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 a mid lere Cenredes mines fader a hedde a Erconwald mine hiscops a 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 Assembly 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 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. Meetings of the Wise Men and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 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 sit 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 HighConstable 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 Ceâ—lin 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 Oswald'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 Plaissy 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
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 Dars 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 presâ—nt 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 Eâ—helbald 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 fancy of the Clerks or Notaries However the last words which are the close of these Grants and Patents are not to be slighted These we may see in that of Cedwalla King of the South-Saxons made to Theadore Arch-Bishop of Canterbury in the year 687. thus For a further confirmation of my grant I Cedwalla have laid a Turf of the Land aforesaid upon the holy Altar of my Saviour And with my own hand being ignorant
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 and other like cases Nay and if Leland an Eye-witness may be believed our great Prince Arthur had his Seal also which he saith he saw in the Church of Westminster with this very inscription PATRITIUS ARTHURIUS BRITANNIAE GALLIAE GERMANIAE DACIAE IMPERATOR That is The Right Noble ARTHUR Emperor of Britanny France Germany and Transylvania But that the Saxons had this from the Normans is a thing out of all question Their Grants or Letters
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 AT length though late first Henry the Son of Jeoffry Plantagenet Count of Anger 's by the Empress Mawd came to his Grandfatherrs Inheritance Having demolished and levelled to the ground the Castles which had in King Stephen's time been built to the number of eleven hundred and fifteen and having retrieved the right of Majesty into its due bounds he confirmed the Laws of his Grandfather Moreover at Clarendon in Wiltshire near Salisbury John of Oxford being President by the Kings own Mandate there being also present the Arch-Bishops Bishops Abbots Priors Earls Barons and Peers of the Realm other Laws are recognized and passed whilst at first those who were for the King on one side those who were for the Pope on the other with might and main stickle to have it go their way these latter pleading that the secular Court of Justice did not at all suit with them upon pretence that they had a priviledge of Immunity But this would not serve their turn for such kind of Constitutions as we are now setting down had the Vogue 44. If any Controversie concerning the Advowson and Presentation of Churches arise betwixt Laymen or betwixt Laymen and Clergymen or betwixt Clergymen among themselves let it be handled and determined in the Court of the Lord our King 45. The Churches which are in the Kings Fee cannot be given to perpetuity without his assent and concession Even in the Saxons times it seems it was not lawful without the Kings favour first obtained to give away Estates to Monasteries for so the old Book of Abington says A Servant of King Ethelred's called Vlfric Spot built the Abby of Burton in Staffordshire and gave to it all his Paternal Estate appraised at seven hundred pounds and that this donation might be good in Law he gave King Ethelred three hundred Marks of Gold for his confirmation of it and to every Bishop five Marks and over and above to Alfric Arch-Bishop of Canterbury the Village of Dumbleton 46. Clergymen being arighted and accused of any matter whatsoever having been summoned by the Kings Justice let them come into his Court there to make answer to that of which it shall be thought fit that there answer ought to be made So that the Kings Justice send into the Court of Holy Church to see after what manner the business there shall be handled 47. If a Clergyman shall be convicted or shall confess the Fact the Church ought not from thenceforth to give him protection 48. It is not lawful for Arch-Bishops Bishops and Persons of the Kingdom to go out of the Realm without leave of our Lord the King And if they do go out if the King please they shall give him security that neither in going nor in returning or in making stay they seek or devise any mischief or damage against our Lord the King Whether you refer that Writ we meet with in the Register or Record NE EXEAS REGNVM for Subjects not to depart the Kingdom to this time or instance or with Polydore Virgil to William Rufus or to later times is no very great matter Nor will it be worth our while curiously to handle that question For who in things of such uncertainty is able to fetch out the truth Nor will I abuse my leasure or spend time about things unapproachable An sit hic dubito sed hic tamen auguror esse Says the Poet in another case And so