rules ne gouvernes per la Loy Civil that is inasmuch as the Realm of England was not before this time nor in the intention of our said Lord the King and the Lords of Parliament ever shall be ruled or governed by the Civil Law And hereupon the persons impleaded are sentenced to be banished But here is an end of Stephen He fairly dyed 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Kings Court A Clergyman convict out of the Churches Protection None to go out of the Realm without the Kings leave This Repealed by King John Excommunicate Persons to find Surety Laymen how to be impleaded in the Ecclesiastical Court A Lay-Jury to swear there in what case No Homager or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 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-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-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
all Gelds The Saxon word geld or gild signifies a Tribute or Tax an Amercement a payment of money and money it self whence I doubt not but the best sort of money was called Gold It is from the Verb geldan or gyldan to pay In Latin it is Geldum and not Gilda as Cowell writes it For this signifies quite another thing a Fraternity or Company of Merchants or the like Whence a Gild-hall that is the Hall of the Gild or Society such as was once the Stilyard called Gildhalla Teutonicorum the Gild-hall for the Dutch Merchants from the Hanse-Towns CHAP. VII Pag. 63. lin 25. Iphis and Ianthis and Ceneus Persons mention'd by Ovid who changed their Sex from Female to Male. Iphis was a Maid of Creet who after her Metamorphosis when she turn'd to Man took Ianthe to Wife and Caenis for that was her Maiden Name was a Thessalian Girl whom Neptune made a Whore of first and then at her request a Man who thenceforward went by the Name of Caeneus Lin. 34. Cheats whom they commonly call Coyners In Malmesbury's Latin Trapezitas quos vulgò Monetarios vocant Which bare citation is all the account that Spelman gives of the word Monetarius It doth properly signifie an Officer of the Mint that makes and coyns the Kings money a Monier But here by the Historian's implying that such fellows as this Law was made against were falsarii Cheats and by our Author 's terming of them adulteratores monetae Counterfeiters of Coyn we must understand them to be False Coyners Clippers Washers Imbasers of the Kings Coyn and the like And therefore I render'd trapezitas which otherwise is a word of innocent meaning for Money-Changers Bankers c. in the Historian's sense Cheats CHAP. VIII Pag. 65. lin 24. Every Hide of Land It is so called from the Saxon word hyden to cover so that thus it would be the same as Tectum in Latin a Dwelling-house And thus I question not but there are several houses called The Hide for I know one or two my self so called that is the Capital Messuage of the Estate Nor is it so confined to this sense but that it takes in all the Lands belonging to the Messuage or Manour-house which the old Saxons called hidelandes and upon some such account no doubt Hidepark had its name as a Park belonging to some great House Now as to the quantity how much a Hide of land is it is not well agreed Some reckon it an hundred Acres others thereabouts by making it contain four Yardlands every Yardland consisting of twenty four Acres The general opinion is that it was as much as could be ploughed with one Plow in a year terra unius aratri culturae sufficiens And thus it should be much what the same as Carrucata terrae i. e. a Plough-land From Bede who translates it familia they gather it was so much as could maintain a family There is mention made of these Hides in the Laws of King Ina an hundred years before King Alfred who divided the Countrey into Counties or Shires And Taxes and Assessments were wont to be made according to these Hides up as high as King Ethelred's time in the year of our Lord 1008. Since the Conquest William the First had six shillings for every Hide in England Rufus four Henry the First here three for the marriage of his daughter Pag. 66. lin 8. This right is called Wreck i. e. by which the King claims shipwrack't goods cast on shoar For though by the Law of Nature such things as being nullius in bonis having no Owner every one that finds them may seem to have a right to them yet by the Law of Nations they are adjudged to the Prince as a special priviledge by reason of his dignity Now Wreck or as the French call it Varec properly signifies any thing that is cast on shoar as Amber precious Stones Fishes c. as well as shipwrack't goods from the Saxon wraec i. e. any thing that is flung away and left forlorn though use hath limited the word to the later sense CHAP. IX Pag. 68. lin 6. The Roman Laws were banisht the Realm I suppose there may be some word missing or mistaken in the Latin à regno jussae sunt leges Romanae But that which follows the forbidding of the Books obliged me to that interpretation for why should the Books of those Laws be prohibited if the Laws themselves were as the Latin reading seems to import ordered and ratified by the Realm Wherefore I suppose some mistake or omission and for à regno jussae read à regno pulsae or exulare jussae c. unless you would like to have it thus rendred commanded out of the Kingdom which I confess would be a very odd unusual construction CHAP. X. Pag. 69. lin 39. Three hundred Marks of Gold A Mark weigh'd eight ounces and as Cowell states it out of Stow it came to the value of 16 l. 13 s. 4 d. At this rate three hundred Marks of Gold come to five thousand Pound and to every Bishop five Marks supposing only ten Bishops come to 833 l. 6 s. 8 d. which is a very unlikely summ in this business 'T is true the value of it as of other Coyns and summs might vary And so we find in Spelman that an uncertain Author reckons a Mark of Gold to be worth fifty Marks of Silver But then 't is as uncertain what Marks of Silver he means For if they be such as ours are and as they were in King John's time at 13 s. 4 d. then a Mark of Gold will be of the value of 33 l. 6 s. 8 d. which is just double to the former value of 16 l. 13 s. 4 d. which being resolved into Marks of Silver makes but 25. But in ancient times a Mark of Silver was only 2 s. 6 d. so that fifty of them will make but 6 l. 5 s. Another instance we meet with where one Mark of Gold is accounted equivalent to ten Marks of Silver which taking a Mark for 13 s. 4 d. comes to 6 l. 13 s. 4 d. Another where nine Marks of Silver pass for one Mark of Gold in a payment to the King which is just six pound And these three last accounts agree pretty well together Taking the middlemost of the three viz. a Mark of Gold at ten Marks of Silver thus the above named summ of three hundred Marks of Gold that is three thousand Marks of Silver amounts to two thousand Pound and the five Marks to every Bishop supposing but ten Bishops come to 333 l. 6 s. 8 d. But if we take these Marks of Silver at 2 s. 6 d. the account will grow much less For ten such Marks are but 1 l. 5 s. so that the three hundred Marks of Gold at this rate will come but to 375 l. Sterling But that these Marks of the ancient and lower estimate are not here intended may probably enough be gathered from one passage more
the whole Book p. 13 CHAP. X. The Druids reckoning of time An Age consists of thirty Years What Authors treat of the Druids Their Doctrines and Customs savour of Pythagoras and the Cabbalists They were the eldest Philosophers and Lawyers among the Gentiles Some odd Images of theirs in Stone in an Abby near Voitland described p. 15 CHAP. XI The Britans and Gauls had Laws and Customs much alike and whence that came Some things common to them both set down in relation to the breeding of their Children the Marrying of their Wives the Governing of their Families burning Women that killed their Husbands and burning some Servants with the dead Master for company Together with some Remarks of their publick Government p. 16 CHAP. XII Women admitted to publick debates A large commendation of the Sex together with a vindication of their fitness to govern against the Salick Law made out by several examples of most Nations p. 18 CHAP. XIII Their putting themselves under protection by going into great mens service Their Coins of money and their weighing of it Some sorts of flesh not lawful to be eaten by them p. 21 CHAP. XIV Community of Wives among the Britans used formerly by other Nations also Chalcondylas his mistake from our Civil Custom of Saluting A rÄ—buke of the foolish humour of Jealousie p. 22 CHAP. XV. An account of the British State under the Romans Claudius wins a Battel and returns to Rome in Triumph and leaves A. Plautius to order affairs A Colony is sent to Maldon in Essex and to several other places The nature of these Colonies out of Lipsius Julius Agricola's Government here in Vespasian's time p. 24 CHAP. XVI In Commodus his time King Lucy embraces the Christian Religion and desires Eleutherius then Pope to send him the Roman Laws In stead of Heathen Priests he makes three Arch-Bishops and twenty eight Bishops He endows the Churches and makes them Sanctuaries The manner of Government in Constantine's time where ends the Roman account p. 27 CHAP. XVII The Saxons are sent for in by Vortigern against the Scots and Picts who usurping the Government set up the Heptarchy The Angles Jutes Frisons all called Saxons An account of them and their Laws taken out of Adam of Bremen p. 29 CHAP. XVIII The Saxons division of their people into four ranks No person to marry out of his own rank What proportion to be observed in Marriages according to Policy Like to like the old Rule Now Matrimony is made a matter of money p. 30 CHAP. XIX The Saxons way of judging the Event of War with an Enemy Their manner of approving a proposal in Council by clattering their Arms. The Original of Hundred-Courts Their dubbing their Youth into Men. The priviledge of young Lads Nobly born The Morganheb or Wedding-dowry p. 32 CHAP. XX. Their severe punishments of Adultery by maiming some parts of the body The reason of it given by Bracton The like practised by Danes and Normans p. 33 CHAP. XXI The manner of Inheriting among them Of deadly Feuds Of Wergild or Head-money for Murder The Nature of Country-Tenures and Knights Fees p. 36 CHAP. XXII Since the return of Christianity into the Island King Ethelbert's Law against Sacriledge Thieves formerly amerced in Cattel A blot upon Theodred the Good Bishop of London for hanging Thieves The Country called Engelond by Order of King Egbert and why so called The Laws of King Ina Alfred Ethelred c. are still to be met with in Saxon. Those of Edward the Confessor and King Knute the Dane were put forth by Mr. Lambard in his Archaeonomia p. 37 CHAP. XXIII King Alfred divides England into Counties or Shires and into Hundreds and Tythings The Original of Decenna or Court-leet Friburg and Mainpast Forms of Law how People were to answer for those whom they had in Borgh or Mainpast p. 39 CHAP. XXIV King Alfred first appointed Sheriffs By Duns Scotus his advice he gave Order for the breeding up of Youth in Learning By the way what a Hide of Land is King Edgar's Law for Drinking Prelates investiture by the Kings Ring and Staff King Knute's Law against any English-man that should kill a Dane Hence Englescyre The manner of Subscribing and Sealing till Edward the Confessor's time King Harold's Law that no Welch-man should come on this side Offa's Dike with a weapon p. 41 CHAP. XXV The Royal Consorts great Priviledge of Granting Felons Estates forfeited to the King Estates granted by the King with three Exceptions of Expedition Bridge and Castle The Ceremony of the Kings presenting a Turf at the Altar of that Church to which he gave Land Such a Grant of King Ethelbald comprized in old Verse p. 43 THE CONTETNS BOOK II. CHAP. I. WIlliam the Conquerour's Title He bestows Lands upon his followers and brings Bishops and Abbots under Military service An account of the old English Laws called Merchenlage Danelage and Westsaxen-lage He is prevailed upon by the Barons to govern according to King Edward's Laws and at S. Albans takes his Oath so to do Yet some new Laws were added to those old ones p. 47 CHAP. II. The whole Country inrolled in Dooms-day Book Why that Book so called Robert of Glocester's Verses to prove it The Original of Charters and Seals from the Normans practised of old among the French Who among the Romans had the priviledge of using Rings to seal with and who not p. 51 CHAP. III. Other wayes of granting and conveying Estates by a Sword c. particularly by a Horn. Godwin's trick to get Boseham of the Arch-Bishop of Canterbury Pleadings in French The French Language and Hand when came in fashion Coverfeu Laws against taking of Deer against Murder against Rape p. 54 CHAP. IV. Sheriffs and Juries were before this time The four Terms Judges to act without appeal Justices of Peace The Kings payments made at first in Provisions Afterwards changed into Mony which the Sheriff of each County was to pay in to the Exchequer The Constable of Dover and Warder of the Cinque Ports why made A disorder in Church-affairs Reformed p. 56 CHAP. V. William Rufus succeeds Annats now paid to the King Why claimed by the Pope No one to go out of the Land without leave Hunting of Deer made Felony p. 59 CHAP. VI. Henry the First why called Beauclerk His Letters of Repeal An Order for the Relief of Lands What a Hereot was Of the Marriage of the Kings Homagers Daughter c. Of an Orphans Marriage Of the Widows Dowry Of other Homagers the like Coynage-money remitted Of the disposal of Estates The Goods of those that dye Intestate now and long since in the Churches Jurisdiction as also the business of Wills Of Forfeitures Of Misdemeanors Of Forests Of the Fee de Hauberk King Edward's Law restored p. 60 CHAP. VII His order for the restraint of his Courtiers What the punishment of Theft Coyners to lose their Hands and Privy members Guelding a kind of death What Half-pence and
