subjoyn a Surplage out of Conradus Celtes He is speaking of some ancient Images of stone which he had seen in a certain Abby at the foot of a Hill that bears Pines commonly called Vichtelberg in the Neighbourhood of Voitland which he conceives did by way of Statue represent the Druids They were six in number says he at the door of the Temple niched into the Wall of seven foot a piece in height bare-footed having their Heads uncovered with a Greekish Cloak on and that Hooded and a Satchel or scrip by their side their Beard hanging down to their very Privities and forked or parted in two about their Nostrils in their Hands a Book and a Staff like that of Diogenes with a severe Forehead and a melancholy Brow stooping down with their Head and fastening their Eyes on the ground Which description how it agrees with those things which are recounted by Caesar and Strabo concerning the Golden adornments the dyed and coloured Vestures the Bracelets the shaved Cheeks and Chin of the Britans and other things of the like kind let them who are concerned look to that 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 BUt forasmuch as Britanny gave the beginnings and improvements to the discipline of these Druids and both Britans and Gauls had their Government Customs Language Rites sacred and profane every thing almost the same or much alike as Mr. William Camden hath some while since most learnedly made out O Mr. Camden with what respect shall I name thee In freta dum fluvii current dum montibus umbrae Lustrabunt convexa ac dum Cynosura Britannos Semper honos noménque tuum laudesque manebunt Which in hearty English makes this acknowledgment of his worth As long as Rivers run into the Main Whilst Shades on Mountains shall the Welkin hide And Britans shall behold the Northern Wain Thy Honour Name and Praise shall still abide And it is evident that a great part of Britany was once under the Government of Divitiacus King of the Soissons a People of France Therefore these following Remarks I thought not amiss to set down as British whether they were imparted to this Isle by the ancient Gauls by reason of its nearness or whether the Gauls owed them to the Britans 9. They do not suffer their Children to come to them in open sight they are Caesar's words but when they are grown up to that Age that they may be able to undergo Military duty and to serve in War 10. The men what mony they receive with their Wives upon account of portion they lay down so much out of their own Estate upon an appraisement made to make a joint stock with the portion There is an account jointly kept of all this mony and the profits of it are reserved the longer liver is to have both shares with the profits of the former times 11. The men have power of life and death over their Wives as well as over their Children Hereupon Bodin charges Justinian with a falshood for affirming that other people had not the same Fatherly power as the Romans had 12. When a Master of a Family who is of higher birth and quality dies his Kindred meet together that if the manner of his death were suspicious they may by torture as Servants were used examine the Wife concerning the business and if she be found guilty they torment her miserably and burn her alive To this story that most excellent Lawyer and worthy Lord Chief Justice of the Common Pleas Sir Edward Coke refers the antiquity of that Law which we at this day use of devoting to the flames those wicked Baggages who stain their hands with the nefarious murder of their Husbands 13. Those Servants and Dependents who were known to have been beloved by their Master in his life time were when the Funeral Rites were prepared burnt with him for company 14. It was ordered that if any one by flying report or common fame had heard any thing from the borders that might concern the Common-wealth he was to make it known to some Magistrate and not impart it to any body else 15. The Magistrates conceal those things they think fit and what they judge may be of use to the Publick they discover to the populace 16. No body has leave to speak of the Common-wealth or of publick affairs but in Council or Parliament 17. They came armed into the Council or to Parliament So the custom of the Nation was saith Livy and Tacitus the like of the Germans CHAP. XII Women admitted to publick debates A large commendation of the Sex together with a â—indication of their fitness to govern against the Salick Law made out by several examples of most Nations 18. IT was grown a custom amongst them we meet with this in Plutarch that they treated of Peace and War with their women in company and if any questions arose betwixâ— them and their Allies they left it to them to determine The same custom the Cecropians that is the people of Athens once had as Austin relates it out of Varro before the women by majority of Vote carried it for Minerva against Neptune Away with you Simonides and whosoever you are scoundrels that unworthily abuse the finer and brighter Sex Good Angerona thou Goddess of Silence wash nay stop Eubulus his foul mouth who denies there were ever any good women more than two in the world to wit chast Penelope and Alcestis who died in her Husbands stead How large an honour was paid to the counsels the prudence the virtue of the Gaulish Ladies in their chiefest affairs and not without their desert How much honour even at this day is yearly paid at Orleance on the eighth of May to the Statue of Joan Darcy of Lorain that stands on the bank of the River Loir who obliged her dear Country with a Victory wonderfully got when all had been lost To pass by other arguments Antiquity holds this Sex to be equally divine as the Male. In Heaven Sea Earth together with Jupiter Neptune Pluto who were the Gods that shared the world there governed Juno Salacia Proserpina their Goddesses Marry in Varro's three fold Divinity there are more she-Gods than he-Gods Ipsa quoque cultu est nomine foemina Virtus Uirtue her self howe're it came Is Female both in Dress and Name But I do not go to act over Caius Agrippa's part by declaiming upon Female excellency The thing it self speaks more than I can and the subject is its own best Orator I must add one thing which Cornelius Tacitus tells us of the Britans that
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
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 53. COncerning Appeals if at any time there shall be occasion for them they are to proceed from the Arch-Deacon to the Bishop and from the Bishop to the Arch-Bishop and if the Arch-Bishop shall be wanting in doing of Justice they must come in the last place to our Lord the King that by his precept or order the Controversie may be determined in the Arch-Bishops Court so as that it ought not to proceed any further without the Kings assent This Law long since the famous Sir Edward Coke made use of to assert and maintain the Kings Ecclesiastical Jurisdiction as a thing not of late taken up by him but anciently to him belonging 54. If a Claim or Suit shall arise betwixt a Clergyman and a Lay-man or betwixt a Layman and a Clergyman concerning any Tenement which the Clergyman would draw to the Church and the Lay-man to a Lay-fee it shall by the recognizance of twelve legal men upon the consideration and advisement of the Lord Chief Justice be determined whether the Tenement do appertain to Alms i. e. to the Church or to Lay-Estate before the Kings own Justice And if it shall be recognized or adjudged to appertain to Alms it shall be a Plea in the Ecclesiastical Court But if to a Lay-fee unless they both avow or avouch the Tenement from the same Bishop or Baron it shall be a Plea in the Kings Court But if each of them shall for that fee avouch the same Bishop or Baron it shall be a Plea in that Bishops or Barons Court so that he who was formerly seised shall not by reason of the Recognizance made