say I. Whether it be here or no Is a Question I confess And yet for all that I trow Here it is too as I guess Out of King John's great Charter as they call it you may also compare or make up this Repeal of that Law in part Let it be lawful henceforward for any one to go out of our Realm and to return safely and securely by Land and by Water upon our Royal word unless in time of War for some short time for the common advantage of the Kingdom excepting those that are imprisoned and out-lawed according to the Law of the Kingdom and any People or Nation that are in actual War against us And Merchants concerning whom let such Order be taken as is afore directed I return to King Henry 49. Excommunicate Persons ought not to give suretiship for the Remainder nor to take an Oath but only to find Surety and Pledge to stand to the Judgment of the Church that they may be absolved 50. Persons of the Laity ought not to be accused or impleaded but by certain and legal Accusers and Witnesses in the presence of the Arch-Bishop or Bishop so that the Arch-Deacon may not lose his right nor any thing which he ought to have therefrom 51. If they be such Persons who are in fault as no one will or dare to accuse let the Sheriff being thereunto required by him cause twelve legal men of the Voisinage or of the Village to swear before the Bishop that they will manifest or make known the truth of the matter according to their Conscience 52. Let no one who holds of the King in capite nor any one of the Kings Officers or Servants of his Domain be excommunicated nor the Lands of any of them be put under an Interdict or prohibition unless first our Lord the King if he be in the Land be spoke with or his Justice if he be out of the Land that they may do right by him And so that what shall appertain to the Kings Court may be determined there and as to what shall belong to the Ecclesiastical Court it may be sent thither and there treated of CHAP. XI Other Laws of Church affairs Concerning Appeals A Suit betwixt a Clergyman and a Layman 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 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 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 â—aron 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 Bishops 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 sed bitwen them feu Alas alas thulke stond vor all to well it greu Uor there had ere ibe kings of Luther dede As W. Bastard and his son W. the rede That Luther Laws made inou and held in al the lond The K. nold not beleue the lawes that he fond Ne that his elderne hulde ne the godeman S. Thomas Thought that thing age right neuer law nas Ne sothnes and custom mid strength up iâ—old And he wist that vre dere Lourd in the Gospel told That he himselfe was sothnes and custum nought Theruore Luther custumes
Pledge i. e. having a free Tenure let his heirs remain in such Seisin as their Father had on the day he was alive and dyed of his fee and let them have his Chattels out of which they may make also the devise or partition of the deceased that is the sharing of his goods according to his will and afterwards may require of their Lord and do for their relief and other things which they ought to do as touching their Fee i. e. in order to their entring upon the estate 71. If the heir be under age let the Lord of the Fee take his homage and have him in custody or keeping for as long time as he ought let the other Lords if there be more of them take his homage and let him do to them that which he ought to do 72. Let the Wife of the deceased have her Dowry and that part of his Chattels which of right comes to her In former times peradventure it was a like generally practised by the English that the Wife and Children should have each their lawful Thirds of the estate each of them I say if they were in being but half to the Wife if there were no issue and as much to the Children if the Wife did not survive her Husband as it was practised by the Romans of old according to the Falcidian Law and of later time by the Novells of Justinian that they should have their Quarter part For I see that those of Normandy of Arras of Ireland people that lay round about them had the same custom Of this you are to see Glanvill Bracton the Register of Briefs or Writs and William Lindwood beside the Records or yearly Reports of our Law 73. Let the Justices take the Fealties of our Lord the King before the close of Easter and at furthest before the close of Pentecost namely of all Earls Barons Knights and Free-holders and even of Rusticks or Vassals such as have a mind to stay in the Realm and he who will not do featly let him be taken into custody as an enemy of our Lord the King 74. The Justices have also this to give in charge that all those who have not as yet done their homage and allegiance to our Lord the King do at a term of time which they shall name to them come in and do homage and allegiance to the King as to their Liege Lord. 75. Let the Justices do all acts of Justice and rights belonging to our Lord the King by a Writ of our Lord the King or of them who shall be in his place or stead as to a half-Knights fee and under a Knights ' fee in an