Farthings to pass The right measure of the Eln. The Kings price set for provisions p. 63 CHAP. VIII The Regality claim'd by the Pope but within a while resumed by the King The Coverfeu dispensed with A Subsidy for marrying the Kings daughter The Courtesie of England Concerning Shipwrack A Tax levied to raise and carry on a War p. 65 CHAP. IX In King Stephen's Reign all was to pieces Abundance of Castles built Of the priviledge of Coining Appeals to the Court of Rome now set on foot The Roman Laws brought in but disowned An instance in the Wonder-working Parliament p. 67 CHAP. X. In King Henry the Seconds time the Castles demolished A Parliament held at Clarendon Of the Advowson and Presentation of Churches Estates not to be given to Monasteries without the Kings leave Clergymen to answer in the Kings Court A Clergyman convict out of the Churches Protection None to go out of the Realm without the Kings leave This Repealed by King John Excommunicate Persons to find Surety Laymen how to be impleaded in the Ecclesiastical Court A Lay-Jury to swear there in what case No Homager or Officer of the Kings to be Excommunicated till He or his Justice be acquainted p. 69 CHAP. XI Other Laws of Church affairs Concerning Appeals A Suit betwixt a Clergy-man and a Lay-man where to be tryed In what case one who relates to the King may be put under an Interdict The difference betwixt that and Excommunication Bishops to be present at the Tryals of Criminals until Sentence of Death c. pass Profits of vacant Bishopricks c. belong to the King The next Bishop to be chosen in the Kings Chappel and to do Homage before Consecration Deforcements to the Bishop to be righted by the King And on the contrary Chattels forfeit to the King not to be detained by the Church Pleas of debts whatsoever in the Kings Court Yeomens Sons not to go into Orders without the Lords leave p. 72 CHAP. XII The Statutes of Clarendon mis-reported in Matthew Paris amended in Quadrilegus These Laws occasioned a Quarrel between the King and Thomas a Becket Witness Robert of Glocester whom he calls Yumen The same as Rusticks i. e. Villains Why a Bishop of Dublin called Scorch-Uillein Villanage before the Normans time p. 74 CHAP. XIII The Poet gives account which of those Laws were granted by Thomas a Becket which withstood Leudemen signifies Lay-men and more generally all illiterate Persons p. 77 CHAP. XIV The Pope absolves Thomas a Becket from his Oath and damns the Laws of Clarendon The King resents it writes to his Sheriffs Orders a Seisure Penalties inflicted on Kindred He provides against an Interdict from Rome He summons the Bishops of London and Norwich An account of Peter Pence p. 79 CHAP. XV. A Parliament at Northampton Six Circuits ordered A List of the then Justices The Jury to be of twelve Knights Several sorts of Knights In what cases Honorary Knights to serve in Juries Those who come to Parliament by right of Peerage sit as Barons Those who come by Letters of Summons are styled Chevaliers p. 81 CHAP. XVI The person convict by Ordeal to quit the Realm within Forty dayes Why Forty dayes allowed An account of the Ordeals by Fire and Water Lady Emme clear'd by going over burning Coulters Two sorts of tryal by Water Learned conjectures at the rise and reason of these customs These Ordeals as also that of single Combat condemned by the Church p. 84 CHAP. XVII Other Laws Of entertaining of strangers An Uncuth a Gust a Hogenhine what of him who confesseth the Murder c. Of Frank pledge Of an Heir under age Of a Widows Dowry Of taking the Kings fealty Of setting a time to do homage Of the Justices duty Of their demolishing of Castles Of Felons to be put into the Sheriffs hands Of those who have departed the Realm p. 87 CHAP. XVIII Some Laws in favour of the Clergy Of forfeitures on the account of Forest or hunting Of Knights fees Who to bear Arms and what Arms. Arms not to be alienated No Jew to bear Arms. Arms not to be carryed out of England Rich men under suspicion to clear themselves by Oath Who allowed to swear against a Free-man Timber for building of Ships not to be carryed out of England None but Free-men to bear Arms. Free-men who Rusticks or Villains not such p. 90 CHAP. XIX Of Law-makers Our Kings not Monarchs at first Several of them in the same County The Druids meeting-place where Under the Saxons Laws made in a general Assembly of the States Several instances This Assembly under the Normans called Parliament The thing taken from a custome of the ancient Germans Who had right to sit in Parliament The harmony of the Three Estates p. 93 CHAP. XX. The Guardians of the Laws who In the Saxons time seven Chief One of the Kings among the Heptarchs styled Monarch of all England The Office of Lord High Constable Of Lord Chancellor ancient The Lord Treasurer Alderman of England what Why one called Healfkoning Aldermen of Provinces and Graves the same as Counts or Earls and Viscounts or Sheriffs Of the County Court and the Court of Inquests called Tourn le Viscount When this Court kept and the original of it p. 95 CHAP. XXI Of the Norman Earls Their Fee Their power of making Laws Of the Barons i.e. Lords of Manours Of the Court-Baron It s rise An instance of it out of Hoveden Other Offices much alike with the Saxons p. 98 THE FIRST BOOK OF THE ENGLISH JANUS From the Beginning of the BRITISH Story down to the NORMAN Conquest CHAP. I. The counterfeit Berosus with the Monk that put him forth both censured The Story of Samothes the first Celtick King The bounds of Celtica From Samothes say they the Britans and Gauls were called Samothei For which Diogenes Laertius is falsly quoted the word in him being Semnothei THERE came forth and in Buskins too I mean with Pomp and State some parcels of years ago and is still handed about every where an Author called Berosus a Chaldee Priest take heed how you suffer your self to believe him to be the same that Flavius Josephus so often up and down quotes for a witness with a Commentary of Viterbiensis Or rather to say that which is the very truth John Annius of Viterbium a City of Tuscany a Dominican Frier playing the Leger-de-main having counterfeited Berosas to put off his own strange stories hath put a cheat upon the Lady Muse who is the Governess of Antiquities and has hung a Bantling at her back After the Genealogies of the Hebrews drawn down by that Author whoever he be according to his own humour and method for fear he should not be thought to take in the Kingdoms and Kings of the whole Universe and the Etymologies of Proper Names by whole-sale as we say as if he had been born the next day after Grandam Ops was delivered of Jupiter he subjoyns SAMOTHES the very same who
Verses which Joseph Scaliger has rescued out of its rust and mouldiness has it Mars pater nostrae gentis tutela Quirine Et magno positus Caesar uterque polo Cernitis ignotos Latiâ sub Lege Britannos c. that is in English Sire Mars and Guardian of our State Quirinus hight after thy fate And Caesars both plac'd near the Pole With your bright Stars ye do behold And th' unknown Britans aw T' observe the Roman Law The stately Seraglio or Building for the Emperours Women at Venta Belgarum a City at this day called Winchester and other things of that kind I let pass In the time of the Emperours Vespasian Titus and Domitian Julius Agricola Tacitus his Wives Father was Lord Deputy Lieutenant here He encouraged the Barbarous people to Civil fashions insomuch that they took the Roman habit for an honour and almost every body wore a Gown and as Juvenal has it in his Satyr Gallia Causidicos docuit facunda Britannos The British Lawyers learnt of yore From the well-spoken French their lore T'imply hereafter we should sée Our Laws themselves in French would be CHAP. XVI In Commodus his time King Lucy embraces the Christian Religion and desires Eleutherius then Pope to send him the Roman Laws In stead of Heathen Priests he makes three arch-Arch-Bishops and twenty eight Bishops He endows the Churches and makes them Sanctuaries The manner of Government in Constantine's time where ends the Roman account IN Commodus the Emperours time the Light of the Gospel shone afresh upon the Britans Lucius the first King of the Christians for the Romans as in other places so in Britany made use of even Kings for their instruments of slavery by the procurement of Fugatius and Damianus did happily receive from Pope Eleutherius the Seal of Regeneration that is Baptism and the Sacred Laws of eternal salvation He had a mind also to have the Civil Laws thence and desired them too Ovid long since had so prophesied of Rome Juráque ab hâc terrâ caetera terra petet that is And from this Countrey every other Land Their Laws shall fetch and be at her command Now Eleutherius wrote him this answer You have desired of us that the Roman and Caesarean Laws may be sent over to you that you may as you desire use them in your Kingdom of Britanny The Roman and Caesarean Laws we may at all times disprove of but by no means the Law of God For you have lately through Divine mercy taken upon you in the Kingdom of Britanny the Law and Faith of Christ you have with you in the Kingdom both pages of Holy Writ to wit the Old and New Testament Out of them in the name and by the favour of God with the advice of your Kingdom take your Law and by it through Gods permission you may govern your Kingdom of Britanny Now you for your part are Gods Vicegerent in your Kingdom Howsoever by injury of time the memory of this great and Illustrious Prince King Lucy hath been imbezill'd and smuggled this upon the credit of the ancient Writers appears plainly that the pitiful fopperies of the Pagans and the Worship of their Idol-Devils did begin to flag and within a short time would have given place to the Worship of the true God and that Three Arch-Flamens and Twenty Eight Flamens i. e. Arch-Priests being driven out there were as many arch-Arch-Bishops and Bishops put into their rooms the Seats of the arch-Arch-Bishops were at London at York and at Caerleon in Wales to whom as also to other Religious persons the King granted Possessions and Territories in abundance and confirmed his Grants by Charters and Patents But he ordered the Churches as he of Monmouth and Florilegus tell us to be so free that whatsoever Malefactor should fly thither for refuge there he might abide secure and no body hurt him In the time of Constantine the Emperour whose Pedigree most people do refer to the British and Royal Blood the Lord President of France was Governour of Britanny He together with the rest those of Illyricum or Slavonia of the East and of Italy were appointed by the Emperour In his time the Lord Deputy of Britanny whose Blazonry was a Book shut with a green Cover was honoured with the Title of Spectabilis There were also under him two Magistrates of Consular Dignity and three Chief Justices according to the division of the Province into five parts who heard and determined Civil and Criminal Causes And here I set up my last Pillar concerning the Britans and the Roman Laws in Britanny so far forth as those Writers which I have do supply me with matter CHAP. XVII The Saxons are sent for in by Vortigern against the Scots and Picts who usurping the Government set up the Heptarchy The Angles Jutes Frisons all called Saxons An account of them and their Laws taken out of Adam of Bremen AFterwards the Scots and Picts making incursions on the North and daily havock and waste of the Lands of the Provincials that is those who were under the Roman Government they send to desire of the Romans some Auxiliary Forces In the mean time Rome by a like misfortune was threatned with imminent danger by the fury of the Goths all Italy was in a fright in an uproar For the maintaining of whose liberty the Empire being then more than sinking was with all its united strength engaged and ready prepared So this way the Britans met with a disappointment Wherefore Vortigern who was Governour in Chief sent for supplies from the neighbouring Germans and invited them in But according to the Proverb Carpathius leporem He caught a Tartar for he had better have let them alone where they were Upon this account the Saxons the Angles the Jutes the Frieslanders arrive here in their Gally-Foists in the time of Theodosius the younger At length being taken with the sweetness of the soil a great number of their Countrey-men flocking over after them as there were at that time fatal flittings and shiftings of quarters all the World over and spurred on with the desire of the chief command and rule having struck up a League with the Picts they raise a sad and lamentable War against their new entertainers in whose service they had lately received pay and to make short in the end having turned the Britans out of their Ancestors Seats they advanced themselves into an Heptarchy of England so called from them Albeit they pass by various names yet in very deed they were all of them none other but Saxons A name at that time of a large extent in Germany which was not as later Geographers make it bounded with the Rivers of the Elb of the Rhine and the Oder and with the Confines of Hessen and Duringen and with the Ocean but reached as far as into the Cimbrian Chersonesus now called Jutland It is most likely that those of them that dwelt by the Sea-side came over
people Nor do they hold on never to be appeased For even Murder is expiated by a certain number of some head of Cattel and the whole Family of the murdered Person receives satisfaction Murders formerly were bought off with Head-mony called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 though one had killed a Nobleman nay the King himself as we may see in Athelstan's Constitutions But good manners I suppose have prevailed above Laws 33. The Lord imposes upon his Tenant a certain quantity of Corn or Cattel or Clothes We see here clearly enough the nature of Country Land-holders Fees or Tenures As to military or Knights Fees give me leave to set that down too Dionysius Halicarnasseus gives us a very ancient draught and model of them in the Trojans and Aborigines Florus in the Cymbrians and Lampridius in Alexander Severus Both the Northern people and the Italians do owe them to the Huns and Lombards but these later according to a more modern form Let these things suffice out of Cornelius Tacitus which belong to this Head CHAP. XXII Since the return of Christianity into the Island King Ethelbert's Law against Sacriledge Thieves formerly amerced in Cattel A blot upon Theodred the Good Bishop of London for hanging Thieves The Country called Engelond by Order of King Egbert and why so called The Laws of King Ina Alfred Ethelred c. are still to be met with in Saxon. Those of Edward the Confessor and King Knute the Dane were put forth by Mr. Lambard in his Archaeonomia BEfore that the Christian Doctrine had driven out and banished the Saxon Idolatry all these things I have hitherto been speaking of were in use Ethelbert he that was the first King not only of Kent but of all England except Northumberland having been baptized by Austin the Monk the Apostle as some call him of the English amongst other good things which by Counsel and Grant he did to his Nation 't is venerable Bede speaks these words he did also with the advice of wise men appoint for his peoples use the orders of their proceedings at Law according to the examples of the Romans Which having been written in the English tongue says he are hitherto or to this time kept and observed by them Among which orders or decrees he set down in the first place after what manner such an one should make amends who should convey away by stealth any of those things that belonged to the Church or to a Bishop or to the rest of the Orders In the Laws of some that came after him as those of King Alured who cull'd out of Ethelbert's Acts to make up his own and those of King Athelstan Thieves make satisfaction with mony accordingly as Tacitus says of the Germans That for lighter offences those that were convicted are at the rate of their penalties amerced such a number of Horses or other Cattel For as Festus hath