repairing of Castles and Building of Bridges from which last duty the High-Priests among the Romans were called Pontifices i. e. Bridge-makers Now this bringing of the Bishops Baronies under Knights Service was sure enough design'd to engage them into a close dependence upon the Crown and to take them off from hankering after any forreign Power to which they might pretend to owe any subordination as all along the times of Popery out of reverence to the Holy See they were forward enough upon occasion to think themselves obliged to do even to the high discontent and great disservice of their Kings CHAP. II. Pag. 51. lin 12. Ready money So I render Viva pecunia which though Spelman saith it is so called that it may the more expresly signifie pecudes i. e. Cattle yet he doth not to me I confess make out by any fair instance that it doth ever so signifie and that it cannot be taken in that sense here is plain from what immediately goes before quot animalia imò quantum vivae pecuniae quisque possidebat where animalia living creatures include pecudes the Cattle CHAP. III. Pag. 54. lin 32. Boseham What Earl Godwin's trick was or wherein the conceit lay I cannot at present well imagine unless it were in the equivocation or misunderstanding of the word Boseham as it falls in with the word Bosom in the pronunciation and sound of it thus Supposing the Earl at meeting of the Arch-Bishop coming up to him upon pretence of saluting him said Give me your Boseham my Lord to which the Arch-Bishop thinking belike he might by way of desiring his Pastoral embrace mean only his bosom readily made answer I give you my bosom which the Earl with a cunning fetch interpreted a Grant of his Estate of Boseham Pardon Reader my mistake if it be one since I have no better account from my own guess to give meeting with no help from our Law-Dictionaries CHAP. IV. P. 56. lin 8. The first Sheriffs of Counties A Sheriff or Shyrereed signifies the Governour of a County called in Latin Vice-comes as Deputy to the Count or Lord or Chief Man of the County though even in the Confessor's time he was reckoned the Kings Officer and not the Counts This Office as Mr. Camden tells us was first set up by King Alfred who also divided England into Counties and those Counties again into Hundreds and Tythings Lin. 29. Other Judges without appeal This should seem to be the Court of Chancery for which reason the Lord Chancellor is said to keep the Kings conscience as here these Judges are compared to the Kings bosom Lin. 37. Acting a Busiris his part i. e. Treating strangers ill he being a cruel Tyrant of Egypt who slew strangers and sacrificed them to his Gods whence the Proverb Busiridis arae Pag. 57. lin 39. that he should pay it at the Scale That is should pay it by weight or according to full weight CHAP. VI. Pag. 60. lin 17. Being Lord Chief Justice of the whole Kingdom In the Latin it is thus expressed totius regni placitator exactor where I confess the former title of the two gave me the occasion of my mistake as if he had been Chief Justice of the Common Pleas whereas I should rather have rendred it thus who had been to wit in King Rufus his time Pleader or Demander and Receiver of the Kings duties throughout the whole Kingdom For such an Officer this Exactor regius was otherwise called Grasio See Spelman upon both those words Lin. 39. In the times of the Saxons a Hereot This at first was a tribute given to the Lord for his better preparation towards War but afterward though the name were kept the thing was
altered being taken for the best Chattle that the Tenant hath at the hour of his death due to the Lord by custom be it Horse Ox c. That Hereot and Relief do not signifie the same thing appears by this that they are both often sound to be paid out of one and the same Tenure and again that the heir alway succeeds into the Estate upon the payment of the Relief but not alwayes upon the payment of the Hereot Lin. 42. In French is called a Relief From the Verb Relever to raise again and take up the Estate which had faln into the Lords hand by the death of the Ancestor It is a summ of money which the new Homager when he is come to age payes to the Lord for his admission or at his entrance into the estate Whence by the old Civilians 't is called Introitus and in Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 This summ was moderately set wherein it differed from Ransom which was much more severe The Kings rates upon his Homagers were thus An Earls heir was to give an hundred Pounds a Barons an hundred Marks a Knights an hundred Shillings at most and those of lesser estate less according to the ancient custom of their Tenures as Spelman quotes it out of the Charter of Henry the Third Pag. 61. lin 11. Of the greater Uavasors They were a sort of Gentlemen next in degree to the Barons They did not hold immediately of the King but of some Duke Marquess or Earl And those that held from them again were called Valvasini or the lesser Vavasors There is little certainty what their Offices or Priviledges were or indeed whence they were so called whether qu. ad valvas stantes or valvae assidentes for their sitting or standing at their Lords door if those of that quality did so as some would have it or that they kept the doors or entrances of the Kingdom against the enemies as Spelman sayes or whether from Vassalâ—i as the Feudists derive the name from that inferiour Tenure they had mediately from the King by his great Lords which seems the more likely because these greater Vavasors who did so hold are sometimes termed Valvasores regii and Vassi dominici that is the Kings Vassals Lin. 27. Her Dowry and right of Marriage In the Latin it is dotem suam maritagium Now Dos is otherwise taken in the English than in the Roman Laws not for that which the man receives with his Wife at marriage a Portion but for that which the Woman hath left her by her Husband at his death a Dowry And Maritagium is that which is given to a Man with his Wife so that 't is the same as Dos among the Romans