old Book which pretends to more antiquity by far than it ought concerning the manner of holding Parliaments is said to be twenty pounds worth of Land in yearly revenue but the number prefixt before the Red Book of the Exchequer goes at the rate of Six Hundred and Eighty Acres unless the complaint be of that great concern that it cannot be determined without our Lord the King or of that nature that the Justices by reason of their own doubting refer it to him or to those who shall be in his place and stead Nevertheless let them to the utmost of their ability intend and endeavour the service and advantage of our Lord the King 76. Let the Justices provide and take care that the Castles already demolisht be utterly demolished and that those that are to be demolished be well levelled to the ground And if they shall not do this our Lord the King may please to have the judgement of his Court against them as against those who shew contempt of his Precept 77. A Thief or Robber as soon as he is taken let him be put into the Sheriffs hands to be kept in safe custody and if the Sheriff shall be out of the way let him be carried or brought to the next Constable of a Castle and let him have him in custody until he deliver him up to the Sheriff 78. Let the Justices according to the custom of the Land cause inquiry to be made of those who have departed or gone out of the Realm And if they shall refuse to return within a term of time that shall be named and to stand to right in the Kings Court i. e. to make their appearance and there to answer if any thing shall be brought in against them let them after that be outlawed and the names of the Outlaws be brought at Easter and at the Feast of St. Michael to the Exchequer and from thence be sent to our Lord the King These Laws were agreed upon at Northampton 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 79. THat henceforth a Clergy-man be not dragg'd and drawn before a Secular Judge personally for any crime or transgression unless it be for Forest or a Lay-fee out of which a Lay-service is due to the King or to some other Secular Lord. This priviledge of the Clergy the King granted to Hugh the Popes Cardinal Legate by the Title of S. Michael à Petra who arrived here on purpose to advance the Popish interest 80. Furthermore that Arch-Bishopricks Bishopricks or Abbacies be not held in the Kings hand above a year unless there be an evident cause or an urgent necessity for it 81. That the Murderers or Slayers of Clergy-men being convicted or having confest before a Justice or Judge of the Realm be punished in the presence of the Bishop 82. That Clergy-men be not obliged to make Duel i. e. not to clear themselves as others upon some occasion did by single combat 83. He ordained at Woodstock we transcribe these words out of Hoveden that whosoever should make a forfeit to him concerning his Forest or his hunting once he should be tyed to find safe Pledges or Sureties and if he should make a second forfeit in like manner safe Pledges should be taken of him but if the same person should forfeit the third time then for his third forfeit no pledges should be taken but the proper body of him who made the forfeit Moreover 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 â— 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 if 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 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
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 Turketulus 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-Half-King Now Hâ—nry 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 and 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 Redâ—eriis 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
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 Berosus 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 is yeleped Dis the Founder of the Celtick Colonies stuffing up odd Patcheries of Story to entertain and abuse the Reader Now this I thought fit by the by not to conceal that all that space which is bounded with the River Rhine the Alpes the Mediterranean Sea the Pyrenean Hills and lastly the Gascoin and the British Oceans was formerly termed Celtogalatia nay that Pâ—olomy hath comprized all Europe under the name of Celtica Well as the Commentary of Annius has it This Samothes
should incur the Kings fine Here we have the Original of Decenna or a Court-leet of Friburg and perhaps of Mainpast Which things though grown out of use in the present Age yet are very often mentioned not only in the Confessors Laws but also in Bracton and in other Records of our Law What Decenna was the word it self does almost shew And Ingulph makes out that is a Dousin or Courtleet Friburg or Borgh signifies a Surety for Fri is all one as free He who passes his word for anothers good behaviour or good abearing and is become his security is said to have such a one in his Borgh Being ingaged upon this account to the Government to answer for him if he misbehave himself And hence it is that our people in the Country call those that live near them or as I may say at the next door Neighbours When yet those that would find out the reason why the