lose the Seisin till it shall by Plea be deraigned 55. He who shall be of a City or a Castle or a Burrough or a Manner of the Kings Domain if he shall be cited by an Arch-Deacon or a Bishop upon any misdemeanour upon which he ought to make answer to him and refuse to satisfie upon their summons or citations they may well and lawfully put him under an Interdict or Prohibition but he ought not to be Excommunicated By the way seasonably remark out of the Pontificial Law that that Excommunication they call the greater removes a man and turns him out from the very Communion and Fellowship of the Faithful and that an Interdict as the lesser Excommunication separates a man and lays him aside only forbidding him to be present at Divine Offices and the use of the Sacraments I say he ought not to be Excommunicated before that the Kings Chief Justice of that Village or City be spoken with that he may order him to come to satisfaction And if the Kings Justice fail therein he shall be at the Kings mercy and thereupon or after that the Bishop may punish him upon his impleadment with the Justice of the Church 56. Arch-Bishops Bâ—shops and all Persons whatsoever of the Kingdom who hold of the King in capite and have their possessions from our Lord the King in nature of a Barony and thereupon make answer to the Kings Justices and Officers and perform all Rights and Customs due to the King as other Barons do they ought to be present at the Tryals of the Court of our Lord the King with his Barons until the losing of Limbs or death be adjudged to the party tried 57. When an Arch-Bishoprick or Bishoprick or Abbacy or Priory of the Kings Domain shall be void it ought to be in his hand and thereof shall he receive all the profits and issues as belonging to his Domain And when the Church is to be provided for our Lord the King is to order some choice persons of the Church and the Election is to be made in the Kings own Chappel by the assent of our Lord the King and by the advice of those persons of the Kingdom whom he shall call for that purpose and there shall the Person Elect saving his order before he be Consecrated do Homage and Fealty to our Lord the King as to his Liege Lord for his life and limbs and for his Earthly Honour 58. If any one of the Nobles or Peers do deforce to do Justice to an Arch-Bishop Bishop or Arch-Deacon for themselves or those that belong to them the King in this case is to do justice 59. If peradventure any one shall deforce to the Lord the King his Right the Arch-Bishop Bishop and Arch-Deacon ought then in that case to do justice or to take a course with him that he may give the King satisfaction 60. The Chattels of those who are in the Kings forfeit let not the Church or Church-yard detain or keep back against the justice of the King because they are the Kings own whether they shall be found in Churches or without 61. Pleas of debts which are owing either with security given or without giving security let them be in the Kings Court. 62. The Sons of Yeomen or Country people ought not to be ordained or go into holy Orders without the assent of the Lord of whose Land they are known to have been born 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 I Confess there is a great difference between these Laws and the Statutes of Clarendon put forth in the larger History of Matthew Paris I mean those mangled ones and in some places what through great gaps of sence disjointings of Sentences and misplacings of words much depraved ones whose misfortune I ascribe to the carelesness of Transcribers But the latter end of a Manuscript Book commonly called Quadrilegus wherein the Life of Thomas Arch-Bishop of Canterbury is out of four Writers to wit Hubert of Boseham John of Salisbury William of Canterbury and Alan Abbot of Tewksbury digested into one Volume hath holp us to them amended as you may see here and set to rights It is none of our business to touch upon those quarrels which arose upon the account of these Laws betwixt the King and Thomas of Canterbury Our Historians do sufficiently declare them In the mean time may our Poet of Glocester have leave to return upon the Stage and may his Verses written in ancient Dialect comprising the matter which we have in hand be favourably entertained No man ne might thenche the love that there was Bitwene the K. H. and the good man S. Thomas The diuel had enui therto and fed bitwen them feu Alas alas thulke stond vor all to well it greu Uor there had ere ibe
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
and in looking behind me to our Grand-sires better times Which to say truth they who do too much slight Ardua dum mâ—tuunt amittunt verâ— viai that is Whilst lâ—fty passes they do fear through sloth They lose the certain tracks and paths of troth And so may the Muses alway favour me they are such things as are Anteiqua sepolta vetusta Quai faciunt mores veterésque novosque tenentem Moltarum veterum Legum Divômque Hominumque Prudentem as saith another old Latin Poet that is such storiâ—â— as are Antique buried in rubbish old and musty Which make one verst in customs old and new And of Laws Gods and Men giving a view Render the careful Student skill'd and trusty Some spare hours have been spent by me in reading over Historians Chronologers Antiquaries Foreigners and our own Countrey-men those of Ancient date and the more polite of the Modern sort those especially who seem'd to make out the quickest course to that Goal and design I spoke of I have carefully cull'd out whatsoever I met with that lookt like the Orders and Decisions of Praetors or Lord Chief Justices and whatsoever concerns the Civil or Prophane Law Prophane I call that which is not held by the Religion of the Church as Sextus Pompeius hath taught me I did judge that there were a great many things in those Writers worth the knowing and which might deserve to be digested into a kind of Volume according to order of Chronology I did in the first place advise and took that special order with my self that as to this undertaking I might with the greater ease have my Attendants ready at hand to wait upon my Studies I went about to give sâ—me closure and coment such as it is i. e. some method and connexion to the scattered and disjointed bulk and I brought it to a conclusion and assoon as it came into my mind to publish it I endeavoured according to that meanness which it appears in to finish it that I may make use of a Mathematick term with its Complement I have set the model and frame upon a sure account not upon mine own credit neither who am too apt to take on trust things suspected and in a compendious way I have writ my self compendiously and succinctly I have transcribed out of others faithfully I do on set purpose vouch the credit I go upon to be none of mine but the Authors I have taken out of that I may not be accused of false dealing by unskilful or careless Readers I have applyed my self not only to the meaning of the Writers or to their historical account but even to the very words and syllables which they spoke and have inserted them printed in a different character those I confess unless it be from them of the middle age many times sufficiently barbarous that miserably want polishing such as Critiâ—ks cannot away with and do very well agree with the Records and Reports of Law which we converse with However I would not have thee disdain in the mean time brimful and wholsome draughts of liquor because the Bowl was not made in a Potters shop of Colias a place in Athens or in cold Winter to slight a garment which is not made of Attick Wooll as Plutarch hath admonished the hearers of Philosophy Let young Ladies speak finically with their golden Flower-amours and let them who have store and leave at once court the graces of words and beauties of expression 'T is true the care of exact speaking is a thing befits the Muses