saith Spelman But this is too general I think that the man should be obliged to return at his death all to his Wife that he had with her beside leaving her a Dowry I am therefore rather inclined to Cowell who tells us Maritagium signifies Land bestowed in marriage which it seems by this Law was to return to the Wife if her Husband dyed before her The word hath another sense also which doth not belong to this place being sometime taken for that which Wards were to pay to the Lord for his leave and consent that they might marry themselves which if they did against his consent it was called Forfeiture of marriage Lin. 35. The common Duty of Money or Coinage So I render the word Monetagium For it appears that in ancient times the Kings of England had Mints in most of the Countreys and Cities of this Realm See Cowell in the word Moniers For which priviledge 't is likely they paid some duty to the chief place of the Mint Thus in Doomâ—sday we read as Spelman quotes it that in the City Winecestre every Monyer paid twenty shillings to London and the reason given pro cuneis monetae accipiendis for having Stamps or Coins of Money For from this Latin word Cuneus which our Lawyers have turned into Cuna from whence the Verb Cunare comes our English word Coyn. Now it is more than probable that the Officers of the Chief Mint might by their exactions upon the inferiour Mints give occasion for the making of this Law Lin. 42. Or Children or Parents By Parent here we are to understand not a Father or Mother but a Cousin one a-kin as the word signifies in French and as it is used in our Laws And indeed the Latin word it self began to have that sense put upon it in vulgar speech toward the declension of the Empire as Lampridius informs us Pag. 62. lin 21. A pawn in the scarcity of his money That is if he were not able to pay his forfeit in specie i. e. to lay down the money he was to give security by a pawn of some of his Goods or Chattels See Cowell in the word Gage This in Latin is called Vadium a pawn or pledge from Vas vadis a surety Hence Invadiare to pawn or ingage a thing by way of security till a debt be paid Lin. 23. Nor shall he make amends From the French amende in our Law-Latin emenda which differs from a Fine or mulct in this that the Fine was given to the Judge but Amends was to be made to the Party aggriev'd Now there were three sorts of this Amende the Greater which was like a full Forfeiture the Mid-one at reasonable terms and the Least or Lowest which was like a gentle Amercement This distinction will help to explain the meaning of this Law L. 30. Per fée de Hauberke This in Latin is called Feudum Hauberticum i. e. Loricatum sayes Hotoman from the French word Haubert that is a Coat of Mail when a Vassal holds Land of the Lord on this condition that when he is called he be ready to attend his Lord with a Coat of Mail or compleat Armour on Now Haubert as Spelman tells us properly signifies a High Lord or Baron from Haut or hault high and Ber the same as Baro a Man or Baron And because these great Lords were obliged by their place and service to wait upon the King in his Wars on Horse-back with compleat Armour and particularly with a Coat of Mail on hence it came sayes he that the Coat of Mail it self was also called Haubert though he doth afterward acknowledge that the word is extended to all other Vassals who are under that kind of Tenure But then at last he inclines to think that the true ancient writing of the word is Hauberk not Haubert as it were Hautberg i. e. the chief or principal piece of Armour and Berg he will have to signifie Armour as he makes out in some of its compounds Bainberg Armour for the Legs and Halsberg Armour for the Neck and Breast and derives it from the Saxon Beorgan i. e. to arm to defend Add to this saith he that the French themselves and we from them call it an Haubergeon as it were Haubergium Lin. 33. From
all Gelds The Saxon word geld or gild signifies a Tribute or Tax an Amercement a payment of money and money it self whence I doubt not but the best sort of money was called Gold It is from the Verb geldan or gyldan to pay In Latin it is Geldum and not Gilda as Cowell writes it For this signifies quite another thing a Fraternity or Company of Merchants or the like Whence a Gild-hall that is the Hall of the Gild or Society such as was once the Stilyard called Gildhalla Teutonicorum the Gild-hall for the Dutch Merchants from the Hanse-Towns CHAP. VII Pag. 63. lin 25. Iphis and Ianthis and Ceneus Persons mention'd by Ovid who changed their Sex from Female to Male. Iphis was a Maid of Creet who after her Metamorphosis when she turn'd to Man took Ianthe to Wife and Caenis for that was her Maiden Name was a Thessalian Girl whom Neptune made a Whore of first and then at her request a Man who thenceforward went by the Name of Caeneus Lin. 34. Cheats whom they commonly call Coyners In Malmesbury's Latin Trapezitas quos vulgò Monetarios vocant Which bare citation is all the account that Spelman gives of the word Monetarius It doth properly signifie an Officer of the Mint that makes and coyns the Kings money a Monier But here by the Historian's implying that such fellows as this Law was made against were falsarii Cheats and by our Author 's terming of them adulteratores monetae Counterfeiters of Coyn we must understand them to be False Coyners Clippers Washers Imbasers of the Kings Coyn and the like And therefore I render'd trapezitas which otherwise is a word of innocent meaning for Money-Changers Bankers c. in the Historian's sense Cheats CHAP. VIII Pag. 65. lin 24. Every Hide of Land It is so called from the Saxon word hyden to cover so that thus it would be the same as Tectum in Latin a Dwelling-house And thus I question not but there are several houses called The Hide for I know one or two my self so called that is the Capital Messuage of the Estate Nor is it so confined to this sense but that it takes in all the Lands belonging to the Messuage or Manour-house which the old Saxons called hidelandes and