people of Liege in the Low Countries are called Eburones do understand that Burgh which is the same as Borgh to stand for a Neighbour and this is plainly affirmed by Pontus Heuterus in other Originations of the like kind Manupastus is the same thing as a Family As if one would say fed by hand Just in the like sence Julius Pollux in Greek terms a Master of a Family Trophimos that is the feeder of it That the Rights of Friburg and Manupast were in use with the English some five or six Generations ago is manifest Curio a Priest is fined by Edward the third because there had been one of his Family a Murderer And the ancient Sheets concerning the Progress or Survey of Kent under Edward the second do give some light this way Ralph a Milner of Sandon and Roger a Boy of the said Ralph in Borgh of Twicham Critick whoever you are I would not have you to laugh at this home spun Dialect came by night to the Mill of Harghes and then and there murdered William the Milner and carried away his Goods and Chattels and presently fled It is not known whither they are gone and the Jury mistrusts them the said Ralph and Roger concerning the death of the aforesaid William therefore let them be driven out and out-lawed They had no Chattels but the aforesaid Ralph was in Borgh of Simon Godwin of Twâ—cham who at present has him not and therefore lies at mercy And Roger was not in Borgh but was of the Mainpast of Robert Arch-Bishop of Canterbury deceased there being no Engleshire presented the Verdit is the murder upon the Hundred The first discoverer of it and three Neighbours are since dead and Thomas Broks one of the Neighbours comes and is not mistrusted and the Villages of Wimesbugewelle and Egestoun did not come fully to the Coroners Inquest and are therefore at mercy And about the same time Solomon Roâ— of Ickham came to the House of Alice the Daughter of Dennis Wâ—â—nes and beat her and struck her upon the Belly with a staff so that she dyed presently And the foresaid Solomon presently fled and the Jury mistrust him concerning the death aforesaid therefore let him be driven out and be outlawed He had no Chattels nor was he in Borgh because a Vagrant The Verdit the murder lies upon the Hundred c. And according to this form more such Instances But let it suffice to have hinted at these things adding out of Henry Bracton If out of Frank-pledge an Offender be received in any Village the Village shall be at mercy unless he that fled be such an one that he ought not to be in Leet and Frank-pledge as Nobles Knights and their Parents their eldest Sons it is in the yearly Records of Law in Edward the first 's time and we may take in Daughters too a Clergy-man a Freeman I fear this word has crept in and the like according to the custom of the Country and in which case he of whose Family and Mainpast they were shall be bound in some parts and shall answer for them unless the custom of the Country be otherways that he ought not to answer for his Mainpast as it is in the County of Hertford where a man does not answer for his Mainpast for any offence unless he return after Felony or he receive him after the offence committed as in the Circuit of M. de Pateshull in the County of Hertford in such a year of King Henry the fifth In sooth these usages do partly remain in our Tythings and Hundreds not at all hitherto repealed or worn out of fashion 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 Harald's Law that no Welch-man should come on this side Offa's Dike with a weapon 36. THe Governors of Provinces who before were styled Deputy-Lieutenants we return to Ingulph and King Alfred He divided into two Offices that is into Judges whom we now call Justices and into Sheriffs who do still retain the same name Away then with Polydore Virgil who fetches the first Sheriffs from the Norman Conqueror 37. John Scot Erigena advised the King that he would have his Subjects instructed in good Letters and that to that end he would by his Edict take care of that which might be for the benefit of Learning Whereupon he gave strict order to all Freemen of the whole Kingdom who did at least possess two Hides of Land that they should hold and keep their Children till the time of fifteen years of their Age to learning and should in the mean time diligently instruct them to know God A Hide of Land that I may note it once for all and a Plough Land that is as much Land as can be well turned up and tilled with one Plough every year are read as synonymous terms of the same sence in Huntingdon Matthew Paris Thomas Walsingham and expresly in a very old Charter of Dunstan Although some take a Hide for an hundred Acres and others otherwise do thou if thou hadst rather so do fansie it to be as much ground as one can compass about with a Bull-hide cut into Thongs as Queen Dido did at Carthage There are some who are not unwilling 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