it before Brass and Silver were coyned by ancient custom they were fined for their faults so much Cattel But those who medled with any thing sacred we read had that hand cut off with which they committed the theft Well! but am I mistaken or was Sacriledge even in the time of the Saxon Government punisht as a Capital crime There is a passage of William of Malmsbury in his Book de Gestis Pontificum that inclines me to think so Speaking of Theodred the Bishop of London when Athelstan was King he says That he had among the common people got the sirname of Theodred the Good for the eminence of his virtues Only in one thing he fell short which was rather a mistake than a crime that those Thieves which were taken at St. Edmunds whom the holy Martyr had upon their vain attempts tied with an invisible knot he means St. Edmundsbury in Suffolk which Church these Fellows having a design to rob are said by miracle to have stood still in the place as if they had been tied with Cords These Thieves I say were by his means or sufferance given up to the severity of the Laws and condemned to the Gallows or Gibbet Let not any one think that in this middle Age this Gallows or Gibbet I spoke of was any other thing than the Roman Furca upon which people hang and are strangled till they die 34. Egbert King of the West-Saxons I make use of Camdens words having gotten in four Kingdoms by conquest and devour'd the other two also in hope that what had come under the Government of one might likewise go under one name and that he might keep up the memory of his own people the Angles he gave order by Proclamation that the Heptarchy which the Saxons had possest should be called Engelond John Carnotensis writes that it was so called from the first coming in of the Angles and another some body says it was so named from Hengist a Saxon Prince There are a great many Laws of King Ina Alfred Edward Athelstan Edmund Edgar Ethelred and Knute the Dane written in the Saxon language which have lasted till these very times For King Knute gave order 't is William of Malmsbury speaks that all the Laws which had been made by former Kings and especially by his Predecessor Ethelred should under pain of his displeasure and a Fine be constantly observed For the keeping of which even now in the time of those who are called the Good people swear in the name of King Edward not that he appointed them but that he observed them The Laws of Edward who for his piety has the sirname of Confessor are in Readers hands These of the Confessor were in Latin those others of Knute were not long since put into Latin by William Lambard a learned man and one very well vers'd in Antiquity who has recovered them both and published the Saxon Original with his Translation over against it Printed by John Day at London Anno 1567. under the Title of Archaeonomia or a Book concerning the ancient Laws of the English May he have a good harvest of it as he deserves From Historians let us borrow some other helps for this service CHAP. XXIII King Alfred divides England into Countyes or Shires and into Hundreds and Tythings The Original of Decenna or Court-leet Friburg and Mainpast Forms of Law how People were to answer for those whom they had in Borgh or Mainpast 35. INgulph the Abbot of Crowland writing of King Alfred says That he was the first of all that changed the Villages or Lordships and Provinces of all England into Counties or Shires Before that it was reckoned and divided according to the number of Hides or Plough-lands by little districts or quarters He divided the Counties into Hundreds and Tythings it was long before that Honorius Arch-Bishop of Canterbury had parted the Country into Parishes to wit Anno 636. that every Native home-born lawful man might be in some Hundred and Tything I mean whosoever was â—ull twelve years of age and if any
to have it so understood 38. King Edgar like a King of good Fellows or Master of Revels made a Law for Drinking He gave order that studs or knobs of Silver or Gold so Malmsbury tells us should be fastned to the sides of their Cups or drinking Vessels that when every one knew his mark or boundary he should out of modesty not either himself covet or force another to desire more than his stint This is the only Law before the first Parliament under King James has been made against those Swill-bowls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Swabbers of drunken Feasts and lusty Rowers In full brimm'd Rummers that do ply their Oars who by their carowses tipling up Nestor's years as if they were celebrating the Goddess Anna Perenna do at the same time drink others Healths and mischief and spoil their own and the Publick 39. There was no choice of Prelates these are the words of Ingulph again that was merely free and canonical but the Court conferred all Dignities as well of Bishops as of Abbots by the Kings Ring and Staff according to his good pleasure The Election or choice was in the Clergy and the Monks but they desired him whom they had chosen of the King Edmund in King Ethelred's time was after this manner made Bishop of the Holy Island on the Coast of Northumberland And King Edgar in his Patent which he signed to the Abby of Glastenbury retained to himself and his Heirs the power of bestowing the Pastoral Staff to the Brother Elect. 40. To as many as King Knute retained with him in England to wit to the Danes for by their hands also was the Scepter of this Kingdom managed it was granted that they should have a firm peace all over so that if any of the English killed any of those men whom the King had brought along with him if he could not clear himself by the Judgment of God that is by Ordeal to wit by water and burning hot iron Justice should be done upon him But if he run away and could not be taken there should be paid for him sixty six marks and they were gathered in the Village where the Party was slain and therefore because they had not the murderer forth coming and if in such Village by reason of their poverty they could not be gathered then they should be gathered in the Hundred to be paid into the Kings Treasure In this manner writes Henry Bracton who observes that hence the business of Englishshire came into fashion in the Inquests of murder 41. Hand-Writings i.e. Patents and Grants till Edward the Confessors time were confirmed by the subscriptions of faithful Persons present a thing practised too among the Britans in King Arthur's time as John Price informs us out of a very ancient Book of the Church of Landaff Those subscriptions were accompanied with Golden Crosses and other sacred Seals or like stamps 42. King Harald made a Law that whosoever of the Welch should be found with a Weapon about him without the bound which he had set them to wit Offa's dike he should have his Right Hand cut off by the Kings Officers This dike our Chorographer tells us was cut by Offa King of the Mercians and drawn along from the mouth of the River Dee to the mouth of the River Wye for about eighty miles in length on purpose to keep the English and Welch asunder CHAP. XXV The Royal Consorts great Priviledge of Granting Felons Estates forfeited to the King Estates granted by the King with three Exceptions of Expedition Bridge and Castle The Ceremony of the Kings presenting a Turf at the Altar of that Church to which he gave Land Such a Grant of King Ethelbald comprized in old Verse THe Donations or Grants of the Royal Consort though not by the Kings Authority contrary to what the Priviledge of any other Wife is were ratified also in that Age as they were by the Roman Law Which by the Patent of Aethelswith Wife to Burghred King of the Mercians granted to Cuthwuls in the year 868. hath been long since made out by Sir Edward Coke Lord Chief Justice of the Common Pleas Where also King Ethelred's ancient Charter proves that the Estates of Felons those I mean who concern themselves in Burglaries and Robberies are forfeited to the King Having already mentioned those Hand-writings or Grants which are from one hand and t'other conveyances of Tenure the fewel of quarrels I have a mind over and above what has been said to set down also these Remarks as being to our purpose and taken from the Saxons As for instance that those are most frequent whereby Estates are conveyed to be held with the best and fairest right yet most commonly these three things excepted to wit Expedition Repairing of Bridges and Building of Castles And that those to whom the Grants were made were very seldom acquitted upon this account These three exceptions are noted by the term of a three-knotted necessity in an old Charter wherein King Cedwalla granted to Wilfrid the first Bishop of Shelsey in Sussex the Village of Paganham in the said County For though in the Grants of King Ethelulph the Church be free says Ingulph and there be a concession of all things for the release of our Souls and pardon of our sins to serve God alone without Expedition and building of Bridge and fortifying of Castle to the intent that the Clergy might wholly attend Divine Service Yet in that publick debate of Parliament in the Reign of Henry the third concerning the ancient State Freedom and Government of the English Church and concerning the hourly exactions of the Pope and the Leeches Jugglers and Decoys of Rome that strolled up and down the Country to pick Peoples Pockets to the great prejudice of the Common-wealth they did indeed stand for the priviledge of the Church and produced as Witnesses thereof the Instruments and Grants of Kings who nevertheless were not so much inclined to countenance that liberty of the Church but that as Matthew Paris observes They always reserved to themselves for the publick advantage of the Kingdom three things to wit Expedition and the repairing or making up of Bridge or Castle that by them they might withstand the incursions of the Enemy And King Ethelbald hath this form I grant that all the Monasteries and Churches of my Kingdom be discharged from publick Customs or Taxes Works or Services and Burdens or Payments or Attendances unless it be the building and repairing of Castles or Bridges which cannot be released to any one I take no notice how King Ethelred the twelfth perhaps but by no means the fifteenth wherein an Historian of ours has blundred hath signed the third year of his Reign by the term of an Olympiad after the manner of the Greek computation or reckoning As likewise I pass other things of the like kind which are many times used and practised according to the
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 Theodore 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 of Letters have set down and expressed the mark or sign of the Holy Cross. Concerning Withred and a Turf of Land in Kent Camden has the same thing And King Ethelulph is said to have offered his Patent or Deed of Gift on the Altar of the holy Apostle St Peter For a conclusion I know no reason why I may not set underneath the Verses of an old Poet wherein he hath comprised the instrument or Grant of founding an Abby which Ethelbald King of the Mercians gave to Kenulph Abbot of Crowland Verses I say but such as were made without Apollo's consent or knowledge Istum Kenulphum si quis vexaverit Anglus Rex condemno mihi cuncta catella sua Inde meis Monachis de damnis omnibus ultrà Vsque satisfaciat carcere clausus erit Adsunt ante Deum testes hujus dationis Anglorum proceres Pontificesque mei Sanctus Guthlacus Confessor Anachorita Hic jacet in cujus auribus ista loquor Oret pro nobis sanctissimus iste Sacerdos Ad tumbam cujus haec mea dona dedi Which in Rhyme dogrel will run much after this hobling rate If any English vex this Kenulph shall I King condemn to me his Chattels all Thenceforth until my Monks he satisfie For damages in Prison he shall lye Witnesses of this Gift here in Gods sight Are English Peers and Prelates of my Right Saint Guthlac Confessor and Anchoret Lies here in whose Ears these words I speak yet May he pray for us that most holy Priest At whose Tomb these my Gifts I have addrest Thus they closed their Donations or Grants thus we our Remarks of the Saxons being now to pass to the Normans THE SECOND BOOK OF THE ENGLISH JANUS From the NORMAN Conquest to the Death of King Henry II. CHAP. I. William the Conquerour 's Title He bestows Lands upon his followers and brings Bishops and Abbots under Military Service An account of the old English Laws called Merchenlage Danelage and Westsaxen-lage He is prevailed upon by the Barons to govern according to King Edward's Laws and at S. Albans takes his Oath so to do Yet some new Laws were added to those old ones WILLIAM Duke of Normandy upon pretence of a double Right both that of Blood inasmuch as Emme the Mother of Edward the Confessor was Daughter to Richard the first Duke of the Normans and withal that of Adoption having in Battel worsted Harald the Son of Godwin Earl of Kent obtain'd a large Inheritance and took possession of the Royal Government over all England After his Inauguration he liberally bestowed the Lands and Estates of the English upon his fellow-soldiers that little which remained so saith Matthew Paris he put under the yoke of a perpetual servitude Upon which account some while since the coming in of the Normans there was not in England except the King himself any one who held Land by right of Free-hold as they term it since in sooth one may well call all others to a man only Lords in trust of what they had as those who by swearing fealty and doing homage did perpetually own and acknowledge a Superior Lord of whom they held and by whom they were invested into their Estates All Bishopricks and Abbacies which held Baronies and so far forth had freedom from all Secular service the fore-cited Matthew is my Author he brought them under Military service enrolling every Bishoprick and Abbacy according to his own pleasure how many Souldiers he would have each of them find him and his Successors in time of Hostility or War Having thus according to this model ordered the Agrarian Law for the division and settlement of Lands he resolved to govern his Subjects we have it from Gervase of Tilbury by Laws and Ordinances in writing to which purpose hè proposed also the English Laws according to their Tripartite or threefold distinction that is to say Merchenlage Danlage and Westsaxenlage Merchenlage that is the Law of the Mercians which was in force in the Counties of Glocester Worcester Hereford Warwick Oxford Chester Salop and Stafford Danlage that is the Law of the Danes which bore sway in Yorkshire Derby Nottingham Leicester Lincoln Northampton Bedford Buckingham Hertford Essex Middlesex Norfolk Suffolk Cambridge Huntingdon Westsaxenlage that is the Law of the West-Saxons to which all the rest of the thirty two Counties which are all that Malmesbury reckons up in Ethelred's time did belong to wit Kent Sussex Surrey Berks Southampton Winton Somerset Dorset and Devon Some of these English Laws he disliked and laid aside others he approved of and added to them some from beyond Sea out of Neustria he means Normandy which they did of old term Neustria corruptly instead of Westrich as being the more Western Kingdom of the Franks and given by Charles the Simple to Rollo for his Daughter Gilla her portion such of them as seemed most effectual for the preserving of the Kingdoms peace This saith he of Tilbury Now this is no rare thing among Writers for them to devise that William the Conqueror brought in as it were a clear new face of Laws to all intents and purposes 'T is true this must be acknowledg'd that he did make some new ones part whereof you may see in Lambard's Archaeonomia and part of them here subjoyned but so however that they take their denomination from the English rather than from the Normans although one may truly say according to what Lawyers dispute that the English Empire and Government was overthrown by him That he did more especially affect the Laws of the Danes which were not much unlike to those of the Norwegians to whom William was by his Grand-father allied in blood I read in the Annals of Roger Hoveden And that he openly declared that he would rule by them at hearing of which all the great men of the Countrey who had enacted the English Laws were presently struck into dumps and did unanimously petition him That he would permit them to have their own Laws and ancient Customs in which their Fathers had lived and they themselves had been born and bred up in forasmuch as it would be very hard for them to take up Laws that they knew not and to give judgement according to them But the King appearing unwilling and uneasie to be moved they at length prosecuted their purpose beseeching him that for the Soul of King Edward who had after his death given up the Crown and Kingdom to him and whose the Laws were and not any others that were strangers