upon some such account no doubt Hidepark had its name as a Park belonging to some great House Now as to the quantity how much a Hide of land is it is not well agreed Some reckon it an hundred Acres others thereabouts by making it contain four Yardlands every Yardland consisting of twenty four Acres The general opinion is that it was as much as could be ploughed with one Plow in a year terra unius aratri culturae sufficiens And thus it should be much what the same as Carrucata terrae i. e. a Plough-land From Bede who translates it familia they gather it was so much as could maintain a family There is mention made of these Hides in the Laws of King Ina an hundred years before King Alfred who divided the Countrey into Counties or Shires And Taxes and Assessments were wont to be made according to these Hides up as high as King Ethelred's time in the year of our Lord 1008. Since the Conquest William the First had six shillings for every Hide in England Rufus four Henry the First here three for the marriage of his daughter Pag. 66. lin 8. This right is called Wreck i. e. by which the King claims shipwrack't goods cast on shoar For though by the Law of Nature such things as being nullius in bonis having no Owner every one that finds them may seem to have a right to them yet by the Law of Nations they are adjudged to the Prince as a special priviledge by reason of his dignity Now Wreck or as the French call it Varec properly signifies any thing that is cast on shoar as Amber precious Stones Fishes c. as well as shipwrack't goods from the Saxon wraec i. e. any thing that is flung away and left forlorn though use hath limited the word to the later sense CHAP. IX Pag. 68. lin 6. The Roman Laws were banisht the Realm I suppose there may be some word missing or mistaken in the Latin à regno jussae sunt leges Romanae But that which follows the forbidding of the Books obliged me to that interpretation for why should the Books of those Laws be prohibited if the Laws themselves were as the Latin reading seems to import ordered and ratified by the Realm Wherefore I suppose some mistake or omission and for à regno jussae read à regno pulsae or exulare jussae c. unless you would like to have it thus rendred commanded out of the Kingdom which I confess would be a very odd unusual construction CHAP. X. Pag. 69. lin 39. Three hundred Marks of Gold A Mark weigh'd eight ounces and as Cowell states it out of Stow it came to the value of 16 l. 13 s. 4 d. At this rate three hundred Marks of Gold come to five thousand Pound and to every Bishop five Marks supposing only ten Bishops come to 833 l. 6 s. 8 d. which is a very unlikely summ in this business 'T is true the value of it as of other Coyns and summs might vary And so we find in Spelman that an uncertain Author reckons a Mark of Gold to be worth fifty Marks of Silver But then 't is as uncertain what Marks of Silver he means For if they be such as ours are and as they were in King John's time at 13 s. 4 d. then a Mark of Gold will be of the value of 33 l. 6 s. 8 d. which is just double to the former value of 16 l. 13 s. 4 d. which being resolved into Marks of Silver makes but 25. But in ancient times a Mark of Silver was only 2 s. 6 d. so that fifty of them will make but 6 l. 5 s. Another instance we meet with where one Mark of Gold is accounted equivalent to ten Marks of Silver which taking a Mark for 13 s. 4 d. comes to 6 l. 13 s. 4 d. Another where nine Marks of Silver pass for one Mark of Gold in a payment to the King which is just six pound And these three last accounts agree pretty well together Taking the middlemost of the three viz. a Mark of Gold at ten Marks of Silver thus the above named summ of three hundred Marks of Gold that is three thousand Marks of Silver amounts to two thousand Pound and the five Marks to every Bishop supposing but ten Bishops come to 333 l. 6 s. 8 d. But if we take these Marks of Silver at 2 s. 6 d. the account will grow much less For ten such Marks are but 1 l. 5 s. so that the three hundred Marks of Gold at this rate will come but to 375 l. Sterling But that these Marks of the ancient and lower estimate are not here intended may probably enough be gathered from one passage more
at Rome One hundred for the honour of S. Peter to find Lights for his Church another hundred for the honour of S. Paul on the like occasion and the third hundred for the Pope's use to enlarge his Alms. This was done in the year 858. when Leo the Fourth was Pope Lin. 9. Thirty pence of live money Possibly the worth or value of thirty pence in Goods and Chattels King Offa in his Grant thus words it quibus sors tantum contulit extra domos in pascuis ut triginta argenteorum pretium excederet who had an Estate besides Houses in Lands which might exceed the value of thirty silver pence Lin. 15. Out of a Rescript of Pope Gregory We have the whole Letter set down in Spelman which speaks in English thus GREGORY the Bishop Servant of the Servants of God to his Worshipful Brethren the Arch-Bishops of Canterbury and York and to their Suffraegans and to his beloved Sons the Abbots Priors Arch-Deacons and their Officials appointed throughout the Kingdom of England unto whom these Letters shall come Greeting and Apostolical Benediction In what manner the Pence of S. Peter which are due or owing to our Chamber are to be gathered in England and in what Bishopricks and Dioceses they are owing that there may arise no doubt on this occasion we have caused it to be set down in this present Writing according as it is contained in the Register of the Apostolick See Out of the Diocess of Canterbury seven pounds and eighteen shillings sterling Out of the Diocess of London sixteen pounds ten shillings And so of the rest Yeoven at the old City April 22. in the second year of our Popedom There is some difference though in the account of the Dioceses For after Lincoln he leaves out Coventry and puts Chichester for Chester 8 l. and then after Bath he puts in Salisbury and Coventry with a mistake 10 l. 10 s. for 5 