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' hold 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 Hanberk 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 nor upon the death of Arch-Bishop or Bishop or Abbot will I take any thing of the domain of the Church or of the men thereof till a Successor enter upon it And all evil Customs wherewith the Kingdom of England was unjustly oppressed I do henceforward take away which evil usages I do here in part set down 18. If any one of my Barons Counts or others that hold of me shall dye his Heir shall not redeem his Land
to chapitle wore 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 iâ—light and nought iâ—old 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 hote 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 Scisure 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 Angustâ—â—s his time But let misdemeanors hold or oblige those who are the Authors of them was the Order of Arcaliâ—s and Honorius Emperors to the Lord Chief Justice Eâ—tâ—chianus 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 penalties But this was not all in those Letters I mentioned he added threats also 63. If any one shall be sound carrying Letters or a Mandate from the Pope or 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 meâ— 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 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 NOt long after the King and the Barons meet at Northampton They treat concerning the Laws and the administration of Justice At length the Kingdom being divided into six Provinces or Circuits there are chosen from among the Lawyers some who in every of those Provinces
might preside in the Seat of Justice Commissioned by the Name of Itinerant Justices or Justices in Eyre See here the List and Names of those Justices out of Hoveden Hugh de Cressi Walter Fitz-Robert Robert Mantel for Norfolk Suffolk Cambridge Huntington Bedford Buckingham Essex Hertford Hugh de Gundeville William Fitz-Ralph William Basset for Lincoln Nottingham Darby Stafford Warwick Northampton Leicester Robert Fitz-Bernard Richard Gifford Roger Fitz Reinfrai for Kent Surrey Southampton Sussex Barkshire Oxford William Fitz-Steeven Bertam de Uerdun Turstan Eitz-Simon for Hereford Glocester Worcester Shropshire Ralph Fitz-Steeven William Ruffus Gilbert Pipard for Wiltshire Dorsetshire Somersetshire Devonshire Cornwall Robert de Wals. Ralph de Glanville Robert Pikenot for York Richmond Lancashire Copland Westmoreland Northumberland Cumberland These he made to take an Oath that they would themselves bona fide in good faith and without any deceit or trick 't is the same Author whose words I make use of keep the under-written Assizes and cause them inviolably to be kept by the men of the Kingdom He mentions them under this specious Title The ASSISES of King HENRY made at Clarendon and renewed at Northampton 66. If any one be called to do right or be served with a Writ before the Justices of our Lord the King concerning Murder or Theft or Robbery or the receiving and harbouring of those who do any such thing or concerning Forgery or wicked setting fire of houses c. let him upon the Oath of twelve Knights of the Hundred or if there be no Knights there then upon the Oath of twelve free and lawful men and upon the Oath of four men out of each Village of the Hundred let him go to the Ordeal of Water and if he perish i. e. sink let him lose one foot The Knights who are wanting here are perhaps those who hold by Knights service or if you had rather that hold by Fee betwixt whom and those who served in War for wages or pay which in the Books of Fees are called Solidatae the same peradventure as by Caesar are termed Soldurii that is Soldiers by Nicolaus Damascenus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by our Monks Bracton Otho Frisingensis and Radevicus in the Camp Laws of Barbarossa are styled Servientes that is Serjeants there is an apparent difference both of them being placed far below the dignity of those honorary Knights who are called Equites aurati But yet I do very well know that these honorary Knights also were of old time and are now by a most certain right called forth to some Tryals by Jury To the Kings Great or Grand Assise I say and to a Suit of Law contested when a Baron of Parliament is Party on one side i. e. Plaintiff or Defendant To the Assise in that it is the most solemn and honourable way of Tryal and that which puts an utter end to the claim of the Party that is cast To such an unequal suit that there may be some equality of Name or Title as to some one at least of the Judges for the Jury or twelve men are upon such occasion Judges made and as to the more honourable of the two parties whether Plaintiff or Defendant For the Peers of Parliament who are the greater Nobles amongst whom by reason of their Baronies Arch-Bishops and Bishops heretofore a great many Abbots such as are Dukes Marquesses Earls Viscounts and Barons who though they be distinguished by Order and honorary Titles yet nevertheless they sit in Parliament only as they are Barons of the Realm And those who at the Kings pleasure are called in by Letters of summons as Lawyers term it are styled Chevaliers not Barons For that of Chevalier was a Title of Dignity this of Baron anciently rather of Wealth and great Estate Which Title only such Writs of Summons bestowed till Richard the seconds time who was the first that by Patent made John