yet how the most abstruse Mysteries even of the highest Urania of Divinity it self are laid open without it the Thomists the Scotists and what other Sects and Parties of School-men there are know well enough And there are some others also that think they know I mean the inquirers into Heavenly Calculations Astrologers and the Weather-wise-men Almanack-makers who in good deed for the most part rely too much upon the trifling stories of their Masters Now they and not without good reason have preferred the Arab Writers barbarously translated and slovenly Bonatus before Julius Firmicus and modern Pontanus as spruce as they are These two may rather be termed Grammarians than Astrologers Nor do Aristotle's crabbed Lectures of natural Philosophy discourage Interpreters or procure to themselves any discredit by reason of the affected obscurity of speech they are delivered in and as to neatness of Poetry Apollo himself hath been out-done by Sappho Homer Hesiod Though the Matter doth often surpass the Workmanship yet who is there is so rigid or so fond a Censurer as to disparage and debase the Matter upon the account of the Workmanship Which I would not have be said only of those passages which I have brought into this Piece out of those fore-mentioned Authors but also of the whole Body of our Common-Law I have I hope not unluckily begun with the very first Inhabitants of this Isle as far as we can come to the knowledge of them Those Authors whom I have followed in the original of Story I have as it was meet set down and remark'd adding the Judgement and Censure of the Learned Afterward besides Caesar and Tacitus there are but few that afford us any help and that but in few things too For the name of Brittany was known but of late to the Greeks but of late to the Romans and the Britans were truly for a long while divided from all the world besides But among Foreigners the latter Ages have enquired after them I speak of Strabo Pliny Ptolomy others and a certain Writer of Asia Marcianus Heracleotes not yâ—t that I know of turned into Latin saith thus Albion the Brittish Isle hath in it Thirty Three Nations Fifty Nine remarkable Cities and then he subjoyns other things concerning the number of Rivers Promontories Havens and Creeks or Bays I have stretched out this Piece to the death of King Henry the Son of Mawd the Empress by Jeoffrey the Count of Anger 's in France In whose time or near thereabout are the first beginnings of our Law as our Lawyers now account There come in by the way Richard called Coeur de Lion and King John but there is scarce any thing in that interim to our purpose I have on purpose passed by Mr. Lambard's Archaeonomia or Antiquites of Law without medling with it at all only when some obvious accasion did sometimes suggest it for the explaining of what is set down by us I have divided the whole into two Books the first closes with the Saxons the second begins with the Norman Conquest the most famous Aera or Date of the English Government in the reckonings of time But however to refer the original of our English Laws to that Conquest as some make bold to do is a huge mistake forasmuch as they are of a far more ancient Date For it is a remark amongst Statesmen That new acquired Empires do run some hazard by attempting to
Verses which Joseph Scaliger has rescued out of its rust and mouldiness has it Mars pater nostrae gentis tutela Quirine Et magno positus Caesar uterque polo Cernitis ignotos Latiâ sub Lege Britannos c. that is in English Sire Mars and Guardian of our State Quirinus hight after thy fate And Caesars both plac'd near the Pole With your bright Stars ye do behold And th' unknown Britans aw T' observe the Roman Law The stately Seraglio or Building for the Emperours Women at Venta Belgarum a City at this day called Winchester and other things of that kind I let pass In the time of the Emperours Vespasian Titus and Domitian Julius Agricola Tacitus his Wives Father was Lord Deputy Lieutenant here He encouraged the Barbarous people to Civil fashions insomuch that they took the Roman habit for an honour and almost every body wore a Gown and as Juvenal has it in his Satyr Gallia Causidicos docuit facunda Britannos The British Lawyers learnt of yore From the well-spoken French their lore T'imply hereafter we should sée Our Laws themselves in French would be 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 IN Commodus the Emperours time the Light of the Gospel shone afresh upon the Britans Lucius the first King of the Christians for the Romans as in other places so in Britany made use of even Kings for their instruments of slavery by the procurement of Fugatius and Damianus did happily receive from Pope Eleutherius the Seal of Regeneration that is Baptism and the Sacred Laws of eternal salvation He had a mind also to have the Civil Laws thence and desired them too Ovid long since had so prophesied of Rome Juráque ab hâc terrâ caetera terra petet that is And from this Countrey every other Land Their Laws shall fetch and be at her command Now Eleutherius wrote him this answer You have desired of us that the Roman and Caesarean Laws may be sent over to you that you may as you desire use them in your Kingdom of Britanny The Roman and Caesarean Laws we may at all times disprove of but by no means the Law of God For you have lately through Divine mercy taken upon you in the Kingdom of Britanny the Law and Faith of Christ you have with you in the Kingdom both pages of Holy Writ to wit the Old and New Testament Out of them in the name and by the favour of God with the advice of your Kingdom take your Law and by it through Gods permission you may govern your Kingdom of Britanny Now you for your part are Gods Vicegerent in your Kingdom Howsoever by injury of time the memory of this great and Illustrious Prince King Lucy hath been imbezill'd and smuggled this upon the credit of the ancient Writers appears plainly that the pitiful fopperies of the Pagans and the Worship of their Idol-Devils did begin to flag and within a short time would have given place to the Worship of the true God and that Three Arch-Flamens and Twenty Eight Flamens i. e. Arch-Priests being driven out there were as many Arch-Bishops and Bishops put into their rooms the Seats of the Arch-Bishops were at London at York and at Caerleon in Wales to whom as also to other Religious persons the King granted Possessions and Territories in abundance and confirmed his Grants by Charters and Patents But he ordered the Churches as he of Monmouth and Florilegus tell us to be so free that whatsoever Malefactor should fly thither for refuge there he might abide secure and no body hurt him In the time of Constantine the Emperour whose Pedigree most people do refer to the British and Royal Blood the Lord President of France was Governour of Britanny He together with the rest those of Illyricum or Slavonia of the East and of Italy were appointed by the Emperour In his time the Lord Deputy of Britanny whose Blazonry was a Book shut with a green Cover was honoured with the Title of Spectabilis There were also under him two Magistrates of Consular Dignity and three Chief Justices according to the division of the Province into five parts who heard and determined Civil and Criminal Causes And here I set up my last Pillar concerning the Britans and the Roman Laws in Britanny so far forth as those Writers which I have do supply me with matter 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 AFterwards the Scots and Picts making incursions on the North and daily havock and waste of the Lands of the Provincials that is those who were under the Roman Government they send to desire of the Romans some Auxiliary Forces In the mean time Rome by a like misfortune was threatned with imminent danger by the fury of the Goths all Italy was in a fright in an uproar For the maintaining of