s. and leaves York last Besides every body knows there are more Dioceses now than were then This was Gregory the Fifth that wrote this and it was our Author tells us in the time of King Edward the Second But Edward the Third in the year of the Lord 1365. and of his Reign 39. forbad these Peter-pence to be paid any more at Rome or to be gathered any longer in England CHAP. XV. Pag. 81. lin 10. Into six Provinces or Circuits As they are for number still with two Judges a piece though at first three How these differ from what they now are as to the Counties the Reader may easily satisfie himself Here are thirty seven of them as we now reckon only with this difference that Monmouth and Rutland are left out and Richmond and Copland are put in Pag. 82. lin 27. And if he perish i. e. sink let him lose one foot For that in this tryal by water was the sign and proof of guilt if the party thrown in did not swim which is quite contrary in the tryal of Witches as you will find in the next Chapter which treats of Ordeals Lin. 39. The Kings great Assise Assise is a word that hath many significations in our Law It is here in the Title taken for a Statute The Assises i. e. the Statutes and Ordinances of King Henry made at Clarendon But in this place it is used for a Jury and it is either the Great or Grand Assise which serv'd for the right of Property and was to consist of twelve Knights or the Petty Assise which served for the right of Possession only and was made up of twelve lawful men CHAP. XVI Pag. 86. lin 34. The superstitions and fopperies These you have also in Sir H. Spelman with an Incipit Missa Judicii which shews that the Church of Rome did once approve of these Customs which since she hath condemned notwithstanding her pretence of being Infallible I would to God she would deal as ingenuously in throwing off those other errors and corruptions we do so justly charge her with CHAP. XVII Pag. 87. lin 21. Hogenhine Or Agen-hyne that is ones own servant It is written also Home-hyne that is a servant of the house Lin. 33. Holding in Frank Pledge The Latin is francus tenens Wherefore amend the mistake and read holding in Frank Fee For Frank Pledg is a thing of another nature as belonging to a mans Behaviour and not to his Tenure Now Frank Fee is that which is free from all service when a man holds an Estate at the Common Law to himself and his heirs and not by such service as is required in ancient demesne Pag. 88. lin 12. The Falcidian Law So named from one Falcidius who being Tribune of the people in Augustus his time was the Maker of this Law Lin. 33. Twenty pounds worth of Land in yearly revenue So I render 20. libratae terrae For although Cowell in proportion to Quadrantata or Fardingdeal of Land which he saith is the fourth part of an Acre seemâ— at first to gather that Obolata then must be half an Acre Denariata a whole Acre and by consequence Solidata twelve Acres and Librata twenty times twelve that is two hundred and forty Acres Yet this was but a conceit of his own For by having found the word used with reference to Rent as well as Land thus 20. libratas terrae vel reditûs he is forced to acknowledge that it must signifie so much Land as may yield twenty shillings per annum To which opinion Spelman also givâ— his assent But what quantity of Land this Librata terrae is cannot so easily be determined Cowell out of Skene tells us it contains four Oxgangs and every Oxgang thirteen Acres if so then it is fifty two Acres and twenty of them which make a Knights fee come to one thousand and forty Acres which somewhat exceeds the account here set down of six hundred and eighty out of the Red Book of the Exchequer But there is a great deal of more difference still as the account of the Knights fée is given by others In one Manuscript we read that A Yardland contains twenty four Acres four Yard-lands make one Hide that is ninety six Acres and five Hides make a Knights fee that is four hundred and eighty Acres the Relief whereof is a hundred Shillings Another Manuscript hath it thus Ten Acres according to ancient custom make one Fardel and four Fardels that is forty Acres make a Yardland and four Yardlands that is one hundred and sixty Acres make one Hide and four Hides that is six hundred and forty Acres make one Knights fee. A third reckons it otherwise that sixteen Yard-lands make a whole Knights fee which if we make a Yard-land to be twenty four Acres according to the first account comâ—s to three hundred eighty four Acres but if according to the second we take it for forty Acres it amounts to six hundred and forty Acres And saith he when they are taxed at six Shillings four Pence that is every of
the sixteen Yard-lands which make up the Fee at so much they make the summ of one hundred Shillings or five Pound which was the ancient Relief of a Knights fee. But this is a mistake either of the Author or the Citation it is six Shillings three Pence which makes that just summ from whence we learn also what proportion was observed by the Lord in setting and demanding of the Relief upon the next Heir after his Ancestor's decease Further in the Kings Writ as Glanvil cites it it is said that twelve Plough-lands make one Knights fee which allowing to a Plough-land one hundred twenty Acres amounts to one thousand four hundred and forty Acres In the main as to the value of a Knights fee 't is enough what Cowell tells us that it was so much inheritance as was sufficient yearly to maintain a Knight wiâ—h convenient Revenue which in Henry the Thirds dayes Camden sayes was fifteen Pounds and Sir Thomas Smith rates at forty But to confirm the account which our Author here gives us we find in the Statute for Knights in the first of Edward the Second that such as had twenty Pounds in Fee or for term of life per annum might be compelled to be Knights And as to the various measure of Land of which we have had a remarkable instance in this business before us Spelman hath given us good reasons for it since where the Land was good they might probably reckon