Beaâ—champ of Holt Baron of Kiderminster Now both ways are in fashion 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 67. AT Northampton it was added for the rigour of Justice remember what was said in the foregoing Chapter that he should in like manner lose his right Hand or Fist with his Foot and forswear the Realm and within Forty Dayes go out of the Kingdom into banishment He had the favour of Forty Dayes allowed him so saith Bracton that in the mean time he might get help of his friends to make provision for his Passage and Exile And if upon the tryal by water he be clean i. e. innocent let him find pledges and remain in the Realm unless he be arighted for Murder or any base Felony by the Community or Body of the County and of the Legal Knights of the Countrey concerning which if he be arighted in manner aforesaid although he be clean by the tryal of Water nevertheless let him quit the Realm within Forty Dayes and carry away his Chattels along with him saving the right of his Lords and let him forswear the Realm at the mercy of our Lord the King Here let me say a little concerning the Tryal by Fire and Water or the Ordeals It is granted that these were the Saxons wayes of tryal rashly and unadvisedly grounded upon Divine Miracle They do more appertain to Sacred Rites than to Civil Customs for which reason we past them by in the former Book and this place seemed not unseasonable to put the Reader in mind of them He who is accused is bound to clear himself 't is Ralph Glanvill writes this by the Judgement of God to wit by hot burning Iron or by Water according to the different condition of men by burning hot Iron if it be a free-man by Water if he be a Countrey-man or Villain The party accused did carry in his hand a piece of Iron glowing hot going for the most part two or three steps or paces along or else with the soles of his feet did walk upon red hot Plough-shares or Coulters and those according to the Laws of the Franks and Lombards nine in number The Lady Emme the Confessor's Mother being impeached of Adultery with Aldwin Bishop of Winton was wonderfully cleared by treading upon so many and is famous for it in our Histories being preserved safe from burning and proved innocent from the Crime There were two sorts of watery Ordeal or tryal by Water to wit cold or scalding hot The party was thrown into the cold water as in some places at this day Witches are used he who did not by little and little sink to the bottom was condemned as guilty of the Crime as one whom that Element which is the outward sign
in the Sacrament of Regeneration did not admit into its bosome As to scalding Water ones arm in that manner thrust in up to the elbow made a discovery of the truth and Aelstan a Monk of Abendon afterward Bishop of Shirburn thrusting in his bare Hand into a boiling Cauldron shewed himself with some pride to his Abbot But that they say that Rusticks or Vassals only were tryed by Water for Water is ascribed to the earthly and ignoble nature Fire to the heavenly so that from the use of Fire peculiar to man Firmianus Lactantius hath fetcht an argument for the Immortality of the Soul that this is not altogether so true is made out by that one example of John a Noble and Rich old man who in the time of King Henry the Second when being charged with the death of his Brother the Earl of Ferrers he could not acquit himself by the Watery Tryal was hang'd on a Gallows Whence or by what means both these Customs were brought in among Christians 't is none of my business to make an over strait inquiry I remember that Fire among the Ancients was accounted purgative and there is one in a Tragedy of Sophocles intitled Antigone who of his own accord profest to King Creon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That in his hands be red-hot gads would kéep And over burning gleads would bare-foot créep â—o shew himself innocent as to the Burial of Polynices I pass by in silence that Pythagorical opinion which placeth Fire in the Centre of the Universe where Jupiter hath his Prison which Fire some however the Peripateticks stiffly oppose it would have to be in plain terms the Sun 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Who all things overlooks and all things hears Yet I shall not omit this that in the holy Bible the great and gracious God hath of a truth discovered himself to mortal conception in the very name of Fire 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as a thing agreeable to Divinity as saith John Reuchlin and that S. Paul hath according to the Psalmists mind stiled the Ministers of God a flame of fire And indeed to abuse the holy Scriptures by mis-interpreting them is a custom too ancient and too too common Homer and Virgil both sing of Imperjuratam Stygiamque paludem Dii cujus jurare timent fallere numen that is Th' unperjur'd Stygian lake Whose name the Gods do fear in vain to take We read of the Infants of the Celts 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Try'd in the streams of sacred Flood Whether of right or of baâ—e blood as it is in the Greek Epigrams of the fountains of Sardinia in Solinus of the moist Februa or purifications by water in Ovids