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 Patents signed with Crosses and subscribed with Witnesses names do give an undoubted credit and assurance to what I have said John Ross informs us that Henry Beauclerk was the first that made use of one of Wax and Matthew of Canterbury that Edward the first did first hang it at the bottom of his Royal Writings by way of Label whereas before his Predecessors fastned it to the left side Such a writing of Henry the first in favour of Anselm the last Author makes mention of and such an one of William's Duke of the Normans though a very short one and very small written Brian Twine in his Apology for the Antiquity of the famous University of Oxford the great Study and support of England and my ever highly honoured Mother saith he had seen in the Library of the Right Honourable my Lord Lumley But let a circumcised Jew or who else will for me believe that story concerning the first Seal of Wax and the first fastning of it to the Writing A great many waxen ones of the French Peers that I may say something of those in wax and Golden ones of their Kings to wit betwixt the years 600 and 700 we meet with fashioned like Scutcheons or Coats of Arms in those Patterns or Copies which Francis de Rosieres has in his first Tome of the Pedigree or Blazonry of the Dukes of Lorain set down by way of Preface Nor was it possible that the Normans should not have that in use which had been so anciently practised by the French Let me add this out of the ancient Register of Abendon That Richard Earl of Chester who flourished in the time of Henry the first ordered to sign a certain Writing with the Seal of his Mother Ermentrude seeing that being not girt with a Soldiers Belt i. e. not yet made Knight all sorts of Letters directed by him were inclosed with his Mothers Seal How what is that I hear Had the Knightly dignity and Order the singular priviledge as it was once at Rome to wear Gold-Rings For Rings as 't is related out of Ateius Capito were especially designed and ingraven for Seals Let Phoebus who knows all things out of his Oracle tell us For â—ervants or Slaves so says Justus Lipsius and remarks it from those that had been dug up in Holland and common Soldiers were allowed iron ones to sign or to seal with which therefore Flavius Vopiscus calls annulos sigillaricios i. e. seal-Rings and so your ordinary Masters of Families had such with a Key hanging at it to seal and lock up their provision and utensils But saith Ateius of the ancient time Neither was it lawful to have more than one Ring nor for any one to have one neither but for Freemen whom alone trust might become which is preserved under Seal and therefore the Servants of a Family had not the Right and Priviledge of Rings I come home to our selves now CHAP. III. Other ways of granting and conveying Estates by a Sword c. particularly by a Horn. Godwin's trick to get Boseham of the Arch-Bishop of Canterbury Pleadings in French The French Language and Hand when came in fashion Coverfeu-Laws against taking of Deer against Murder against Rape 3. AT first many Lands and Estates were collated or bestowed by bare word of mouth without Writing or Charter only with the Lords Sword or Helmet or a Horn or a Cup and very many Tenements with a Spur with a Currycomb with a Bow and some with an Arrow But these things were in the beginning of the Norman Reign in after times this fashion was altered says Ingulph I and these things were before the Normans Government Let King Edgar his Staff cut in the middle and given to Glastenbury Abbey for a testimony of his Grant be also here for a testimony And our Antiquary has it of Pusey in Berkshire That those who go by the name of Pusey do still hold by a Horn which heretofore had been bestowed upon their Ancestors by Knute the Danish King In like manner to the same purpose an old Book tells this story That one Vlphus the Son of Toraldus turned aside into York and filled the Horn that he was used to drink out of with Wine and before the Altar upon his bended knees drinking it gave away to God and to St. Peter the Prince of the Apostles all his Lands and Revenues Which Horn of his saith Camden we have been told was kept or reserved down to our Fathers memory We may see the conveyance of Estate how easie it was in those days and clear from the punctilio's of Law and withal how free from the captious malice of those petty-foggers who would intangle Titles and find flaws in them and from the swelling Bundles and Rolls of Parchments now in use But commend me to Godwin Earl of Kent who was to use Hegesander's word too great a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 catcher at Syllables and as the Comedian says more shifting than a Potters wheel Give me saith he to the Arch-Bishop of Canterbury Boseham The Arch-Bishop admiring what it was he would be at in that question saith I give you Boseham He straight upon the confidence of this deceit without any more ado entred upon an Estate of the Arch Bishops of that name on the Sea-coasts of Sussex as if it had been his own by Inheritance And with the testimony of his people about him spoke of the Arch-Bishop before the King as the donor of it and quietly enjoyed it Those things I spoke of before to wit of Sword Horn c. smell of that way of investing into Fees which we meet with in Obertus de Orto but are very unlike to that solemn ceremony which is from ancient time even still used in conveying of an Estate and delivering possession wherein a green Turf or the bough of a growing Tree is required 4. They did so much abhor the English tongue 't is the Abbot of Crowland saith it that the Laws of the Land and the Statutes of the English Kings were handled or pleaded in the French language For till the thirty sixth year of Edward the third all businesses of Law were pleaded in French That also in Schools the Rudiments of Grammatical Institution were delivered to Boys in French and not in English Also that the English way and manner of Writing was laid aside and the French mode was made use of in all Charters or Instruments and Books Indeed it was such a fault to
came in his way as he was passing by holding up their Ploughshares in token that their Husbandry was running to decay for they were put to a world of trouble upon occasion of the provisions which they carried from their own quarters through several parts of the Kingdom Thereupon the King being moved with their complaints did by the resolved advice of his Lords appoint throughout the Kingdom such persons as he knew were for their prudence and discretion fit for the service These persons going about and that they might believe their own eyes taking a view of the several Lands having made an estimate of the provisions which were paid out of them they reduced it into a sum of pence But for the total sum which arose out of all the Lands in one County they ordered that the Sheriff of that County should be bound to the Exchequer Adding this withal that he should pay it at the Scale Now the manner of paying the tryal of the weight and of the metal by Chymical operation the Melter or Coyner and the surveyor of the Mint are more largely handled and explained by my self in some other work of mine 13. That he might the more firmly retain Kent to himself that being accounted as it were the Key of England 't is the famous Mr. Camden tells the Story he set a Constable over Dover-Castle and made the same person Warden of the Cinque Ports according to the old usage of the Romans Those are Hastings Dover Hith Rumney and Sandwich to which are joyned Winchelsey and Rye as Principals and other little Towns as Members 14. To put the last hand to William I add out of the Archives this Law not to be accounted among the last or least of his William by the Grace of God King of the English to all Counts or Earls Viscounts or Sheriffs and to all French born and English men who have Lands in the Bishoprick of Remigius greeting This Remigius was the first who translated the Episcopal See from Dorchester to Lincoln Be it known unto you all and the rest of my Liege Subjects who abide in England that I by the common advice of my Arch-Bishops and the rest of the Bishops and Abbots and all the Princes of my Kingdom have thought fit to order the amendment of the Episcopal Laws which have been down to my time in the Kingdom of the Angles not well nor according to the Precepts of the holy Canons ordained or administred Wherefore I do command and by my Royal Authority strictly charge that no Bishop or Arch-deacon do henceforth hold Pleas in the Hundred concerning Episcopal Laws nor bring any cause which belongs to the Government of Souls i.e. to spiritual affairs to the judgment of secular men but that whosoever according to the Episcopal Laws shall for what cause or fault soever be summoned shall come to a place which the Bishop shall chuse and name for this purpose and there make answer concerning his cause and do right to God and his Bishop not according to the Hundred but according to the Canons and Episcopal Laws For in the time of the Saxon Empire there were wont to be present at those Country Meetings the Hundred Courts an Alderman and a Bishop the one for Spirituals the other for Temporals as appears by King Edgar's Laws CHAP. V. William Rufus succeeds Annats now paid to the King Why claimed by the Pope No one to go out of the Land without leave Hunting of Deer made Felony AFter the death of William his second Son WILLIAM sirnamed RVFVS succeeded in his room All Justice of Laws as Florentius of Worcester tells us was now husht in silence and Causes being put under a Vacation without hearing money alone bore sway among the great ones Ipsaque majestas auro corrupta jacebat that is And Majesty it self being brib'd with gold Lay as a prostitute expos'd to th' bold 15. The right or duty of First-Fruits or as they are commonly called the Annats which our Kings claimed from vacant Abbies and Bishopricks Polydor Virgil will have to have had its first original from Rufus Now the Popes of Rome laid claim to them anciently a sort of Tribute which upon what right it was grounded the Council of Basil will inform us and by what opinion and resolution of Divines and Lawyers confirmed Francis Duarenus in his Sacred Offices of the Church will instruct us 'T is certain that Chronologers make mention that at his death the Bishopricks of Canterbury Winchester and Salisbury and twelve Monasteries beside being without Prelates and Abbots paid in their Revenues to the Exchequer 16. He forbad by publick Edict or Proclamation sayes the same Author that any one should go out of England without his leave and Passport We read that he forbad Anselm the Arch-Bishop that he should not go to wait upon Pope Vrban but that he comprehended all Subjects whatsoever in this his Royal order I confess I have not met with any where in my reading but in Polydor. 17. He did so severely forbid hunting of Deer saith William of Malmesbury that it was Felony and a hanging matter to have taken a Stag or Buck. CHAP. VI. Henry the First why called Beauclerk His Letters of Repeal An Order for the Relief of Lands What a Hereot was Of the Marriage of the Kings Homagers Daughter c. Of an Orphans Marriage Of the Widows Dowry Of other Homagers the like Coynage-money remitted Of the disposal of Estates The Goods of those that dye Intestate now and long since in the Churches Jurisdiction as also the business of Wills Of Forfeitures Of Misdemeanors Of Forests Of the Fee de Hauberk King Edward's Law restored WIlliam who had by direful Fates been shewn to the World was followed by his Brother Henry who for his singular Learning which was to him instead of a Royal Name was called Beau-clerk He took care of the Common-wealth by amending and making good what had slipt far aside from the bounds of Justice and by softning with wholsome remedies those new unheard of and most grievous injuries which Ralph afterwards Bishop of Durham being Lord Chief Justice of the whole Kingdom plagued the people with He sends Letters of Repeal to the High Sheriffs to the intent that the Citizens and people might enjoy their liberty and free rights again See here a Copy of them as they are set down in Matthew Paris HENRY by the Grace of God King of England to Hugh of Bockland High Sheriff and to all his Liege people as well French as English in Herefordshire Greeting Know ye that I through the mercy of God and by the common advice of the Barons of the Kingdom of England have been crowned King And because the Kingdom was opprest with unjust exactions I out of regard to God and that love which I bear towards you all do make the holy Church of God free so that I will neither sell it nor will I put it to farm