the fewer Acres to a Yard-land a Hide a Knights fee c. and where it was barren they might allow the more Beside that some Lords who lett these Fees might be more bountiful and profuse others more parsimonious and severe to their dependents and that the services which were imposed upon these Fees might in some Mannors according to custom be lighter in others upon agreement and covenant more heavy All which might strangely diversifie the account as to the quantity or measure of those Lands which were to make up a Knights fee. CHAP. XVIII Pag. 91. lin 4. A little Habergeon or Coat of 〈◊〉 In Latin Halbergellum a diminutive from the Saxon Halsberg armour for the Neck and Breast It is written also Haubergellum and Hambergellum They mistake themselves who translate it a Halbert in French Halebarde anoffensive Weapon for a Coat of Mail which is armour of defence in French Haubert or Hauberk whence Fée de Hauberk which we have already explained somewhere before Lin. 5. A Capelet of Iron A little Iron or Steel Cap instead of a Head-piece or Helmet which the better sort wore For by comparing this with the two fore-going Sections we find they were to have a difference of Arms according to their different Quality and Estate Lin. 7. A Wambais Wambasium or Wambasia so called I suppose because it reached over the belly or womb was a Jacket or Coat of defence used in stead of the Coat of Mail perhaps like unto our Buff-coats though probably not of Leather only but of any other material as the Wearer should think fit Pag. 92. lin 6. Timber for the building of Ships In Latin here Mairemia written also Meremia and Meremium and Maremium and Muremium from the French Meresme Timber to build with Lin. 14. Stercutius Saturn so called as being the first Inventer of dunging Land Lin. 28. Vnder the title of Free-men Here the Author himself hath in the Latin added a Marginal Note which I thought fit to remove to this place He saith that among the ancient Germans the Alway free the Middlemost free and the Lowermost free were as it were the Classes and several Ranks of the lesser Nobles i. e. of their Gentry For the title of Nobless as also in our Vulgar Language was given only to Princes and Great Men. And for this he quotes Munster Cosmog lib. 3. CHAP. XIX Pag. 93. l. 32. In the borders of the Carnutes A people of France whose Countrey is called Chartrain and their chief City Chartres about eighteen Leagues from Paris Eastward That Town eight Miles off called Dreux in Latin Drocum was so named from the Druids who dwelt there at first and likely enough afterward often resorted thither P. 94. l. 37. Of the three Estates the King the Lords and the Commons There are indeed three Orders or Estates acknowledged by true Divines and sound Lawyers in the English Government to wit the Lords Spiritual the Lords Temporal and the Commons of England But the fundamental mistake of our Learned Author is that he hath joyned those two sorts of Lords whose very character shews them to be of a distinct species though as to the publick Welfare and the Kings Service they ought to be of one and the same interest into one Estate and to make up the third Estate thought himself obliged to bring in the King himself for one who is Lord paramount over all the three and by this means ipsam Majestatem in ordinem redigere I call this a fundamental mistake as a most probable ground of Rebellion as it was in the Barons Wars and in our late Civil Broils inasmuch as if the King make one of the three Estates as they fancy he doth and hath as they do from thence conclude he hath no more but a co-ordinate power with both or either of the other two Estates that then it is lawful for both or either of those Estates in case of publick grievances to quarrel the King their co-ordinate if he will not give way to their redress that is if he will not consent to do what they would have him to do and upon his refusal of so doing to raise War against him to sequester and murder his Loyal adherents to destroy his Royal Person and finally if he escape the hazards of Battel when they get him into their hands to bring him to account for a pretended male administration and the violation of a trust which God and not the People put into his hands and having gone so far that they may if possible secure themselves to put the Monarch to death and to extirpate Monarchy it self This was the ground and method of our late Republican policy and practice Wherein yet they did not foresee what examples they set against themselves supposing this Doctrine of the three Estates in their sense to be true and that King Lords and Commons had an equality of trust and parity of power that the same outrage which the Rump-Commoners acted against the King to the destroying of him and against the Lords to the outing of them and voting them useless and dangerous as to their share of Government might one time or other be more plausibly promoted and more effectually put in execution by one or both of the other two Estates with the help and assistance of great numbers of the Commoners as there ever will be in such National divisions against themselves and all men whatever of such pernicious and destructive principles No. This false Doctrine I hope will