Fastorum and of those Rivers that fell from Heaven and their most wonderful and hidden natures among Natural Philosophers But most of these things were not known peradventure in our Ordeals Yet Martin Del Rio a man of various Reading and exquisite Learning hath in his Magical Inquiries offered a conjecture that the tryal by Water crept into use from a paltry imitation of the Jews Cup of Jealousie Truth is a great many instances both of this way of trying by Water and of that by Fire are afforded by the Histories of the Danes Saxons Germans Franks Spaniards in a word of the whole Christian World An quia cunctarum concordia semina rerum Sunt duo discordes Ignis Vnda dei Junxerunt elementa Patres was it saith the Poet 'Cause the two diff'ring Gods Alwayes at ods That of Water that of Fire Which yet in harmony conspire The seeds of all things fitly joyn'd Therefore our Fathers have these two combin'd Or was it because that the Etymologie of the Word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Hashamaim that is Heaven for the Heavens themselves were the feigned Gods of the Gentiles some are pleased with the deriving it from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Esh i. e. Fire and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Maim i. e. Water Let some more knowing Janus tell you 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 For my part I shall not this game pursue Why should I lose my time and labour too The superstitions and fopperies the rites and usages the lustrations and purifyings the Prayers and Litanies and the solemn preparations in consecrating and conjuring the Water c. you have in Will. Lambard in his Explications of Law terms and in Matthew Parker Arch-Bishop of Canterbury in his Antiquities of the Brittish Church Both of them together with that other of single Combat or Duel for that also was reckoned among the Ordeals were judged by the Church of Rome to be impious customs and it is long since that they have been laid aside and not put in practice among the common ordinary wayes of peoples purging and clearing themselves Well now let me come back to my own Country again and return to Northampton 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 68. LEt it be lawful for no man neither in Borough nor in Village or place of entertainment to have or keep in his house beyond one night any stranger whom he will not hold to right that is answer for his good behaviour unless the person entertain'd shall have a reasonable Essoin or excuse which the Master or Host of the house is to shew to his neighbours and when the Guest departs let him depart in presence of the neighbours and in the day time Hither belongs that of Bracton He may be said to be of ones family who shall have lodged with another for the space of three nights in that the first night he may be called Uncuth i. e. Unknown a Stranger but the second night Gust i. e. a Guest or Lodger the third night Hogenhine I read Hawan man i. e. in Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Latin Familiaris one of the family 69. If any one shall be seised for Murder or for Theft or Robbery or Forgery and be knowing thereof i. e. shall confess it or for any other Felony which he shall have done before the Provost the Master or Bailiff of the Hundred or Borough and before lawful men he cannot deny it afterwards before the Justices And if the same person without Seisin with Seisin in this place is the same as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as we commonly say in our Language taken with the manner shall recognize or acknowledge any thing of this nature before them this also in like manner he shall not be able to deny before the Justices 70. If any one shall dye holding in Frank
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  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 ostendit 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  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 Brothor 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 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 〈◊〉 among the Romans was the God of the Threshold qui limentis i. e. liminibus prâ—est but it may be taken
Besides is it rational to imagine that the King whose absolute right by Law it is to convene the Estates when and where he thinks fit to call and dissolve Parliaments as he pleases in a word that He in whose Name all Justice is administred in whose Hands the Militia is and by whose Authority alone the Subjects can take up Arms should stand only in a Co-ordination of power with any other persons whatsoever or however assembled or associated within his Dominions This flaw I could not but take notice of in our Great Author and that only with an intention to undeceive the unwary Reader and not to reflect upon his Memory who though he kept along a great while with the Long Parliament yet never appeared in action for them that ever I heard much less used or owned that virulence and violence which many others of that ill Body of men judged necessary for their proceedings CHAP. XX. Pag. 96. lin 15. Alderman of England The word Alderman in Saxon Ealdorman hath various acceptions so as to signifie all sorts almost of Governours and Magistrates So Matth. 