Aid in our Realm but by the common advice of our Realm unless it be to ransom our Body and to make our first-born Son a Soldier or Knight and to marry our eldest Daughter once 38. Some ascribe that Law to Henry which Lawyers call the Courtesie of England whereby a man having had a Child by his Wife when she dyes enjoyes her Estate for his life 39. He made a Law that poor shipwrackt persons should have their Goods restored to them if there were any living creature on Ship-board that escaped drowning Forasmuch as before that time whatsoever through the misfortune of shipwrack was cast on Shoar was adjudged to the Exchequer except that the persons who suffered shipwrack and had escaped alive did themselves within such a time refit and repair the Vessel So the Chronicle of the Monastery of S. Martin de Bello This right is called Wreck or if you will Uareck of the Sea How agreeable to the Law of Nations I trouble not my self to enquire That more ancient Custom is as it were suitable to the Norman usage Now at this time our Lawyers and that the more modern Law of Edward the First pass judgement according to the more correct Copy of King Henry And they reckon it too among the most ancient Customs of the Kingdom Did therefore King Richard order or did Hoveden relate this to no purpose or without any need If one who suffers shipwrack dye in the Ship let his Sons or Daughters his Brethren or Sisters have what he left according as they can shew and make out that they are his next heirs Or if the deceased have neither Sons nor Daughters nor Brothers nor Sisters the King is to have his Chattels Can one imagine that this Law he made at Messina when he was engaged in War was calculated only for that time or place Certainly in the Archives there is elsewhere to be met with as much as this 40. That he might with a stout Army bear the brunt of Baldwin Earl of Flanders and Louis King of France who had conspired being bound by mutual Oaths to one another with the Duke of Anjou to take away from King Henry by force of Arms the Dutchy of Normandy he first of all t is Polydore avers it laid a heavy Tax upon the people to carry on the new War which thing with the Kings that followed after grew to be a custom He was the last of the Normans of a Male descent and as to the method of our undertaking here we treat of him last CHAP. IX In King Stephen's Reign all was to pieces Abundance of Castles built Of the priviledge of Coining Appeals to the Court of Rome now set on foot The Roman Laws brought in but disowned An instance in the Wonder-working Parliament AS of old unless the Shields were laid up there was no Dancing at Weddings so except Arms be put aside there is no pleading of Laws That Antipathy betwixt Arms and Laws England was all over sensible of if ever at any time in the Reign of K. STEPHEN Count of Blois King Henry's Nephew by his Sister Adela For he did not only break the Law and his Oath too to get a Kingdom but also being saluted King by those who perfidiously opposed Mawd the right and true heir of King Henry he reigned with an improved wickedness For he did so strangely and odly chop and change every thing it is Malmsbury speaks it as if he had sworn only for this intent that he might shew himself to the whole Kingdom a Dodger and Shammer of his Oath But as he saith perjuros merito perjuria fallunt that is Such men as Perjuries do make their Trade By their own Perjuries most justly are betray'd They are things of custom to which he swore and such as whereby former priviledges are ratifed rather than new ones granted However some things there are that may be worth the transcribing 41. Castles were frequently raised 'tis Nubrigensis relates it in the several Counties by the bandying of parties and there were in England in a manner as many Kings or rather as many Tyrants as Lords of Castles having severally the stamping of their own Coin and a power of giving Law to the Subjects after a Royal manner Then was the Kingdom plainly torn to pieces and the right of Majesty shattered which gains to it self not the least lustre from stamping of Money Though I know very well that before the Normans in the City of Rochester Canterbury and in other Corporations and Towns Abbots and Bishops had by right of priviledge their Stampers and Coiners of Money 42. Next to the King Theobald Arch Bishop of Canterbury presided over the Council of London where there were also present the Peers of the Realm which buzzed with new appeals For in England t is Henry of Huntington sayes it appeals were not in use till Henry Bishop of Winchester when he was Legate cruelly intruded them to his own mischief Wherefore what Cardinal Bellarmin has writ beginning at the Synod of Sardis concerning the no body knows how old time of the universal right of appealing to the Pope of Rome does not at all as to matter of fact seem to touch upon this Kingdom of ours by many and many a fair mile 43. In the time of King Stephen so 't is in the Polycraticon of John of Salisbury the Roman Laws were banisht the Realm which the Hoâ—se of the Right Reverend Theobald Lord Primate of Britanny had fetcht or sent for over into Britanny Besides it was forbidden by Royal Proclamation that no one should retain or keep by him the Books If you understand the Laws of the Empire I rather take them to be the Decrees of the Popes it will not be much amiss out of the Parliament Records to adjoyn these things of later date In the Parliament holden by Richard of Bourdeaux which is said to have wrought Wonders Upon the Impeachment of Alexander Nevil Arch-Bishop of Canterbury Robert Uere Duke of Ireland Michael Pole Earl of Suffolk Thomas Duke of Glocester Richard Earl of Arundel Thomas Beauchamp Earl of Warwick and others That they being intrusted with the management of the Kingdom by soothing up the easie and youthful temper of the King did assist one another for their own private interest more than the publick well near to the ruine and overthrow of the Government it self the Common Lawyers and Civilians are consulted with about the form of drawing up the Charge which they answer all as one man was not agreeable to the rule of the Laws But the Barons of Parliament reply That they would be tyed up to no rules nor be led by the punctilioes of the Roman Law but would by their own authority pass judgement pur ce que la royalme d' Angleterre n' estoit devant ces heures n'y à l' entent de nostre dit Seigneur le Roy Seigneurs de Parlament unque ne serra
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-Arch-Bishops Court so as that it ought not to proceed any further without the Kings assent This Law long since the famous Sir Edward Coke made use of to assert and maintain the Kings Ecclesiastical Jurisdiction as a thing not of late taken up by him but anciently to him belonging 54. If a Claim or Suit shall arise betwixt a Clergyman and a Lay-man or betwixt a Layman and a Clergyman concerning any Tenement which the Clergyman would draw to the Church and the Lay-man to a Lay-fee it shall by the recognizance of twelve legal men upon the consideration and advisement of the Lord Chief Justice be determined whether the Tenement do appertain to Alms i. e. to the Church or to Lay-Estate before the Kings own Justice And if it shall be recognized or adjudged to appertain to Alms it shall be a Plea in the Ecclesiastical Court But if to a Lay-fee unless they both avow or avouch the Tenement from the same Bishop or Baron it shall be a Plea in the Kings Court But if each of them shall for that fee avouch the same Bishop or Baron it shall be a Plea in that Bishops or Barons Court so that he who was formerly seised shall not by reason of the Recognizance made lose the Seisin till it shall by Plea be deraigned 55. He who shall be of a City or a Castle or a Burrough or a Manner of the Kings Domain if he shall be cited by an Arch-Deacon or a Bishop upon any misdemeanour upon which he ought to make answer to him and refuse to satisfie upon their summons or citations they may well and lawfully put him under an Interdict or Prohibition but he ought not to be Excommunicated By the way seasonably remark out of the Pontificial Law that that Excommunication they call the greater removes a man and turns him out from the very Communion and Fellowship of the Faithful and that an Interdict as the lesser Excommunication separates a man and lays him aside only forbidding him to be present at Divine Offices and the use of the Sacraments I say he ought not to be Excommunicated before that the Kings Chief Justice of that Village or City be spoken with that he may order him to come to satisfaction And if the Kings Justice fail therein he shall be at the Kings mercy and thereupon or after that the Bishop may punish him upon his impleadment with the Justice of the Church 56. arch-Arch-Bishops Bâ—shops and all Persons whatsoever of the Kingdom who hold of the King in capite and have their possessions from our Lord the King in nature of a Barony and thereupon make answer to the Kings Justices and Officers and perform all Rights and Customs due to the King as other Barons do they ought to be present at the Tryals of the Court of our Lord the King with his Barons until the losing of Limbs or death be adjudged to the party tried 57. When an Arch-Bishoprick or Bishoprick or Abbacy or Priory of the Kings Domain shall be void it ought to be in his hand and thereof shall he receive all the profits and issues as belonging to his Domain And when the Church is to be provided for our Lord the King is to order some choice persons of the Church and the Election is to be made in the Kings own Chappel by the assent of our Lord the King and by the advice of those persons of the Kingdom whom he shall call for that purpose and there shall the Person Elect saving his order before he be Consecrated do Homage and Fealty to our Lord the King as to his Liege Lord for his life and limbs and for his Earthly Honour 58. If any one of the Nobles or Peers do deforce to do Justice to an Arch-Bishop Bishop or Arch-Deacon for themselves or those that belong to them the King in this case is to do justice 59. If peradventure any one shall deforce to the Lord the King his Right the Arch-Bishop Bishop and Arch-Deacon ought then in that case to do justice or to take a course with him that he may give the King satisfaction 60. The Chattels of those who are in the Kings forfeit let not the Church or Church-yard detain or keep back against the justice of the King because they are the Kings own whether they shall be found in Churches or without 61. Pleas of debts which are owing either with security given or without giving security let them be in the Kings Court. 62. The Sons of Yeomen or Country people ought not to be ordained or go into holy Orders without the assent of the Lord of whose Land they are known to have been born CHAP. XII The Statutes of Clarendon mis-reported in Matthew Paris amended in Quadrilegus These Laws occasioned a Quarrel between the King and Thomas a Becket Witness Robert of Glocester whom he calls Yumen The same as Rusticks i. e. Villains Why a Bishop of Dublin called Scorch-Uillein Villanage before the Normans time I Confess there is a great difference between these Laws and the Statutes of Clarendon put forth in the larger History of Matthew Paris I mean those mangled ones and in some places what through great gaps of sence disjointings of Sentences and misplacings of words much depraved ones whose misfortune I ascribe to the carelesness of Transcribers But the latter end of a Manuscript Book commonly called Quadrilegus wherein the Life of Thomas Arch-Bishop of Canterbury is out of four Writers to wit Hubert of Boseham John of Salisbury William of Canterbury and Alan Abbot of Tewksbury digested into one Volume hath holp us to them amended as you may see here and set to rights It is none of our business to touch upon those quarrels which arose upon the account of these Laws betwixt the King and Thomas of Canterbury Our Historians do sufficiently declare them In the mean time may our Poet of Glocester have leave to return upon the Stage and may his Verses written in ancient Dialect comprising the matter which we have in hand be favourably entertained No man ne might thenche the love that there was Bitwene the K. H. and the good man S. Thomas The diuel had enui therto and fed bitwen them feu Alas alas thulke stond vor all to well it greu Uor there had ere ibe
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 ihold And he wist that vre dere Lourd in the Gospel told That he himselfe was sothnes and custum nought Theruore Luther custumes he nould graent nought Ne the K. nould bileue that is elderne ad ihold So that conteke sprung bituene them manifold The K. drou to right law mani Luther custume S. Thomas they withsed and granted some The Lawes that icholle now tell he granted vawe Zuf a yuman hath a sone to clergi idraw He ne sall without is lourdes icrouned nought be Uor yuman ne mai nought be made agen is lourds will free Those that are born Slaves or that other sort of servants termed Villains he calls by the name of Yumen We call free-born Commoners alike as Servants as it were with a badg of ignobleness or ungentility Yeomen and those who of that number are married men Gommen for it was Gomman in the old Dutch not Goodman as we vulgarly pronounce it which signified a married man Words as I am verily perswaded made from the Latin Homines which very word by Ennius and Festus according to the Oscan Idiom is written Hemones and in our Language which comes pretty near that spelling of the Poet Yeomen And the Etymon or Origination of the word it self is very much confirmed by the opinion of some of our own Country Lawyers who take but with a mistake Homines i. e. men that do homage and Nativos i. e. born Slaves in ancient Pleas to be terms equipollent and of the same importance The Constitution of Clarendon style those Rusticks or Countrymen whom he calls Yumen and Rusticks and Villains those among the English were slaves or servants were anciently synonymous words meaning the same thing For whereas Henry Londres Arch Bishop of Dublin had treacherously committed to the flames the Charters of his Rustick Tenants the Free Tenants called him as we read in the Annals of Ireland Scorch-Uillein as if one would say the burner or firer of Villains Nor should I think it unseasonable in this place to take notice of a mistake or oversight of Thomas Spott a Monk of Canterbury who writes that the English before the Norman Conquest knew nothing of private servitude or bondage i. e. had no such thing as Villanage among them For he is convinced both by the Maid of Andover King Edgar's Miss as also by the Laws signed and sealed by King Ina and by that Donation or Grant Torald of Bukâ—nhale made to Walgate Abbot of Crowland wherein among other things a great many servants are mentioned with their whole suits and services Take it also out of the Synod of London Anselme being President of it since here belike there is mention made of Servants That no one henceforward presume to use that ungodly practice which hitherto they were wont in England to do to sell or put to sale men that is Servants like brute Beasts But we do not do civilly to interrupt the Poet We must begin again with him he once more tunes his Pipes Another thing he granted eke as ye mow novise Yuf a man of holi Chirch hath eni lay fee Parson other what he be he ssal do therevore Kings service that there valth that is right ne be vorlore In plaiding and in assise be and in judgement also Bote