whose liberty the Empire being then more than sinking was with all its united strength engaged and ready prepared So this way the Britans met with a disappointment Wherefore Vortigern who was Governour in Chief sent for supplies from the neighbouring Germans and invited them in But according to the Proverb Carpathius leporem He caught a Tartar for he had better have let them alone where they were Upon this account the Saxons the Angles the Jutes the Frieslanders arrive here in their Gally-Foists in the time of Theodosius the younger At length being taken with the sweetness of the soil a great number of their Countrey-men flocking over after them as there were at that time fatal flittings and shiftings of quarters all the World over and spurred on with the desire of the chief command and rule having struck up a League with the Picts they raise a sad and lamentable War against their new entertainers in whose service they had lately received pay and to make short in the end having turned the Britans out of their Ancestors Seats they advanced themselves into an Heptarchy of England so called from them Albeit they pass by various names yet in very deed they were all of them none other but Saxons A name at that time of a large extent in Germany which was not as later Geographers make it bounded with the Rivers of the Elb of the Rhine and the Oder and with the Confines of Hessen and Duringen and with the Ocean but reached as far as into the Cimbrian Chersonesus now called Jutland It is most likely that those of them that dwelt by the Sea-side came over
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
bishoprikes and Abbeis also That vacans were of prelas in the K. hand were ido And that the K. sold all the land as is owne take Uort at last that him lust eni prelat there make And than thulke prelat sould in is chapel ichose be Of is clarks which he wuld to such prelace bise And than wan he were ichose in is chapel right yere Homage he solde him do ar he confirmed were VI. The sixt was yuf eni play to chapitle were idraw And eni man made is appele yuf me dude him unlaw That to the Bishop from Ercedeken is appele sold make And from Bishop to Arcebissop and suth none other take And but the Ercebisops court to right him wold bring That he sold from him be cluthe biuore the King And from the K. non other mo so that attan end Plaining of holi chirch to the K. shold wend. And the K. amend solde the Ercebissops dede And be as in the Popes stude and S. Thomas it withsede VII The seuethe was that plaiding that of det were To yeld wel thoru truth iplight and nought ihold nere Althei thoru truth it were that ple sold be ibrought Biuore the K. and is bailies and to holy chirch nought VIII The eighth that in the lond citation none nere Thoru bull of the Pope of Rome and clene bileued were IX The nithe was that Peters pence that me gadereth manion The Pope nere nought on isend ac the K. echone X. The tethe was yuf eni Clarke as felon were itake And vor felon iproved and ne might it not forsake That me sold him verst disordein and suth thoru there law And thoru judgement of the land hong him other to draw Uor these and vor other mo the Godeman S. Thomas Fleu verst out of England and eke imartred was Uor he sei there nas bote o way other he must stiffe be Other holy chirch was isent that of right was so fre CHAP. XIV The Pope absolves Thoms 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 TO the Laws of Clarendon which I spoke of the States of the Kingdom the Baronage and with them the Arch-Bishop of Canterbury took their Oaths in solemn manner calling upon God There were Embassadors sent to Pope Alexander the third that there might be that bottom also that he would further confirm and ratifie them But he was so far from doing that that he did not only pretend that they did too much derogate from the priviledge of the Clergy and wholly refuse to give his assent to them but also having absolved Thomas the Arch-Bishop at his own request from the obligation of that Oath he had bound himself with he condemned them as impious and such as made against the interest and honour of holy Church King Henry as soon as he heard of it took it as it was fit he should very much in dudgeon grievously and most deservedly storming at the insolence of the Roman Court and the Treachery of the Bishop of Canterbury Immediately Letters were dispatcht to the several Sheriffs of the respective Counties That if any Clerk or Layman in their Bayliwicks should appeal to the Court of Rome they should seise him and take him into firm custody till the King give order what his pleasure is And that they should seise into the Kings hand and for his use all the Revenues and Possessions of the Arch-Bishops Clerks and of all the Clerks that are with the Arch-Bishop they should put by way of safe pledge the Fathers Mothers and Sisters Nephews and Neeces and their Chattels till the King give order what his pleasure is I have told the Story out of Matthew Paris You see in this instance a penalty where there is no fault It affects or reaches to their Kindred both by Marriage and Blood a thing not unusual in the declension of the Roman Empire after Augustus his time But let misdemeanors hold or oblige those who are the Authors of them was the Order of Arcadius and Honorius Emperors to the Lord Chief Justice Eutychianus nor let the fear of punishment proceed further than the offence is found A very usual right among the English whereby bating the taking away the Civil Rights of Blood and Nobility none of the Posterity or Family of those who lose their honours do for the most hainous crimes of their Parents undergo any pâ—â—alâ—ies But this was not all in those Letters I mentioned he added threats also 63. If any one shall be found carrying Letters or a Mandate from the Pope of Thomas Arch-Bishop of Canterbury containing an interdiction of Christian Religion in England let him be seised and kept in hold and let Justice be done upon him without delay as a Traitor against the King and Kingdom This Roger of Hoveden stands by ready to witness 64. Let the Bishops of London and Norwich be summon'd that they may be before the Kings Justices to do right i. e. to answer to their charge and to make satisfaction that they have contrary to the Statutes of the Kingdom interdicted the Land of Earl Hugh and have inflicted a sentence of Excommunication upon him This was Hugh Bigod Earl of Norfolk 65. ' Let St. Peters pence be collected or gathered and kept safe Those Pence were a Tribute or Alms granted first by Ina King of the West-Saxons yearly at Lammas to be gathered from as many as ' had thirty pence as we read it in the Confessor's Laws ' of live mony in their house These were duly at a set time paid in till the time of Henry the eighth when he set the Government free from the Papal Tyranny About which time Polydore Virgil was upon that account in England Treasurer or Receiver general I thought fit to set down an ancient brief account of these pence out of a Rescript of Pope Gregory to the Arch-Bishops of Canterbury and York in the time of King Edward the second Diocess li. s. d. Canterbury 07 18 00 London 16 10 00 Rochester 05 12 00 Norwich 21 10 00 Ely 05 00 00 Lincoln 42 00 00 Coventry 10 05 00 Chester 08 00 00 Winchester 17 06 08 Exceter 09 05 00 Worcester 10 05 00 Hereford 06 00 00 Bath 12 05 00 York 11 10 00 Salisbury 17 00 00 It amounts to three hundred Marks and a Noble that is two hundred Pounds sterling and six Shillings and eight Pence You are not to expect here the murder of Thomas a Becket and the story how King Henry was purged of the crime having been absolved upon hard terms Conveniunt cymbae vela minora meae My little Skiff bears not so great a Sail. CHAP. XV. A Parliament at Northampton Six Circuits ordered A List of the then Justices The Jury to be of twelve Knights