20. 25. the Princes of the Gentiles in the Saxon translation are called Ealdormen and Holofernes I remember the General of the Assyrian Army is in an Old English Translation called the Alderman of the Army So Aethelstan whose younger Son this Ailwin was being Duke or Captain General of the East-Saxons is in this Book of Ramsey styled Alderman The most proper importance of the word bears up with the Latin Senator i. e. Parliament-man as the Laws of S. Edward make out In like manner say they heretofore among the Britons in the times of the Romans in this Kingdom of Britanny they were called Senators who afterwards in the times of the Saxons were called Aldermen not so much in respect of their Age as by reason of their Wisdom and Dignity in that some of them were but young men yet were skilled in the Law and beside that were experienced persons Now that Alderman of England as Ailwin here was had to do in affairs of Justice appears by the foresaid Book of Ramsey where it is said that Ailwin the Alderman and Aedric the Kings Provost sate Judges in a certain Court The Alderman of the County our Author makes to be the same as the Earl or Lord of the County and Spelman saith it is hard to distinguish but at length placeth him in the middle betwixt the Count and Viscount He and the Bishop kept Court together the one for Temporals the other for Spirituals The Title goes lower still to denote a Mayor or Bailiff of a Corporation a Bailiff of a Hundred c. Lin. 30. Healf-koning It was an oversight or slip of memory in our Author to say that Ailwin was so called when the Book of Ramsey tells us it was his Father Aethelstan who was of that great power and diligence that all the business of the Kingdom went through his hands and was managed as he pleased that had that Nick name given him therefore Lin. 36. The Graves Our Author makes them subordinate to the Aldermen of Counties but in the Laws of the Confessor they appear to be muchwhat the same There we read And as they are now called Greves who are put in places of Rule over others so they were anciently among the English called Ealdermen Indeed the word Greve or Reev for it is all one is of as various use as that other of Alderman is In Saxon it is gerefa from gerefen and reafen to take or carry away to exact or gather Whence this Officer Graphio or Gravius from the Saxon is in other Latin called Exactor regius and by reason that the Sheriff gathered the Kings Fines and other Duties and returned them to the Exchequer he was called the Shire-greve or Shire-reev that is the Gatherer of the County But the truth is that Greve or Reev came at last in general to signifie any Ruler or Governour set over any place almost whatever as the same word Grave doth among the Dutch So a Shire-greve or bihgerefa the High Sheriff of a County a Port-greve the Governour of a City or Port. So the Lord Mayor of London was called formerly Tun-greve the Bailiff of a Town or Mannor Sometime Greve is taken for a Count or Earl as Alderman is CHAP. XXI Pag. 98. lin 22. For Toll and Gabell In the Latin pro theolonio gablo Now telonium from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 properly signifies the place where the Officers of the Customs receive the Kings duties but is used also for a duty paid for the maintenance of Bridges and River-Banks So Hotoman But in our Law it is taken for the Toll of a Market or Fair. And Gablum or Gabellum a Gabell from the Saxon gafol or gafel signifies any Impost upon Goods as that in France upon Salt c. also Tribute Custom any kind of Tax or Payment c. Lin. 32. Through the Streets of Coventry There is a famous Tradition among the people of that Town concerning this matter that the Lady being to ride naked only covered all over with her hair had given order for the more decent performance of her Procession that all the Inhabitants should that day keep their Shops and Doors and Windows shut But that two men tempted by their Curiosity to do what fools are wont to do had some such penalty I know not what it was inflicted upon them as Actaon had for the like offence And they now stand in some publick place cut out of Wood or Stone to be shewn to any stranger that comes thither like the Sign of the Two Logger-heads with the same Motto belike Nous sommes trois Pag. 99. lin 7. Brought in my Court a certain Toper In the Latin attulit in curiâ meâ quandam Toper I know what the adverb Toper signifies among the ancient Latines but what the word means here I confess I am in the dark It doth certainly stand for some thing I was thinking a Taper which he brought with him into Court and sware upon it as he should have done upon the holy Gospels I cannot imagine that by quandam Toper shold be intended some Woman or Girl whose Name was Toper whom he brought along with him and in defiance to the Court laying his hand upon her took his Oath as formally as if he had done it upon the holy Evangelists Reader ONe thing I forgot to acquaint thee with in the Preface that whereas the Author himself had divided each Book into several Sections which 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