war man ssal be bilemed other to deth ido He granted eke yuf eni man the Kings traitor were And eni man is chateux to holi chirch bere That holi chirch ne solde nought the chateux there let That the K. there other is as is owne is ne wette Uor all that the felon hath the Kings it is And eche man mai in holi church is owne take iwis He granted eke that a chirche of the Kings fe In none stede ene and ever ne ssold igiue be As to hous of religion without the Kings leve And that he other the patron the gift first gave S. Thomas granted well these and other mo And these other he withsede that did him well woe I. Yuf bituene twei leud men were eni striving Other bituene a leud and a clerc for holi chirch thing As vor vouson of chirch whether shold the chirch giue The K. wold that in his court the ple ssold be driue Uor as much as a leud man that the o parti was Chanliche was under the K. under no bishop nas CHAP. XIII The Poet gives account which of those Laws were granted by Thomas a Becket which withstood Lendemen signifies Laymen and more generally all illiterate Persons THat which this Author of ours calls Leudemen the Interpreters of Law both our Common and the Canon Law call Laicks or Laymen For as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. people as it it is derived by Caesar Germanicus upon Aratus his Phaenomena after Pindar 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. from a Stone denotes a hard and promiscuous kind of men so the word Leudes imports the illiterate herd the multitude or rabble and all those who are not taken into holy Orders Justus Lipsius in his Poliorceticks discourses this at large where he searches out the origination of Leodium or Liege the chief City of the Eburones in the Netherlands As to what concerns our language John Gower and Jeoffry Chaucer who were the Reformers and Improvers of the same in Verse do both make it good Thus Jeoffry No wonder is a leude man to rust If a Priest be foule on whom we trust However that it signifies an illiterate or unlearned person as well as one not yet in orders what he saith elsewhere informs us This every leud Uicar and Parson can say And Peter of Blois and others use this expression as well Laymen as Scholars But let not Chaucer take it ill that here he must give way to our Glocester Muse. II. Another was that no clâ—re ne bishop nath mo Ne ssolde without Kings loue out of the lond go And that hii ssolde suere up the boke ywis That hii ne sold purchas no uvel the K. ne none of is III. The thrid was yuf eni man in mausing were I brought And suth come to amendment ne age were nought That he ne suore â—p the boc ac borowes find solde To stand to that holy Chirch there of him toky wold IV. The verth was that no man that of the K. huld ought In cheife or in eni servise in mausing were ibrought Bote the wardeins of holy chirch that brought him thereto The K. sede or is bailifes wat he ad misdo And loked verst were thei to amendment it bring And vote hii wolde by their leue do the mausing V. The vist was that
bishoprikes and Abbeis also That vacans were of prelas in the K. hand were ido And that the K. sold all the land as is owne take Uort at last that him lust eni prelat there make And than thulke prelat sould in is chapel ichose be Of is clarks which he wuld to such prelace bise And than wan he were ichose in is chapel right yere Homage he solde him do ar he confirmed were VI. The sixt was yuf eni play to chapitle were idraw And eni man made is appele yuf me dude him unlaw That to the Bishop from Ercedeken is appele sold make And from Bishop to Arcebissop and suth none other take And but the Ercebisops court to right him wold bring That he sold from him be cluthe biuore the King And from the K. non other mo so that attan end Plaining of holi chirch to the K. shold wend. And the K. amend solde the Ercebissops dede And be as in the Popes stude and S. Thomas it withsede VII The seuethe was that plaiding that of det were To yeld wel thoru truth iplight and nought ihold nere Althei thoru truth it were that ple sold be ibrought Biuore the K. and is bailies and to holy chirch nought VIII The eighth that in the lond citation none nere Thoru bull of the Pope of Rome and clene bileued were IX The nithe was that Peters pence that me gadereth manion The Pope nere nought on isend ac the K. echone X. The tethe was yuf eni Clarke as felon were itake And vor felon iproved and ne might it not forsake That me sold him verst disordein and suth thoru there law And thoru judgement of the land hong him other to draw Uor these and vor other mo the Godeman S. Thomas Fleu verst out of England and eke imartred was Uor he sei there nas bote o way other he must stiffe be Other holy chirch was isent that of right was so fre CHAP. XIV The Pope absolves Thoms a Becket from his Oath and damns the Laws of Clarendon The King resents it writes to his Sheriffs Orders a Seisure Penalties inflicted on Kindred He provides against an Interdict from Rome He summons the Bishops of London and Norwich An Account of Peter Pence TO the Laws of Clarendon which I spoke of the States of the Kingdom the Baronage and with them the Arch-Bishop of Canterbury took their Oaths in solemn manner calling upon God There were Embassadors sent to Pope Alexander the third that there might be that bottom also that he would further confirm and ratifie them But he was so far from doing that that he did not only pretend that they did too much derogate from the priviledge of the Clergy and wholly refuse to give his assent to them but also having absolved Thomas the Arch-Bishop at his own request from the obligation of that Oath he had bound himself with he condemned them as impious and such as made against the interest and honour of holy Church King Henry as soon as he heard of it took it as it was fit he should very much in dudgeon grievously and most deservedly storming at the insolence of the Roman Court and the Treachery of the Bishop of Canterbury Immediately Letters were dispatcht to the several Sheriffs of the respective Counties That if any Clerk or Layman in their Bayliwicks should appeal to the Court of Rome they should seise him and take him into firm custody till the King give order what his pleasure is And that they should seise into the Kings hand and for his use all the Revenues and Possessions of the arch-Arch-Bishops Clerks and of all the Clerks that are with the Arch-Bishop they should put by way of safe pledge the Fathers Mothers and Sisters Nephews and Neeces and their Chattels till the King give order what his pleasure is I have told the Story out of Matthew Paris You see in this instance a penalty where there is no fault It affects or reaches to their Kindred both by Marriage and Blood a thing not unusual in the declension of the Roman Empire after Augustus his time But let misdemeanors hold or oblige those who are the Authors of them was the Order of Arcadius and Honorius Emperors to the Lord Chief Justice Eutychianus nor let the fear of punishment proceed further than the offence is found A very usual right among the English whereby bating the taking away the Civil Rights of Blood and Nobility none of the Posterity or Family of those who lose their honours do for the most hainous crimes of their Parents undergo any pâ—â—alâ—ies But this was not all in those Letters I mentioned he added threats also 63. If any one shall be found carrying Letters or a Mandate from the Pope of Thomas Arch-Bishop of Canterbury containing an interdiction of Christian Religion in England let him be seised and kept in hold and let Justice be done upon him without delay as a Traitor against the King and Kingdom This Roger of Hoveden stands by ready to witness 64. Let the Bishops of London and Norwich be summon'd that they may be before the Kings Justices to do right i. e. to answer to their charge and to make satisfaction that they have contrary to the Statutes of the Kingdom interdicted the Land of Earl Hugh and have inflicted a sentence of Excommunication upon him This was Hugh Bigod Earl of Norfolk 65. ' Let St. Peters pence be collected or gathered and kept safe Those Pence were a Tribute or Alms granted first by Ina King of the West-Saxons yearly at Lammas to be gathered from as many as ' had thirty pence as we read it in the Confessor's Laws ' of live mony in their house These were duly at a set time paid in till the time of Henry the eighth when he set the Government free from the Papal Tyranny About which time Polydore Virgil was upon that account in England Treasurer or Receiver general I thought fit to set down an ancient brief account of these pence out of a Rescript of Pope Gregory to the arch-Arch-Bishops of Canterbury and York in the time of King Edward the second Diocess li. s. d. Canterbury 07 18 00 London 16 10 00 Rochester 05 12 00 Norwich 21 10 00 Ely 05 00 00 Lincoln 42 00 00 Coventry 10 05 00 Chester 08 00 00 Winchester 17 06 08 Exceter 09 05 00 Worcester 10 05 00 Hereford 06 00 00 Bath 12 05 00 York 11 10 00 Salisbury 17 00 00 It amounts to three hundred Marks and a Noble that is two hundred Pounds sterling and six Shillings and eight Pence You are not to expect here the murder of Thomas a Becket and the story how King Henry was purged of the crime having been absolved upon hard terms Conveniunt cymbae vela minora meae My little Skiff bears not so great a Sail. CHAP. XV. A Parliament at Northampton Six Circuits ordered A List of the then Justices The Jury to be of twelve Knights
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 calâ—ed 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-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 Beauchamp 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 dear'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
David Powell and others have informed us The Druids were wont to meet to explain the Laws in being and to make new ones as occasion required as is most likely in some certain place designed for that purpose as now at this very time all matters of Law go to be decided at Spire in Germany at Westminster-Hall in England and Paris in France Their publick Convention or Meeting-place was constantly as Julius Caesar tells us in the borders of the Carnutes the middle Region of all France Some think that a Town at eight Miles distance from the Metropolis of those people commonly called Dreux was designed for that use Whilst the Saxons governed the Laws were made in the General Assembly of the States or Parliament In the front of King Ina's Laws 't is above Eight Hundred and Eighty years that he first reigned we read thus It Ine mid godes gift West-Saxna Cyning mid getbeat mid lere Cenredes mines fader hedde Erconwald mine biscops mid eallum minum ealdor mannum tham yldestan Witan mines theode be beodeth c. which in our present English speaks thus I Ina by the Grace of God King of the West-Saxons by the advice and order of Kenred my Father and of Hedda and Erconwald my Bishops and of all my Aldermen and of the Elders and Wise Men of my people do command c. There are a great many instances of this kind in other places Moreover Witlaf and Bertulph who were Kings of the Mercians near upon Eight hundred years ago do in their instruments under their hands make mention of Synods and Councils of the Prelates and Peers convened for the affairs of the Kingdom And an ancient Book has this passage of Abendon Here was the Royal Seat hither when they were to treat of the principal and difficult points of State and affairs of the Kingdom the people were used to meet and flock together To this may be added that which Malmesbury sayes of King Edward in the year of our Lord 903. The King gathered a Synod or â—ssembly of the Senators of the English Nation over which did preside Pleimund Arch-Bishop of Canterbury interpreting expresly the words of the Apostolical Embassy These Assemblies were termed by the Saxons Widdena gemcdes i. e. Meetings of the Wise Men and Micil sinodes i. e. the Great Assemblies At length we borrowed of the French the name of Parliaments which before the time of Henry the First Polydore Virgil sayes were very rarely held An usage that not without good reason seems to have come from the ancient Germans So Tacitus sayes of them Concerning smaller matters the Princes only concerning things of greater concern they do all the whole body of them consult yet in that manner that those things also which it was in the peoples power to determine were treated of by the Princes too And I have one that hath left it in writing that when there was neither Bishop nor Earl nor Baron yet then Kings held their Parliaments and in King Arthur's Patent to the University of Cambridge for ye have my leave if you can find in your heart to give credit to it as John Key does by the counsel and assent of all and singular the Prelats and Princes of this Realm I decree There were present at Parliaments about the beginning of the Normans times as many as were invested with Thirteen Fees of Knights service and a third part of one Fee called Baron's from their large Estates for which reason perhaps John Cochleius of Mentz in his Epistle Dedicatory to our most Renowned Sir Thomas More prefixt before the Chronicle of Aurelius Cassiodorus calls him Baron of England But Henry the Third the number of them growing over big ordered by Proclamation that those only should come there whom he should think fit to summon by Writ These Assemblies do now sit in great State which with a wonderful harmony of the Three Estates the King the Lords and the Commons or Deputies of the People are joyned together to a most firm security of the publick and are by a very Learned Man in allusion to that made word in Livy Panaetolium from the Aetolians most rightly called Pananglium that is all England As in Musical Instruments and Pipes and in Singing it self and in Voices sayes Scipio in Tully's Books of the Common-wealth there is a kind of harmony to be kept out of distinct sounds which Learned and Skilful Ears cannot endure to hear changed and jarring and that consort or harmony from the tuning and ordering of Voices most unlike yet is rendred agreeing and suitable so of the highest and middlemost and lowermost States shuffled together like different sounds by fair proportion doth a City agree by the consent of persons most unlike and that which by Musicians in singing is called Harmony that in a City is Concord the straightest and surest bond of safety in every Common-wealth and such as can by no means be without Justice But let this suffice for Law-makers CHAP. XX. The Guardians of the Laws who In the Saxons time seven Chief One of the Kings among the Heptarchs styled Monarch of all England The Office of Lord High Constable Of Lord Chancellor ancient The Lord Treasurer Alderman of England what Why one called Healfkoning Aldermen of Provinces and Graves the same as Counts or Earls and Viscounts or Sheriffs Of the County Court and the Court of Inquests called Tourn le Viscount When this Court kept and the original of it I Do scarce meet before the Saxons times with any Guardians of the Laws different from these Law-makers In their time they were variously divided whose neither Name nor Office are as yet grown out of use The number is made up to give you only the heads by these to wit the King the Lord High Constable the Chancellor the Treasurer the Alderman of England the Aldermen of Provinces and the Graves Those of later date and of meaner notice I pass by meaning to speak but briefly of the rest The King was alwayes one amongst the Heptarchs or seven Rulers who was accounted I have Beda to vouch it the Monarch of all England Ella King of the South-Saxons so sayes Ethelwerd was the first that was dignified with so high a Title and Empire who was Owner of as large a Jurisdiction as Ecbright the second was Ceulin King of the West-Angles the third Aethelbrith King of the Kentish-men the fourth Redwald King of the Easterlings the fifth Edwin King of Northumberland the sixth Oswald the seventh Osweo Oswala's Brother after whom the eighth was Ecbright His West-Saxon Kingdom took in the rest for the greatest part The Office of Lord High Constable which disappeared in Edward Duke of Buckingham who in Henry the Eighth's time lost his Head for High-Treason was not seen till the latter end of the Saxons One Alfgar Staller is reported by Richard of Ely Monk to have been Constable to