were very unequal and incommodious I thought it much more convenient for thy ease and profit to distribute them into Chapters together with the Argument or Contents of each Chapter at the beginning and withal that no one may complain that I have injured the Author by altering his Method I have left his Sections also marked with a Numeral Note 1 2 3 c. on the side of the inner or outer Margin FINIS ERRATA IN the Translator's Preface p. 4. l. 15. r. and hath that of crabbed in it beside and as to the method is so intricate Pag. 11. l. 2. r. and strifes p. 14. l. 50. r. Pieces p. 17. l. 41. r. Borderers p. 20. l. 16. for facts r. toils p. 21. l. 24. r. and Money p. 30. l. 16 r. Lazzes p. 31. l. 28. r. and Breeding p. 34. l. 14. r. peccatum l. 40. r. or his eyes p. 35. l. 2. r. Quid p. 43. l. 7. r. sorry old Verse p. 49. l. 48. r. too truly p. 56. l. 6. r. Warden p. 61. l. 13. r. Vulgar l. 21. r. bestowing her p. 62. l. 25. r. misdemeanour p. 65. l. 11. r. add p. 72. l. 43. r. seasonably p. 74. l. 5. r. Glocester Whom p. 85. l. 14. r. strict p. 86. l. 26. r. that in the p. 87. l. 5. r. What. Of him p. 91. l. 17. r. him p. 92. l. 32. r. Cattle p. 96. l. 34. r. turned p. 108. l. 33. r. retired p. 110. l. 8. r. Neptune as p. 112. l. 34. r. unknown p. 113. l. 34. r. Inlagh p. 116. l. 18. r. three things p. 117. l. 47. r. found p. 122. l. 6. r. arrested p. 123. l. 9. r. quilleted FINIS ENGLAND'S EPINOMIS BY JOHN SELDEN Esquire LONDON Printed for Thomas Basset at the George in Fleetstreet and Richard Chiswell at the Rose and Crown in S. Paul's Church-Yard MDCLXXXIII TO THE READER THIS Appendix or Addition to what had been formerly collected by others of our ancient Constitutions needs no farther Recommendation than the great Name and Learning of the Author lt was an Essay of his younger years and one of the fruits of his first and earliest Inquiries The Reader will here meet with the true Original as well under the Roman as the Saxon and Norman Governments of several of our Laws which are now in force and the Mistakes in Polydore and others discovered The famous Constitutions of Clarendon so much opposed by Becket faithfully recited and purged from the Errors which had crept into those Copies formerly published An account of the Magna Charta of King John and the differences between it and that granted by his Son H. 3. which we have in the Fore-front of our Printed Statutes A Correction of our printed Charta de Foresta with other Curious and Judicious Remarks upon these Subjects not heretofore extant which it is not doubted will for their own sake as well as their Authors find a welcome Reception from all knowing Persons especially from the Learned Professors of our English Laws THE CONTENTS CHAP. I. FRom the first supposed Inhabitants and Britains until Julius Caesar Page 1. CHAP. II. Out of Roman Histories from Julius Caesar to the period of Rome's Empire in this Land p. 4 CHAP. III. The Saxons Customs and Laws except what is in Lambard's Archaeonomy during their Government until the Normans p. 8 CHAP. IV. William the First But none of that which under Title of his Laws is in Lambard p. 12 CHAP. V. What was received under William le Rous p. 15 CHAP. IV. Henry Beauclerc restored and invented common Liberties p. 16 CHAP. VII Stephen of Blois p. 19 CHAP. VIII Henry Fitz-L'empres and his Clarendon Constitutions restored to themselves and purged from the faults wherewith they have been published p. 20 Assisae Henrici Regis factae apud Clarendon renovatae apud Northamtune p. 26 CHAP. IX Richard Ceur de Lion p. 29 Forma Procedendi in Placitis Coronae Regis ibid. Capitula Placitorum Coronae Regis ibid. Capitula Placitorum Coronae D. Regis p. 32 Haec est assisa D. Regis haec sunt praecepta de Forestis suis in Anglia facta per assensum concilium Archiepisc. Episc. Abbat Comit. Bar. Militum totius Regni p. 33 CHAP. X. King John and his Grand Charter p. 35 Consuetudines Scaccarii super Debitis Domini Regis inquirendis ibid. England's Epinomis CHAP. I. From the first supposed Inhabitants and Britains until Julius Caesar. IF all published Authority were a legitimate Brother to Truth 's certainty then could I affirm that their common Father old Time once saw a Samothean race in this Isle of Britany The Italian-bred Chaldee Berosus mentions one Samothes Brother to Gomer and Tubal of Japhet's line to be Author of the Celtes which inhabited with other parts of Europe that of Gaule which we now call la France and his Commentator Annius de Viterbo thus addeth Samothes fuit frater Gomeri atque Tubulis ex Japete patre à quo primùm Britones inde Galli Samothei dicti fuerunt praecipuè Philosophi Theologi Sectutores ejus These Samotheans by the testimony of Aristotle and Secion divini atque humani juris peritissimi ob id religioni deditissimi proptereà Samothei rather Semnothei appellati under the providence of these and their race was the Law-government of the State until that Trojan celebrated branch Brute entred the Isle who composed a Book intituled Leges Britonum collected out of the Trojan Laws But to ruminate a little upon that Saturnian Age and omit all Shadow-fights touching controverted Brute his supposed existence and fortunes it may be not without good reason doubted whether any such Laws of Troy were out of which others might be extracted Nor will they peradventure upon examination excepted only some Customs of Religious Rites appear more certain in particular or more true in general than those of Aristophanes his Nephelococcygia Times so near the Golden Age when as Nec signare quidem aut partiri limite campum Nec cuiquam as Seneca hath it aut animus aut injuria aut causa have left few notes of expresly binding Laws the main Government consisting in the arbitrary disposition of those in whom being chosen as Princes for their eminency in Justice and consequently in all other Vertues as Deioces was of the Medes it was rather an Office thâ—n a Title of Dignity to undergo the style of Monarch And although it be reported in Plato That Talus 'twixt whom and Rhadamanth the Cretique Justice was by Minos Jupiters own Son then King of Crete divided thrice every year did make his Circuit for maintenance of such Laws as were established and in Brazen Tables registred one of which somewhat to particularize was an Edict against Drunkenness in merry meetings so that Constitutions in written Tables may thus derive their pedigree from the most ancient remembrance of Grecian discoveries Ceres and her Thesmophoria with