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
carcerem detrudantur omnia quae ipsius sunt ad fisci commodum seisiantur XXXIII If the instituted Comptrollers fail in that trust committed to them de catallis suis in misericordia Regis remaneant XXXIV An Aid of 5 s. the hide was taken through the Kingdom for collection were Commissions granted and power of conventing the Land tenants and charging them by Oath to make true report of Hides in every Mannor Ad poenam verò Juratorum qui aliquid contra Juramentum suum celaverint in hoc negotio statutum erat quod quicunque Rusticus convictus fuisset de perjurio daret domino meliorem bovem de carucâ suâ insuper responderet de proprio ad opus D. Regis tantum pecuniae quantum fuisset declaratum per suam perjuriam fuisse celatum Si verò liber homo by the opposite of the title Rusticus I conceive generally Tenants in ancient demesne which are not allowed the addition of Freeman and Copyholders convictus fuisset esset in misericordià Regis insuper refunderet de proprio ad opus D. Regis quantum fuerit per eum celatum sicut Rusticus XXXV Statutum fuit quod quilibet Baro cum Vicecomite faceret districtiones super homines suos si per defectum Baronum districtiones factae non fuissent caperetur de dominico Baronum quod super homines suos restaret reddendum ipsi Barones ad homines suos inde caperent libera feoda Ecclesiarum parochialium de hoc Tallagio excipiebantur omnes excaet Baronum quae fuerunt in manu Domini Regis communicaverunt XXXVI Serganteriae D. Regis quae non erant de feodis militum excipiebantur Take it of Graund or petit Serjeanty and it fully accords with some Term Books of later times allowed and published Capitula Placitorum Coronae D. Regis WHereof Hugh Bardulph Roger Arundel and Geffrey Harset Justices in Eire through the Northern parts held Plea XXXVII De omnibus assisis de magnis assisis usque ad X. libratas terrae infrá XXXVIII De Advocationibus Ecclesiarum capiantur coram eis electiones magnae assisae per mandatum D. Regis vel ejus capitalis Justittae XXXIX De Ecclesiis vacantibus vel non vacantibus quae fuerunt de donatione D. Regis XL. De Excaetis D. Regis XLI De Donationibus de valectis puellis quae sunt vel esse debent in donatione D. Regis de valentiis terrarum suarum si quis eorum vel earum sit maritatus inquiratur cui per quem à quo tempore XLII Quae viduae non finierunt pro se maritandis finis capiatur ad opus D. Regis XLIII De Serganteriis D. Regis quis ea habet per quem quantum valent qui finem non fecerunt ad auxilium Domini Regis look before in art xxxvii qui fecerunt finis capiatur XLIV De usuris Christianorum eorum catallis qui sunt mortui XLV De illis qui sunt in misericordiâ Regis non amerciati XLVI De purpresturis D. Regis XLVII De viis D. Regis estreciatis XLVIII De thesauris inventis XLIX De malefactoribus eorum receptoribus L. De fugitivis retatis reversis post ultimam assisam LI. De omnibus ponderibus mensuris ulnis renovatis si IV. homines refer hither the xxxii Article qui sunt attornati ad haec custodienda in unaquâque villâ fecerint quod inde statutum est si attachiaverint transgressores illius assisae si non attachiaverint prout debent puniantur sicut ipsi transgressores LII Totum vinum illius qui vendidit contra assisam capietur ad opus D. Regis praetereà Dominus vini venditores sint in misericordiâ Regis LIII Of defaults in the Commissioners appointed for levying the aids LIV. De Custodibus portuum maris si quid receperunt quod non reddiderunt si mercedem aliquam receperunt pro jure Regis retinendo si quis aliquid receperit qui non fuerit ad hoc attornatus The Justices of the Forest Hâ—gh of Nevill chief Justice Hugh Wac and Ernise of Nevil made their Circuits authorised by the King's Commission that in every County where they were to pass they should call before them ad placita forestae Archbishops Bishops Earls Barons all Free-holders the chief of every Town and IV. Yeomen ad audienda praecepta Regis Haec est assisa D. R. haec sunt Praecepta de forestis suis in Anglia facta per assensum Consilium Archiepiscop Episc Abbat Comit. Bar. Militum totius regni LV. THat none should trust in hope of easie composition for offences touching Venison or other matters of the Forest but that Justice should be done to the Convict qualis facta fuit tempore Henr. avi patris D. Regis viz. ut amittant oculos testiculos LVI That none presume to keep Bowes Arrowes Grey-hounds or other Dogs in the King's Forest nisi habeant ipsum Râ—gem ad Warrantum suum vel aliquem alium qui eum possit inde warrantizare LVII Quod nullus donet vel vendat aliquid ad destructionem bosci sui vel ad wastum quae sit infrà forestam Regis sed concedit bene quod capiant de boscis suis quod necesse eis fuerit sine wasto hoc per visum forestarii sui viridariorum suorum LVIII Quod omnes illi qui boscos habent infrà metas forestae D. Regis ponant idoneos forestarios in boscis suis de quibus forestariis ipsi quorum bosci fuerint sint plegii vel tales inveniant plegios idoneos qui possunt emendare si forestarii in aliquo forisfecerint quod D. Regi pertineat LIX That the King's Foresters take special survey lest other Mens Woods intrà metas forestae be destroyed sciant benè illi quorum bosci fuerint quòd de ipsismet vel de eorum terris capietur emendatio non de alio LX. Quod sui forestarii jurent quod secundùm omne posse suum tenebunt ejus assisam qualem eam fecit de forestis suis quòd non vexabunt milites neque probos homines de hoc quod D. Rex iis concessit de boscis eorum LXI That in every County where he hath Venison there be placed XII milites ad custodiendam venationem suam viride in forestis suis quod IV. milites ponantur ad adgistandos boscos suos ad recipiendum pannagium suum custodiendum defendendum LXII Quod nullus adgistet boscos suos infra metas forestae I think you had need translate metas into regard oft-times among these Orders antequam bosci eorum adgistentur Et est sciendum quod incipit adgistamentum D. Regis XV. Dies ante Festum
by Ship into Britanny To wit at first Horsus and Hengistus came over out of Batavia or the Low Countreys with a great company of Saxons along with them after that out of Jutland the Jutes for Janus Douza proves that the Danes under that appellation seised our Shores in the very beginning of the Saxon Empire out of Angela according to Camden about Flemsburg a City of Sleswick came the Angles out of Friseland Procopius is my Author the Frizons One may without any wrong call them all Saxons unless Fabius Quaestor Aethelwerd also did his Nation injury by calling them so He flourished Six hundred and fifty years ago being the Grand-child or Nephew of King Aethelulph and in his own words discourses That there was also a people of the Saxons all along the Sea-coast from the River Rhine up to the City Donia which is now commonly called Denmark For it is not proper here to think of Denmark in the neighbouring Territories of Vtrecht and Amsterdam by reason of the narrowness of that tract Those few Observes then which Adam of Bremen hath copied out of Einhard concerning the Saxons forasmuch as our Ancient Saxons I suppose are concerned in them I here set down in this manner and order 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 23. THe whole Nation consists of four different degrees or ranks of men to wit of Nobles of Free-men born of Free-men made so and of Servants or Slaves And Nithard speaking of his own time has divided them into Ethelings that is Nobles Frilings that is Free-men and Lazzos that is Servants or Slaves It was enacted by Laws That no rank in cases of Matrimony do pass the bounds of their own quality but that a Noble-man marry a Noble-woman a Free-man take a Free-woman a Bond-man made Free be joyned to a Bond-woman of the same condition and a Man-servant match with a Maid-servant And thus in the Laws of Henry Duke of Saxony Emperour Elect concerning Justs and