Edward the Confessor and Mr. Camden mentions a dwelling of his upon this account called Plaiffy in the County of Middlesex He of Ely sets him out for a Great and Mighty Man in the Kingdom And indeed formerly that Magistrate had great power which was formidable even to Kings themselves They who deny there were any Chancellors before the coming in of the Normans are hugely mistaken Nor are they disproved only out of the Grant of Edward the Confessor to the Abbot of Westminster which I am beholden to Mr. Lambard for at the bottom of which these words are set down I Syward Publick Notary instead of Rembald the Kings Majesties Chancellor have written and subscribed this paper but also out of Ingulph who makes mention of Farketulus some while after that Abbot of Crowland Chancellor of King Edred by whose Decree and Counsel were to be handled treated whatsoever businesses they were Temporal or Spiritual that did await the Judgement of the King and being thus treated of by him might irrefragably stand good And Francis Thinn that Learned Antiquary has reckoned up several who have discharged this Office as Turketill to King Ethelbald Swithin Bishop of Winchester to King Egbert Vlfin to King Athelstan Adulph to King Edgar Alsy Abbot and Prelate of Ely to King Ethelred Concerning which Office and the Seals which the Chancellor in old time had the keeping of I had rather you would consult with Camden's Tribunals or Seats of Justice and those things which John Budden at Wainfleet Doctor of Laws has brought out of the Archives into his Palingenesia than seek them at my hands As for Treasurers Dunstan was so to King Edred and Hugolin to the Confessor But that fifth title of Alderman of England is an unusual one Yet if I don't mistake my self he was the Chief President in Tryals at Law and an Officer to keep all quiet at home the same as now perhaps is commonly called the Lord Chief Justice of England This remarkable name I do not meet with neither in the Monkish Chronologers which are to be had at the Shops nor in the Records of our Laws But a private History of the Abbey of Ramsey in Huntingdon-shire has given us notice of one Ailwins Tomb with this Inscription HIC REQUIESCIT AILWINUS INCLITI REGIS EADGARI COGNATUS TOTIUS ANGLIAE ALDERMANNUS ET HUJUS SACRI COENOBII MIRACULOSUS FUNDATOR that is Here resteth Ailwin Kinsman of the Renowned King Edgar Alderman of all England and the miraculous Founder of this Sacred Monastery And by reason of his great Authority and Favour which he had with the King by a Nick name they called him Healfkoning i. e. Half-King Now Henry of Huntingdon sayes that Tostius Earl or to use his phrase Consul of Northumberland and Harald Sons of Godwin Earl of Kent were Justices of the Realm Aldermen may aptly be termed by the word Senators Those Judges did exercise a delegated power throughout the Provinces called Counties or Shires and the Graves an under-delegated power from them The word is as much as Governours and is the same thing as in High Dutch Grave in Landgrave Burgrave Palsgrave c. and what amongst some of our own people Reev We shall call them both as that Age did in a Latin term the one Comites i. e. Counts or Earls the other Vicecomites that is Viscounts or Sheriffs The name of Count is every where met with amongst the most ancient of the Monks which yet does very often pass into that of Duke in the subscription of Witnesses And in the Charter of the Foundation of Chertsey Abby in Surrey Frithwald stiles himself subregulus i.e. an under Kingling or petty Vice-Roy to Wulpher King of the Mercians make no question of it he meant he was a Count. A Viscount and a Vice-Lord are more than very like they are the very same Ingulph sayes it above And in the last hand-writing of King Edred we have I Bingulph Vice-Lord advised it I Alfer Viscount heard it These Counts and Viscounts or Earls and Sheriffs had in their Counties their several Courts both for private and for publick matters For private affairs they had every Month a Meeting called the County Court Let every Grave as we have it in Edward the Elder 's Laws every fourth Week convene and meet the people in Assembly let him do equal right to every one and determine and put an end to all Suits and Quarrels when the appointed days shall come For publick business King Edgar ordered the Court of Inquests or Inquiries called Tourn le Uiscount Let a Convention or Meeting be held twice every year out of every County at which let the Bishop of that Diocess and the Senator i. e. the Alderman be present the one to teach the people the Laws of God the other the Laws of the Land What I have set down in William the First at the end of the fourth Chapter of this second Book you ought to consider of here again in this place The inhabitants did not meet at this Court of Inquests at any season promiscuously and indifferently but as it is very well known by the use and ancient Constitutions of the Realm within a Month either after Easter or after Michaelmas In which Court seeing that not only the Count as now a dayes the Viscount or Sheriff does but also the Bishop did preside it does not at all seem difficult to trace the very original of this temporary Law That peradventure was the Synod of Antioch held in Pope Julius the First 's time and acknowledged in the sixth General Council held at Constantinople In this latter there are expresly and plainly two Councils or Meetings of the Bishops to be kept every year within three Weeks after Easter and about the middle of October if there be any small difference in the time it can be no great matter of mistake You may help your self to more other things of meaner note out of what has been said before about Hundreds Bourghs and the like And this may serve in brief for the Saxons who were entrusted with the care of their Laws CHAP. XXI Of the Norman Earls Their Fee Their power of making Laws Of the Barons i.e. Lords of Manours Of the Court-Baron It s rise An instance of it out of Hoveden Other Offices much alike with the Saxons I Shall be briefer concerning the Normans I mean their Earls and Barons Their Counts or Earls before the Conquest except those of Leicester and perchance some others were but Officers and not as yet hereditary When William bore the sway they began to have a certain Fee and a descent of Patrimony having together with their Title assigned to them a third part of the Revenues or Rents which did arise out of the whole County to the Exchequer This custom is clear enough in Gervase of Tilbury in the case of Richard de Redueriis made Earl of Devonshire by Henry the
First Jeoffrey de Magna Villa made Earl of Essex by Mawd the Empress It seems that the Saxon Earls had the self-same right of sharing with the King So in Doomsday Book we find it The Queen Edeua had two parts from Ipswich in Suffolk and the Earl or Count Guert the third and so of Norwich that it paid Twenty Pound to the King and to the Earl Ten Pound so of the Revenues of the Borough of Lewes in Sussex the King had two shares and the Earl the third And Oxford paid for Toll and Gable and other customary Duties Twenty Pound a year to the King besides Six Quarts of Honey and to Earl Algar Ten Pound To conclude it appears also that these Norman Earls or Counts had some power of making Laws to the people of their Counties For instance the Monk of Malmesbury tells us that the Laws of William Fitz-Osborn Earl of Hereford remained still in force in the said County that no Souldier for whatsoever offence should pay above Seven Shillings The Writings and Patents of the men of Cornwall concerning their Stannaries or Tinn-Mines do prove as much nor need I tell the story how Godiva Lady to the Earl Leofrick rid on Horse-back through the Streets of Coventry with her hair disshevelled all hanging about her at full length that by this means she might discharge them of those Taxes and Payments which the Earl had imposed upon them Out of the Countreys wherein all Estates were subject to Military Service the Barons had their Territories as we call them Mannors and in them their Courts to call their Tenants together at the end of every three Weeks and to hear and determine their Causes A Civilian one Vdalricus Zazius would have the original of these Courts among other Nations to have come by way of imitation from Romulus his making of Lords or Patrons and their Clanns or Tenants The use of them at this day is common and ordinarily known But to shew how it was of old we will borrow out of Hoveden this spark of light John Marshall complained to Henry the Second that whereas he had claimed or challenged in the Arch-Bishops Court a piece of Land to be held from him by right of inheritance and had a long time pleaded upon it he could obtain no Justice in the case and that he had by Oath falsified the Arch-Bishops Court that is proved it to be false by Oath according to the custom of the Realm to whom the Arch-Bishop made answer There has been no Justice wanting to John in my Court but he I know not by whose advice or whether of his own head brought in my Court a certain Toper and swore upon it that he went away from my Court for default of Justice and it seemed to the Justices of my Court that he did me the injury by withdrawing in that manner from my Court seeing it is ordained in your Realm that he who would falsifie anothers Court must swear upon the holy Gospels The King not regarding these words swore that he would have Justice and Judgement of him and the Barons of the Kings Court did judge him to be in the Kings Mercy and moreover they fined him Five Hundred Pound As to doing Justice in all other Cases and managing of Publick Affairs the Normans had almost the same Names and Titles of Officers and Offices as the Saxons had FINIS A Brief CHRONOLOGY TO Attend and Assist THE HISTORY In the Year of the WORLD Â 1910. Samothes if there ever were such a man bears rule 2805. Brutus makes a descent that is lands with his Trojans in Cornwall or Devonshire 3516. Dunvallo Molmutius swayes the Scepter 3627. Martia Dowager of King Quintilen is Queen Regent during the Minority of her Son Sisillius the First 3942. Caius Julius Caesar arrives at Deal on the Sea-Coast of Kent and Territa quaesitis ostendis terga Britannis that is Having inquiry made After the Britans bold He turn'd his back 't is said His courage would not hold and was the first that discover'd Britanny to the Romans In the Year of CHRIST Â 44. Claudius Caesar Emperour sends over Aulus Plautius with an Army as his Lieutenant General and by degrees reduceth the Countrey into the form of a Roman Province 52. A Colony of Veterans or old Roman Souldiers is sent down to Maldon in Essex 86. Britanny is subdued or brought under the yoke by the Conduct of Junius Agricola in the time of Domitian the Emperour 183. Lucius or King Lucy was the first Christian King Forasmuch as he was of the same standing with Pope Eleutherius and the Emperour Commodus Whence it appears that Beda makes others mistake and is himself mistaken in his wrong account of time in this affair 428. The Saxons Angles Jutes Danes Frisons or Friselanders arrive here from Germany Taurus and Felix then Consuls in the one and twentieth year of Theodosius the younger The common or ordinary account of Writers sets it down the four hundred forty ninth year but that great man both for Authority and Judgement William Camden Clarenceaux King at Arms hath upon the credit of ancient Records closed this Epoch or Date of time within that term of years which I have set in the Margin 561. King Ethelbert the First King of the English Saxons who profest Christianity 800. King Egbert 872. King Alured or Alfred 959. King Edgar 1017. Canute or King Knute the Dane 1036. Harold eldest Son to King Knute called for his swiftness Harefoot 1042. Edward the Confessor after whom Harold Son to Godwin Earl of Kent usurp't the Throne where he continued only nine Months 1066. William Duke of Normandy after a Battel fought upon the Plain near Hastings got the Dominion or Soveraignty of the British Island 1088. William Rufus second Son of the Conquerour 1100. Henry the First younger Brother to Rufus 1135. King Stephen Count of Blois in France Nephew to Henry by his Sister Adela 1153. Henry the Second Grand-child to Henry the First by his Daughter Mawd the Empress and Jeoffrey Count of Anger 's in France FINIS BRIEF NOTES UPON Some of the more Difficult Passages IN THE TITLE-PAGE COmmon and Statute Law So I render Jus Prophanum as Prophane is opposed to Sacred and Ecclesiastical as himself explains the term in his Preface out of Festus Otherwise it might have been render'd Civil Law as relating to Civil affairs and the Government of State not medling with the Canons and Rules of the Church but that the Civil Law with us is taken generally in another sense for the Imperial Law which however practised in several other Nations hath little to do in England unless in some particular cases Of English Britanny that is that part of Britain which was inhabited by the Angles in Latin called Anglo-Britannia by us strictly England as for distinction the other part of the Island Wales whither the Welsh the true and ancient Britans were driven by the Saxons