Regis faciant inde fieri recognitionem per XII legales homines quatem seisinam defunctus inde habuit die qua ficit vivus mortuus This is the very Mortdancester Et sicut recognitum fuerit ita haeredibus ejus restituant si quis contrà hoc fecerit inde attaintus fuerit remaneat in misericordiâ Regis XXXII Justitiae Domini Regis faciant fieri recognitionem de disseisinis factis super assisam à tempore quo D. Rex venit in Angliam proximo post pacem factam inter ipsum Regem filium suum XXXIII Justitiae capiant fidelitates D. Regis infra Claus. Pasch. ad ultimum infrà Claus. Pentecost ab omnibus videlicet Comitibus Baronibus Militibus liberè tenentibus etiam rusticis qui in regno manere voluerint qui facere â—oluerit fidelitatem tanquam inimicus D. Regis capiatur XXXIV Habent etiam Justitiae praecipere quod omnes illi qui nondum fecerunt homagium ligeantiam D. Regi quod ad diem quem eis nominabunt veniant faciant Regi Homagium ligeantiam sicut ligeo Domino XXXV Justitiae faciant omnes Justitias rectitudines spectantes ad D. Regem ad coronam suam per breve Domini Regis vel illorum qui in loco ejus erunt de feodo dimiâ—û milit infrà If the account of a Knights fee be by the annual value then confidently according to the quadruple proportion of the known Relief you may affirm it by xx l. Lands and so likewise by comparison with Soccage payment upon the Stat. of West 1. for aid A fair Fitz chivalier or a File marryer but by a calculation prefixed to the red Book of the Exchequer DCLXXX Acres make exactly the Summe nisi tam grandis sit querela quod non possit deduci sine D. Rege vel talis quam Justitiae ei reponent pro dubitatione suâ vel ad illos qui in loco ejus erunt intendant tamen pro posse suo ad commodum D. Regis faciendum XXXVI Faciant assisam de latronibus iniquis malefactoribus terrae quae assisa est per concilium Regis filii sui hominum suorum per quos ituri sunt Comitatus XXXVII Justitiae provideant quod castella diruta prorsus diruantur diruenda benè prosternantur Et nisi hoc fecerint D. Rex Judicium Curiae suae de eis habere voluerit sicut de contemptoribus praecepti sui XXXVIII Justitiae inquirant de Escaetis de Ecclesiis de terris de foeminis quae sunt de donatione D. Regis XXXIX Ballivi D. Regis respondeant ad Scaccarium tam de assiso redditu quam de omnibus perquisitionibus suis quas faciunt in balliviis suis exceptis illis quae pertinent ad vicecomitatum XL. Justitiae inquirant de custodiis castellorum qui quantum ubi eas debeant postea mandent D. Regi XLI Latro ex quo capitur Vicecomiti tradatur ad custodiendum si Vicecomes absens fuerit ducatur ad proximum Castellanum ipse illum custodiat donec illum liberet Vicecomiti XLII Justitiae faciant quaerere per consuetudinem terrae illos qui à regno recesserunt nisi redire voluerint infra terminum nominatum stare ad rectum in Curiâ Regis postea ut lagentur nomina ut lagorum afferantur ad Pascha ad Fest. S. Mich. ad Scaccarium exinde mittantur D. Regi While thus the King made provident Order for Lay-business Hugo à Petra Leonis the Pope's Legate in England laboured for dilaâ—ation of Church to whom was granted by the King XLIII Quod de caetero Clericus Matthew Paris his report non trahatur ante Judicem secularem personaliter pro aliquo crimine vel transgressione nisi pro forestâ laico feudo unde Regi vel alii D. Seculari laicum debetur servitium XLIV Vt Archiepiscopatus Episcopatus vel Abbatiae non teneantur in manu Regis ultra annum nisi pro causâ evidente vel necessitate urgente XLV Vt interfectores Clericorum convicti vel confessi coram Justiciario regni praesente Episcopo puniantur XLVI Quod Clerici duellum facere non cogantur XLVII Statuit apud WOODSTOCK quod quicunque forisfecerit ei de forestâ suâ semel de venatione suâ de ipso salvi plegii capiantur si iterum forisfecerit similitèr capiantur de ipso salvi plegii si autem tertiò idem forisfecerit nulli plegii capiantur sed proprium corpus forisfactoris which concludes what of his Laws common Histories afford CHAP. IX Richard Ceur de Lion THIS Henry's Successor was the stout Richard Ceur de Lion Himself in Person attending the Eastern Wars Division by his Commission was made for maintaining the Laws and Customes of the Kingdom of the whole Government 'twixt Hugh of Pusar Bishop of Durham and William Bishop of Ely Lord Chancellor The stream of all howsoever there was an association of Hugh Bardulph and William Briwere was carried as the Prelates pleased until their ambitious insolency made a period to their too great authority After his return Justices in Eyre were sent into every County secundùm subscriptorum formam capitulorum saith Hoveden processerunt in justiciis exequendis Forma Procedendi in Placitis Coronae Regis I. INprimis eligendi sunt IV. milites de toto Comitatu qui per Sacramentum suum eligant II. legales milites de quolibet hundredo vel Wapentacco Et illi II. eligant super sacramentum suum X. milites de singulis Hundredis vel Wapentaccisâ— vel si milites defuerint legales liberos homines ità quòd illi XII insimul respondeant de omnibus capitulis de toto Hundredo vel Wapentacco Capitula Placitorum Coronae Regis II. DE placitis Coronae novis veteribus omnibus quae nondum sinâ— finita coram Justiciariis D. Regis III. Item de omnibus recognitionibus omnibus placitis quae summonita sunt coram Justiciariis per breve Regis vel capitalis Justitiae vel à capitali Curiâ Regis coram eis missa IV. Item de Escaëtis quae sunt quae fuerunt postquam Rex arripuit iter versus terram Jerusalem quae fuerunt tunc in manu Regis sunt modò in manu ejus vel non de omnibus Escaëtis Domini Regis si à manu sua sint remotae quomodò per quem in cujus manus devenerunt qualitèr qui exitus inde habuerit quos quid valuerint quid modò valeant si aliqua eschaëta sit quae ad D. R. pertineat quae in manu ejus non sit V. Item de Ecclesiis quae sunt de Donatione D. Regis VI. Item de custodiis puerorum quae ad D. Regem pertinent VII Item de malefactoribus eorum receptoribus