Tournaments When any Noble-man had taken a Citizen or Countrey-woman to Wife he was forbid the exercise of that sport to the third Generation as Sebastian Munster relates it The Twelve Tables also forbad the marriage of the Patricii or Nobles with the Plebeians or Commons which was afterwards voided and nulled by a Law which Canuleius made when he was Tribune of the people For both Politicians and Lawyers are of opinion That in marriages we should make use of not an Arithmetical proportion which consists of equals nor of a Geometrical one which is made up of likes but of a Musical one which proceeds from unlike notes agreeing together in sound Let a Noble-man that is decayed in his estate marry a Commoner with a good fortune if he be rich and wealthy let him take one without a fortune and thus let Love which was begot betwixt Wealth and Poverty suite this unlikeness of conditions into a sweet harmony and thus this disagreeing agreement will be fit for procreation and breed For he had need have a good portion of his own and be nearer to Crassus than Irus in his fortunes who by reason of the many inconveniencies and intolerable charges of Women which bring great Dowries doth with Megadorus in Plautus court a Wife without a Portion according to that which Martial sayes to Priscus Vxorem quare locupletem ducere nolim Quaeritis Vxori nubere nolo meae Inferior Matrona suo sit Prisce Marito Non aliter fiunt foemina virque pares Which at a looser rate of Translation take thus Should I a Wife with a great fortune wed You 'l say I should be swéetly brought to bed Such fortune will my Liberty undo Who brings Estate will wear the Bréeches too Unhappy match where e're the potent Bride Hath the advantage wholly on her side Blest pairs when the Men sway the Women truckle There 's good agréement as 'twixt Thong and Buckle And according to that of the Greek Poet 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Take if you 'l be rul'd by me A Wife of your own degrée But there is little of our Age fashioned to the model of this sense Height of Birth Vertue Beauty and whatsoever there was in Pandorae of Good and Fair do too too often give place to Wealth and that I may use the Comedians word to a Purse crammed with Money And as the merry Greek Poet sayes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 To be Noble or high-born Is no argument for Love Good Parts of Bréeding lye forlorn 'T is Money only they approve I come back now to my friend Adam 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 24. THey take a Prisoner of that Nation with which they are to have a War by what way soever they can catch him and chose out one of their own Countrey-men and putting on each of them the Arms of their own Countrey make them two fight together and judge of the Victory according as the one or the other of them shall overcome This very thing also Tacitus himself hath to whom Einhard sends his Reader For though he treat in general of the Germans yet nevertheless without any question our Saxons brought over along with them into this Island very many of those things which are delivered to us by those who have wrote concerning the Customs of the Germans Among which take these following 25. In Councils or publick Assemblies the King or Prince i.e. a chief person according as every ones Age is according to his Nobility according to his Reputation in Arms according to his Eloquence has audience given him where they use the authority of perswading rather than the power of commanding If they dislike what he sayes they disapprove it with a Hum and a rude noise If they like the proposal they shake and rustle their Spears or Partisans together It is the most honourable kind of assent to commend the Speaker with the clattering of their Arms. From hence perhaps arose the ancient right of Wapentakes 26. There are also chosen at the same Councils or Meetings chief persons as Justices to administer Law in the several Villages and Hamlets Each of those have a hundred Associates out of the Commonalty for their Counsel and Authority This is plainly the pourtraict of our Hundreds which we still have throughout the Counties of England 27. They do nothing of publick or private affair but with their Arms on but it is not the custom for any
vel illius pro praejudicio accipitur XVII Unto the times before Christianity among them was received this is to be referred The first Christian King Ethelbert of Kent Inter caetera as Venerable Bede reporteth bona quae genti suae consulendo conferebat etiam decreta illi judiciorum juxta exempla Romanorum cum consilio sapientum instituit Quae conscripta Anglorum sermone hactenus saith he habentur observantur ab eâ And very many Constitutions yet extant written in the Saxon Tongue are attributed to Ine Alfred Edward Athelstan Edmund Edgar Ethelred and Canutus or Knute translated into Latine and published long since by William Lambard a learned Gentleman with the Laws of Edw. the Confessor so called non quod ille statuerit saith one sed quod observaverit whereunto are joyned divers with title of William the Conqueror which being so there already according to several times in one Volume for that only purpose compiled they only shall here be inserted which as yet lie dispersed in the old Monuments of our Historians XVIII Totius Angliae of King Alured so writeth Ingulphus Abbot of Croyland pagos provincias in Comitatus primus omnium commutavit Comitatus in Centurias i. e. Hundredas in decimas as if he imitated Jethro Moses Father-in-law id est tythingas divisit ut omnis indigena legalis in aliquâ centuriâ decimâ existeret Et si quis suspectus de aliquo latrocinio per suam Centuriam vel decuriam vel condemnatus vel invadiatus poenam demeritam vel incurreret vel vitaret Praefectos verò provinciarum qui antea Vicedomini in duo officia divisit i. e. in Judices quos nunc Justiciarios vocamus in Vicecomites qui adhuc idem nomen retinent XIX Of King Edgar the Monk of Malmesbury writeth thus Quia Compatriotae in tabernis convenientes jamque temulenti pro modo bibendi contenderent ipse clavos argenteos vasis affigi jussit dum metam suam quisque cognosceret non plus subserviente verecundiâ vel ipse appeteret vel alium appetere cogeret Constraint of such as were too indulgent to the desires of their sensual appetite by ingurgitation of brain-smoaking Liquors was by the Greek Zaleucus and so received among the Locrians no less than capital But which hath been always so far from this State that until the third Session of the present Parliament not so much as any pecuniary mulct endeavoured to refrain that temporary and altogether voluntary madness XX. Nulla saith Ingulphus electio Praelatorum erat merè libera Canonica sed omnes dignitates tam Episcoporum quam Abbatum per annulum baculum Regis Curia pro suâ complacentiâ conferebat XXI Chirographa until the Confessor's time fidelium praesentium subscriptionibus cùm crucibus aureis aliisque sacris signaculis firma fuerunt XXII Conferebantur primò saith he but I understand it of the Infancy of the Norman state multa praedia nudo verbo absque scripto vel chartâ tantum cum Domini gladio vel galea vel cornu vel cratere plurima tenementa cum calcari cum strigili cum arcu nonnulla cum sagittâ This somewhat savours of Obertus Orto's form of investiture in his Feudals or his of this and differs much from our strict Livery of Seisin which regularly ought to be made with part of and upon the Land by gift transferred Not unworthy in this place of observation is that Charter of Cedwalla King of Sussex as among old Monuments of evidence belonging to the Arch-bishop of Canterbury I have seen in the Year DCLXXXVII made to Theodore then Archbishop of certain Lands with this subscription Ad cumulum autem Confirmationis ego Cedwalla cespitem terrae praedictae super sanctum altare Salvatoris posui propriâ manu pro ignorantia literarum signum sanctae Crucis expressi subscripsi The like hath Camden out of a Patent made by Withered King of Kent to a Nunnery in the Isle of Thanet But to that form of conveyance which Ingulphus speaks of is thus added Sed haec initio regni sui posterioribus annis immutatus est iste modus The antiquity of deeming the Queen both as Covert and also a sole person with such respective admittance as is commonly agreed upon and the Custome of Land-forfeiture upon Felony committed are both referred to these times The first proved by that learned Chief Justice Sir Edw. Coke out of a Gift made by Aethelswith Wife to King Burghred to one Cuthwulfe her Servant DCCCLXVIII The other from an Example by him published of one Ethesig whose Lands were forfeited to King Ethelred for feloniously stealing one Ethelwine's Swine CHAP. IV. William the First But none of that which under title of his Laws is in Lambard NO sooner was the Norman William circled with the Crown of his Victory but I. Decrevit subjectum sibi populum my Author is Gervase of Tilbury juri scripto legibusque subjicere Propositis igitur legibus Anglicanis secundùm tripartitam earundem distinctionem hoc est Merchenlage this govern'd the Shires of Glocester Worcester Hereford Warwick Oxford Chester Shropshire and Stafford Westsaxenlage hereby were ordered Kent Sussex Surry Barkshire Hamshire Wiltshire Somerset Dorset and Devonshire and Danelage by it York Darby Nottingham Leicester Lincoln Northampton Bedford Buckingham Hartford Essex Middlesex Norfolk Suffolk Cambridge and Huntingdon quasdam reprobavit quasdam autem approbans illis transmarinas Neustriae that is Normandy corruptly for Westriae the opposite to that other part of the division of France Eustrasia leges quae ad regni pacem tuendam efficacissimè videbantur which was not performed without earnest and most humble request of the English For as honouring with respect the Northern stock whence his blood was derived the Danelage he preferred as worthier and better for Government than the mere English But seeming at first inexorable the perswasive remembrance of his Soul which bequeathed him the Kingdom and whose Laws they desired being as the best supposed motive inserted in the Petitions of the conquered he granted so much that from that time veneratae per universam Angliam corroboratae observatae sunt prae caeteris patriae legibus leges Edwardi Regis quae priùs inventae it is Roger of Hoveden's Report constitutae erant in tempore Edgari avi sui II. Fecit describi omnem Angliam the substance hereof is in most of the Monkish histories but Florence of Worcester is the Author I now use quantum terrae quisque Baronum suorum possidebat quot feudatos milites quot carucas quot villanos quot animalia imò quantum vivae pecuniae quisque possidebat in omni regno suo à maximo usque ad minimum quantum redditûs quaeque possessio reddere poterat This Inquisition was returned into his Exchequer and is a Book
Book of Ely you may collect that the Probate was supply'd in the life-time of the Testator by Inrolment or leaving an Indented Copy of it with the Alderman or Sheriff of the County in whose County-Court the most of proceedings of Temporal Justice and of the Spiritual also for the Bishop sate with him as in his Consistory were in the Saxon times for so much perhaps may be conjectured out of it as we faithfully here relate it Siwerth in King Edgar's time lying sick at Lindane in the Isle of Elie makes his Testament and sends for Brithnorth Abbot of Elie and divers of the Monks and others of the Gentry and the Abbot writes the Testament in tribus Chirographis coram so are the words of the Book cunctis fecit recitari lectumque fecit incidi unamque partem Chirographi retinuit Siferthus Alteram autem dedit Abbati tertiam vero misit statim per praefatum Brithelmum that was one of the Gentlemen of the Countrey then present Ailwino Aldermano qui tunc temporis degebat in Elie petiit ab illo ut suum Testamentum stare concederet quomodo Abbas illud scripserat ordinaverat apud Lindane coram praedictorum Testimonio virorum Cum itaque Ailwinus Alderman hoc audisset Chirographum vidisset remisit illico ad eum Wlnothum de Stowe cum Brithelmo sciscitatusque est ab eo quid aut quomodo vellet de Testamento suo qui mox per eosdâ—m renuntiavit ei sic suum Testamentum absque omni contradictione vel mutatione se velle stare sicut praefatus Abbas illud in Chirographo posuerat quod ut Ailwinus Alderman audivit totum concessit ut staret sicut ipse Siverthus Testatus erat But in deed in it Lands lying in Durham were devised to the Abbey and so it was not only of personal Chattels The Saxon Laws are very silent of any thing touching Testaments and we must remember while we think of that example of Siwerth of Durham that the Ecclesiastical and Temporal Courts of Common Justice held as one by the Sheriff and Bishop were not severed as now into the Consistory and County Court until the Conqueror did it by a Law yet remaining and elsewhere published In what intercedes from this time until about H. 2. I find not any Testimony that gives light to this purpose as the Saxon Laws so those of the Conquerour and of H. 1. and H. 2. mention nothing that tasts of either kind of Jurisdiction of Testaments only of a Charter of H. 1. extant in Matth. Paris and in the Red Book of the Exchequer this occurrs Si quis Baronum vel hominum meorum infirmabitur sicut ipse dabit vel dare jusserit pecuniam suam ita datam esse concedo This may perhaps seem to denote that the Kings Court determined of Legacies especially of the Kings Tenants But indeed it proves not so much But the eldest passage that proves clear enough here is that which makes the Intrinsecal Jurisdiction to have been in the Church and the Extrinsecal in the Kings Court I mean that which is found in the Treatise attributed to Randall of Glanvill Chief Justice under H. 2. where he sayes that if a Legacy be detained the Executors or other friends of the Testator were to get the Kings Writ to the Sheriff commanding quod justè sine dilatione facias stare rationabilem divisum that is the Bequest or Legacy N. sicut rationabiliter monstrari poterit quod eam â—ecerit quod ipsam stare dibeat c. And it is plain by the words there preceding and subsequent that it hath reference to moveable or personal possessions not to Lands c. So that it seems clear by that in H. 2. his time the Jurisdiction of personal Legacies was in Secular Courts But if the Issue in Secular Courts upon that Writ came to be whether the Testament were true or no or well made or whether the thing demanded were in facto bequeathed Tum sayes he placitum illud in Curta Christianitatis audiri debet terminari quià placitum de Testamentis coram Judice Ecclesiastico fieri debet per illorum qui Testamento interfuerint testimonia secundum juris ordinem terminari that is as it must be understood that upon issue of bequeathed or not bequeathed of Testament made or no Testament the Tryal must have been otherwise than by the practice of the latter Law wherein the Testament is traversable and the Traverse tryable in the Kings Court by Certificate to the Temporal Court from the Ecclesiastical as at this day of Institution Bastardy and Profession in Religion and the like and thence may it be well concluded that at this time by the practised Law the Probate or the Intrinsecal Jurisdiction was in the Church for as the Institution Bastardy and Profession are to be certified because within the Bishops Jurisâ—iction Some recorded Testimonies remain of the first and third and the nature of the Marriage or Cohabitation that directs in the second is to be judged of only in the Spiritual Courts so the Validity of the Testament or the truth of this or that particular Legacy was to be certified from the Spiritual Court because the Probate had there proceeded and the Copy there remaining was most