CHAP. III. In whom after the time of King John BUt in that Charter of Liberties both for the Church and Laity made to the Baronage of England in the seventeenth of King John in Reningmead an express Ordinance is That if any Free-man dyed intestate his Chattels were to be disposed of by the hands of his next of kin by the view of the Church that is direction and advice being thereto given by the Ordinary as I understand saving to all Creditors their debts the words of it were Si aliquis liber homo intestatus decesserit Catalla sua per manus propinquorum parentum amicorum suorum per visum Ecclesiae distribuantur salvis unicuique debitis quae defunctùs eis debebat That Charter of King John is almost the same syllables with the common one that we now use by the name of the Grand Charter of 9 H. 3. exemplified by the Kings Patent of 28 E. 1. But this of Intestates and two or three other Chapters for the Subjects Liberty are more in that of King John's than is found in the Exemplification of 28 E. 1. However Matthew Paris and Roger of Wendover when they speak of H. 3. granting it so refer their Readers to this of King John that they tell us that that of H. 3. was the self same in every particular and therefore omit the repetition of it And indeed although in the common Printed Magna Charta of H. 3. and in the Roll also of 28 Ed. 1. in the Tower where the Exemplification is this Ordinance touching Intestates be wanting yet in very many of the ancientest Manuscripts of the old Statutes that of H. 3. hath the same words as we have here transcribed it from King John's and that in the same place of his Charter as that in King John's that is between the eighteenth Chapter Si quis teneus c. and the nineteenth Nullus Constabularius c. And it is to be understood that the greatest Prelates of the Clergy of that time as Canterbury London Winchester Pandulphus the Popes Nuncto the Master of the Temple and divers other Bishops were on the Kings part when that of King John was granted And it is probable enough that when they saw that a Charter of Liberties must of necessity be granted to the Baronage they so wrought also that they might insert this one for the advantage of their Episcopal Government And they had good colour to think and perswade that some such thing was fit for them in regard it was now clearly taken that some distribution was to be made pro anima intestati the care of souls being the chiefest part of their common pretences for increase of their power and greatness And hence I suppose it soon came to pass that the next of kin had the power of disposition committed by the Ordinaries and that in Letters or otherwise by vertue of that per visum Ecclesiae which was I think the textual ground of right of committing of Administration by the Clergy This of King John's being iterated in Henry the Thirds Charter however omitted in the Exemplification was it seems that provision spoken of in Cardinal Othobon's Legatins Proinde super bonis ab intestato decedentium so are the words provisionem quae olim à Praelatis Regni Angliae cum approbatione Regis Baronum dicitur emanasse firmiter approbantes districtius inhibemus ne Prelati vel alii quicunque bona intestatorum quocunque modo recipiant vel occupent contra provisionem praemissam What provision is it more likely that this was than that of the Grand Charter both of King John and H. 3. and the words à Praelatis dicitur emanasse justifies what we have conjectured of the purpose of the Prelates when they saw they could not but yield with the King to an establishment of Laws by that Charter made indeed in a Parliament of that age The same I suppose that which is meant in the Constitution of Arch-bishop Stafford where it is taken for granted that the Churches power of disposition of Intestates goods pro salute animarum in pios usus was a thing consensu Regio magnatum Regni Angl. tanquam pro jure Ecclesiasticáque libertate ab olim ordinatum c. Where Linwood modestly confesses that he could not find in what Kings time this Ordinance was made But Johannes de Athona upon that of Othobon though he rightly call that provision Provisio Parliamentalis yet most ignorantly and ridiculously tells us that the provision there understood is the Statute of Westminster 2. Cap. 21. cum post mortem which he makes also to have I know not what reference to the Statute of Glocester But this slipt from him either in a dream or through the utmost neglect of those infallible characters of truth that the denoting of times affords us for that Legatin of Othobon was made in London in 53 H. 3. and at such time as that Provision was yet extant in the Magna Charta used by our Lawyers But the Statutes of Westminster the second and of Glocester were under E. 1. the one in the sixth the other in the thirteenth of him how then could Othobon think of it in his Legatin or could John de Athona have thought so if he had allowed the Title of his Gloss which supposes in the point that the Constitutions of Othobon were published in the year 1248. which had it been in 1268. had agreed with truth but doubtless the Numeral Letters of MCCLXVIII were transposed into MCCXLVIII and thence only that Error CHAP. IV. How that so granted by King John's Charter in Parliament hath continued in practice AFter that Law of the seventeenth of K. John it seems the next of kin disposed of Intestates Goods by the testimony and direction of the Church for so per visum denotes as we see in per visum proborum legalium hominum in Writs of Summons and the like but I have not seen any practice of it testified in King John's time And under H. 3. however it were omitted in his Charter at the Exemplification the same visus Ecclesiae continued so sayes Bracton that then lived and was a Judge of that time Si liber homo intestatus subito decesserit dominus suus nil intromittat de bonis defuncti nisi de hoc tantum quod ad ipsum pertineret sc. quod habeat suum Heriott sed ad Ecclesiam amicos pertinebit executio bonorum Yet it seems also that notwithstanding the right of the Church thus ordained and the succession of next of kin so included in the Ordinance both the Lords in some places according to their former right still usurp some power over the disposition of Intestates Goods against the will of the Ordinaries and on the other side also the Ordinaries instead of giving direction for a true disposition of such Goods get possession of them and commit