authentick otherwise to what purpose should they have sent to the Spiritual Court in such a case But on the other side as in the case of Institution Profession and Bastardy the consequence of them which are objects of their Extrinsecal Jurisdiction as Descent Exclusion from Inheritance gaining it by a descent cast or legal making a Church full or the like are determinable only at the Common Law so the consequence of a Testament that is the Recoveries of Legacies and such like as it seems by that Writ were in the Temporal not in the Spiritual Court I know the authority of that Treatise is suspected and some of the best and ancientest Copies having the name of E. de N. which I have heard from diligent searchers in this kind of Learning affirmed to have been sometimes E. de Narborough and not R. de Glanvilla it hath been thought to be anothers Work and also of later time But as on the one side I dare not be confident that it is Glanvills so I make little question that it is as ancient as his time if not his Work The Tests of the Precedents of Writs under his name the language especially the name of Justitia alwayes for that which we now from ancient time call Justitiarius and Justitia was so used in Writers under H. 2. and the Law delivered in it tasteth not of any later Age. And howsoever it comes to pass the Regiam Majestatem of Scotland published by Command of David the First under the time of our Hen. 1. hath for the most part the same syllables with this supposed Glanvill and expresly the very passages and the
as it seems by Glanvill and other Testimonies that it was in the Kings Courts under H. 2. and so by all probability before so out of other Records of following time somewhat may perhaps be collected to prove that it continued long in them as out of the Patent of King John for Oliver of Rochford's Testament Sciatis sayes the King Nos concessisse Testamentum Oliveri de Rupe forti sicut rationabiliter conditum est apud S. Florentiam veterem Rupem fortem scriptum ordinatum Quare volumus firmiter praecipimus quod nullus Executorum Testamenti ipsius impediat quin illud sicut rationabiliter conditum est faciant Then out of that of Peter de Roches Bishop of Winchester and Chief Justice of England touching the Will of Adam of Gurdun Rex Dom. P. Winton Episc. Justic. Angl. c. Mandamus Vobis quod teneri facias Testamentum Adae de Gurdun quod fecit de Rebus suis mobilibus omnibus aliis in Angl. secundum dispositionem testamenti excepta terra quam de domino nostro habuit septimo Augusti Teste meipso this expresly gives some legal execution of a Testament made of personal things unto the Chief Justice of England And in 5 H. 3. Robert of Lexinton having the possession of all the goods of Philip de Vletott the Testator a Writ goes out to him to pay William Earl of Salisbury a debt of Ninety Marks out of them and that the rest should be delivered to the Executors ad faciendum Testamentum and another Writ was sent that he should per visum Testimonium Execut. sell all Vletott's goods denarios quos inde fieri feceritis salvo faciatis reponi sub sigillo vestro sigillo Executor praedict donec aliud mandatum nostrum inde habueritis And in 7 Hen. 3. a Writ is directed to the Sheriff of Lincoln reciting that whereas it appeared that Richard Fitz-dune dyed not Intestate Ideo tibi praecipimus quod omnia Catalla ipsius Richardi in Manum nostram capta in balliva tua sine dilatione habere facias Priori de Noketon and other Executors of his Testament ad faciendum inde rationabile testamentum and other like Writs occurr in the Rolls of King John and H. 3. CHAP. VIII Suits of Legacies personal in the Spiritual Court from the beginning of Henry the Third of the beginning of that Course BUt however it may seem by those Testimonies that the Temporal Courts had some Extrinsecal Jurisdiction of Testaments in the time of King John and Hen. 3. it is clear that in the beginning of H. 3. Suits for Legacies personal were in the Spiritual Courts and that it seems from Custome setled in practice of the former times that were then newly past And perhaps it might be in the more ancient times fori mixti and as well exercised in the one as in the other Court as we have elsewhere shewed of the more ancient Jurisdiction of Tithes or it may be that those Writs in the former Chapter and the like were but in case of Tenants being Testators upon whose deaths all their goods were to be seised by the Sheriff or other such Officer and the debt if any were paid to the King Et residuum relinquebatur Executoribus testamenti defuncti as the words are both of the Charters of King John and H. 3. and perhaps by that Chapter of the Charter those Writs may be interpreted and faciatis teneri testamentum may be but only an amoving of the Kings hands from the goods that so the Executor might perform the Testament for that the Spiritual Court did from the beginning of H. 3. exercise a Jurisdiction for recovery of Legacies is infallibly proved by Cases of 2 4 6 8 Hen. 3. and the Attachments upon Prohibitions extant in Records of that time are quare secutus est placitum in Curia Christianitatis de Catallis quae non sunt de Testamento vel matrimonio and many such more are both in the Rolls and in Matth. Paris It appears also in 2 H. 3. in the Case of Symon Fitz-Simon that even that Suit for deviseable Land being devised was thought to be good in the Spiritual Court ex Causa testamentaria as if Laicum feodum versum esset in Catallum until the devisee had recovered it and after the recovery iterum incipiebat esse Laicum feodum as Bracton sayes where his Printed Copy is exceedingly corrupted But it was clear Law in the time of this Bracton who was a Judge in the Common Pleas in the latter part of H. 3. that locum non habet probatio in Causa testamentaria si Catalla legentur inde agatur in foro Ecclesiastico and he reckons that of Testaments inter spiritualia spiritualibus annexa which agrees exactly in the known and practised Consultations in the Register placita de Catallis debitis quae sunt de Testamento Matrimonio ad forum Ecclesiae specialiter dignoscimus pertinere c. And although in case of Legacy as in case of Tithes the Jurisdiction that gave the recovery of them was sometimes in the one sometimes in the other Court before it was restrained to the Spiritual only yet it seems by those Cases of Henry the Third's time which are Testimonies beyond exceptions that the Spiritual Jurisdiction over Legacies was long before in practice otherwise I guess that exception de Testamento de Matrimonio had not been so familiar in the Prohibitions of that Age. And notwithstanding those Cases out of the Records of King John's and Henry the Third his time the Temporal Court not only prohibited not the Spiritual Court especâ—ally in Hâ—nry the Third's time but also had not any Conusance of Suits for personal Legacies for neither have I ever met with any Suit in that kind in the Plea Rolls of H. 3. or King John or Richard 1. but very few are extant of the time of the two last neither doth Bracton admit any such thing And the Author of Fleta in the time of E. 1. tells us expresly de Causa Testamentaria sicut nec de causa Matrimoniali Curia Regis se non intromittet But the beginning of that practice of the Extrinsecal Jurisdiction in the Spiritual Court is even as difficult to find as that other of Probates Linwood tells us that libertas quoad secundum scilicet puniendum impedientes quo minus testamenta ultimae voluntates defunctorum procedant ortum habet à privilegiis etiam in ea parte concessis à consuetudine similiter de scientia Regum Angl. diutius observata and further potuit saith he habere ortum out of those Laws in the Code that made the Bishop a Protector of Legacies in pios usus It might be also in regard of the purpose of those Laws in themselves and it were no great wonder that the Ecclesiastical Court