of which punishment lay in this that the Liver is reputed the source and seat of all lusts and unlawful desires and doth naturally as some Physicians hold receive the first taint of Venereal distempers the rewards of impure mixtures according to that of Solomon speaking of an Adulterer Till a dart strike thorough his Liver from whence they gather that that which we now call the French Pox was not unknow even in that age of the World L. 26. Prema and Mutinus This latter a Title given to Priapus much-what such a God as Baal Peor was the other a Goddess forsooth much to the same purpose For the old Romans had Gods and Goddesses as the present Romans have Saints for every thing for every action of life But their Offices were such as the modest Reader will easily excuse the want of explaining them Lin. 38. Sayes Progne to her Sister Philomel Tereus King of Thrace having married Progne Daughter of Pandion King of Athens when he went to fetch her Sister Philomel ravished her by the way on Ship-board which occasioned a bloody revenge in the murder of his Son Itys At last they were turned all four into so many several sorts of Birds Progne into a Swallow Philomel into a Nightingale Tereus into a Lapwing and Itys into a Pheasant CHAP. XXI Pag. 36. lin 20. With head-money called Wergild A word compounded of the Saxon were the price or value or worth of a man and geld or gild a payment That is he that had killed another was to buy off his life by paying the full value of the person slain The prizes or rates are set down in Ethelstan's Laws by Thrimsa's a kind of Coyn or piece of money of the value of three shillings saith Mr. Lambard which being reduced to our Sterling stand thus A Peasant 40 l. 1 s. A Thane or one in Orders 300 l. A General or Chieftain 600 l. A Bishop or Alderman 1200 l. An Arch-Bishop or Peer 2250 l. And a King 4500 l. Half of which last summ was to go to the Kindred and the other half to the publick And these Rates are set he sayes by the Common Law of the English The reason of this pecuniary compensation was their tenderness of life that two men might not dye upon the account of the same mischance according to that saying in an ancient Law Nulla sit culpa tam gravis ut vita non concedatur propter timorem Dei But yet withal in some cases of premeditated or clandestine murder they were not excused from making satisfaction with their life or in case one were not able to pay the were or Fine he was punished with death I called this Head-money because in Latine it is termed capitis aestimatio the value or price of a mans head not in that sense as either Chevage or Poll-money is so called CHAP. XXII Pag. 37. lin 42. In the Margin Caxton is quoted a Book it seems rare of which he saith That Book that goes up and down by this name Mr. War in Townsend of Lincolns-Inn a Gentleman Noble by his Descent and Learning both very friendly lent me for my use in a very fair Manuscript which courtesie of his I cannot but think it a foul shame for me not to own and acknowledge with all thankfulness Pag. 38. lin 17 18. Even now in the time of those that are called the Good 'T is William of Malmesbury whom he quotes etiam nunc tempore Bonorum Whether he mean Good Princes who would have those Laws observed or Honest Subjects who would observe them or whether there were any sort of men in his time that went by that Character of Boni good men is more than I have to say There was at one time a sort of Religious persons that went by the name of Bon Hommes but that can have nothing to do in this business CHAP. XXIII Pag. 39. lin 14. Every Native home-born lawful man In the Latin it is Indigena legalis in the Saxon Law-term it is Inlaughe or Inlaugh that is one that is under the Law Inlagatus who is in Frank pledge or belongs to some Court Leet as all Males from twelve years old and upwards were obliged to be So Bracton tells us Lin. 27. Decenna The same as Decuria which is generally rendred a Tithing i.e. a Company of ten men with their families all of them bound to the King to answer for one anothers good and peaceable behaviour From the Latin word it is called a Dozein and the people that belong to it are called Deciners or Dozeniers that is Decennarii The chief of them is termed Decurio or Decanus Friburgi the Tithing-man or Headborough And all Males of twelve years age and upwards except Nobles and Religious persons were obliged to be of some Dozein or other But now there are no other Dozeins but Leets and no other security there given for the Kings Peace but the persons own Oath Lin. 29. Friborgh From the Saxon freo free and borgh a surety or security or as some write it Fridburgh from frid peace and burgh a surety If it be taken for the person it is the same that a Deciner we now spoke of if for the action it is their being sureties for one another if for the company of these mutual ingagers 't is the same as Decuria a Tything in Saxon tienmannatale i. e. the number of ten men The Normans retained the same custom but altered the name calling it Frankpledg from the French Frank i. e. free and pledg i. e. surety And the compass or circuit of this Frankpledg the same as that of Friburg to wit the Decenna or Dozein i. e. ten housholds Lin. 40. Manupastus Of this Bracton sets down a Rule for Law that every person whether free-man or servant either is or ought to be in frank-pledge or of some bodies mainpast Now he is of ones Mainpast saith he who is allowed Victuals and Clothes or Victuals only and Wages And this was the reason why great men were not obliged to be of any ordinary Dozein because Bishops Earls and Barons as the same Bracton informs us ought to have their menial servants in their own Friborgh and to answer to the King for their behaviour and to pay what forfeits they should make if they had not the persons themselves forth-coming And this sayes he is the case of all those who are of any ones Mainpast CHAP. XXIV P. 41. lin 16. John Scot Erigena A School-man famous for his subtilty called in Latin Johannes Duns Scotus Whether Duns were the Name of his Family as it might be Johannes de Dunis which in English would be John Downs or whether it were a Nickname given him for his slovenliness and seeming blockishness from the word Dunce which in Barbarous Latin is Dunsa For so in Camden's Remains we find the Emperour Charles as I take it putting that question to him as he sate at Table over against him Quid interest inter Scotum
vel illius pro praejudicio accipitur XVII Unto the times before Christianity among them was received this is to be referred The first Christian King Ethelbert of Kent Inter caetera as Venerable Bede reporteth bona quae genti suae consulendo conferebat etiam decreta illi judiciorum juxta exempla Romanorum cum consilio sapientum instituit Quae conscripta Anglorum sermone hactenus saith he habentur observantur ab eâ And very many Constitutions yet extant written in the Saxon Tongue are attributed to Ine Alfred Edward Athelstan Edmund Edgar Ethelred and Canutus or Knute translated into Latine and published long since by William Lambard a learned Gentleman with the Laws of Edw. the Confessor so called non quod ille statuerit saith one sed quod observaverit whereunto are joyned divers with title of William the Conqueror which being so there already according to several times in one Volume for that only purpose compiled they only shall here be inserted which as yet lie dispersed in the old Monuments of our Historians XVIII Totius Angliae of King Alured so writeth Ingulphus Abbot of Croyland pagos provincias in Comitatus primus omnium commutavit Comitatus in Centurias i. e. Hundredas in decimas as if he imitated Jethro Moses Father-in-law id est tythingas divisit ut omnis indigena legalis in aliquâ centuriâ decimâ existeret Et si quis suspectus de aliquo latrocinio per suam Centuriam vel decuriam vel condemnatus vel invadiatus poenam demeritam vel incurreret vel vitaret Praefectos verò provinciarum qui antea Vicedomini in duo officia divisit i. e. in Judices quos nunc Justiciarios vocamus in Vicecomites qui adhuc idem nomen retinent XIX Of King Edgar the Monk of Malmesbury writeth thus Quia Compatriotae in tabernis convenientes jamque temulenti pro modo bibendi contenderent ipse clavos argenteos vasis affigi jussit dum metam suam quisque cognosceret non plus subserviente verecundiâ vel ipse appeteret vel alium appetere cogeret Constraint of such as were too indulgent to the desires of their sensual appetite by ingurgitation of brain-smoaking Liquors was by the Greek Zaleucus and so received among the Locrians no less than capital But which hath been always so far from this State that until the third Session of the present Parliament not so much as any pecuniary mulct endeavoured to refrain that temporary and altogether voluntary madness XX. Nulla saith Ingulphus electio Praelatorum erat merè libera Canonica sed omnes dignitates tam Episcoporum quam Abbatum per annulum baculum Regis Curia pro suâ complacentiâ conferebat XXI Chirographa until the Confessor's time fidelium praesentium subscriptionibus cùm crucibus aureis aliisque sacris signaculis firma fuerunt XXII Conferebantur primò saith he but I understand it of the Infancy of the Norman state multa praedia nudo verbo absque scripto vel chartâ tantum cum Domini gladio vel galea vel cornu vel cratere plurima tenementa cum calcari cum strigili cum arcu nonnulla cum sagittâ This somewhat savours of Obertus Orto's form of investiture in his Feudals or his of this and differs much from our strict Livery of Seisin which regularly ought to be made with part of and upon the Land by gift transferred Not unworthy in this place of observation is that Charter of Cedwalla King of Sussex as among old Monuments of evidence belonging to the Arch-bishop of Canterbury I have seen in the Year DCLXXXVII made to Theodore then Archbishop of certain Lands with this subscription Ad cumulum autem Confirmationis ego Cedwalla cespitem terrae praedictae super sanctum altare Salvatoris posui propriâ manu pro ignorantia literarum signum sanctae Crucis expressi subscripsi The like hath Camden out of a Patent made by Withered King of Kent to a Nunnery in the Isle of Thanet But to that form of conveyance which Ingulphus speaks of is thus added Sed haec initio regni sui posterioribus annis immutatus est iste modus The antiquity of deeming the Queen both as Covert and also a sole person with such respective admittance as is commonly agreed upon and the Custome of Land-forfeiture upon Felony committed are both referred to these times The first proved by that learned Chief Justice Sir Edw. Coke out of a Gift made by Aethelswith Wife to King Burghred to one Cuthwulfe her Servant DCCCLXVIII The other from an Example by him published of one Ethesig whose Lands were forfeited to King Ethelred for feloniously stealing one Ethelwine's Swine CHAP. IV. William the First But none of that which under title of his Laws is in Lambard NO sooner was the Norman William circled with the Crown of his Victory but I. Decrevit subjectum sibi populum my Author is Gervase of Tilbury juri scripto legibusque subjicere Propositis igitur legibus Anglicanis secundùm tripartitam earundem distinctionem hoc est Merchenlage this govern'd the Shires of Glocester Worcester Hereford Warwick Oxford Chester Shropshire and Stafford Westsaxenlage hereby were ordered Kent Sussex Surry Barkshire Hamshire Wiltshire Somerset Dorset and Devonshire and Danelage by it York Darby Nottingham Leicester Lincoln Northampton Bedford Buckingham Hartford Essex Middlesex Norfolk Suffolk Cambridge and Huntingdon quasdam reprobavit quasdam autem approbans illis transmarinas Neustriae that is Normandy corruptly for Westriae the opposite to that other part of the division of France Eustrasia leges quae ad regni pacem tuendam efficacissimè videbantur which was not performed without earnest and most humble request of the English For as honouring with respect the Northern stock whence his blood was derived the Danelage he preferred as worthier and better for Government than the mere English But seeming at first inexorable the perswasive remembrance of his Soul which bequeathed him the Kingdom and whose Laws they desired being as the best supposed motive inserted in the Petitions of the conquered he granted so much that from that time veneratae per universam Angliam corroboratae observatae sunt prae caeteris patriae legibus leges Edwardi Regis quae priùs inventae it is Roger of Hoveden's Report constitutae erant in tempore Edgari avi sui II. Fecit describi omnem Angliam the substance hereof is in most of the Monkish histories but Florence of Worcester is the Author I now use quantum terrae quisque Baronum suorum possidebat quot feudatos milites quot carucas quot villanos quot animalia imò quantum vivae pecuniae quisque possidebat in omni regno suo à maximo usque ad minimum quantum redditûs quaeque possessio reddere poterat This Inquisition was returned into his Exchequer and is a Book
etiam quadrans si integer esset respueretur XVIII Mercatorum falsam ulnam Malmesbury speaks castigavit brachii sui mensurâ adhibitâ omnibusque per Angliam propositâ XIX Curialibus suis ubicunque villarum esset quantum à Rusticis gratis accipere quantum quoto pretio emere debuissent edixit transgressores vel gravi pecuniarum mulctâ vel vitae dispendio afficiens XX. Much stir both at Rome and in England was touching Investiture of Bishops and Abbots by Lay hands Anselme Arch-Prelate of Canterbury mainly opposing himself against it whose perswasion so at length wrought with the King that it was permitted ut ab eo tempore in reliquum Matthew of Westminster after others reports it nunquam per donationem Baculi pastoralis vel annuli quisquam de Episcopatu vel Abbatiâ per Regem vel quamlibet laicam personam investiretur in Anglia Retento tamen electionis regalium privilegio Notwithstanding this in the year M.C.VII per annulum baculum as Matthew Paris tells us was by the same Henry one Rodolph made Arch-Bishop of Canterbury XXI He restored John Stow now speaks to you to his Subjects the use of Lights in the night which lights and also fire had been forbidden by his Father to be used after the ringing of a Bell at eight of the Clock at night XXII Fecit omnes Milites Angliae crines suos ad justum modum abscindere qui priùs longitudine capillorum out of Flores Historiarum cum foeminis certabant XXIII A Tribute of 3 s. of every Hide was exacted for augmentation of a Dowry for the Kings Daughter Mawde ' to be married to the Emperour Henry the Fourth whereupon saith Polydore Secuti sunt istud institutum quaerendarum dotum ad collationem filiarum caeteri deinde Reges adeo posteritas suorum commodorum tenax semper fuit referring that known Service of ayde à file marrier to this as the first example thereof though the antiquity of that custom can reckon as many years as since Romulus his first institution of Patrons and Clients whence Feuds and Courts-Baron as Udalricus Zasius conjectureth by way of imitation proceeded in following times and no less the whole title thereof And the other à faire Fitz Chevaler de rançome are in the old Graund Custumier of Normandy XXIV Imminent peril was then lest French Conspiracies should get violent possession of the Dutchy of Normandy to prevent it with a Sinewy Army primùm omnium populo imponit take it upon Polydore's credit grave tributum causâ novi belli gerendi id quod apud posteriores Reges in consuetudinem venit Of the Norman Line Masculine he was the last and this the last I make of his Laws CHAP. VII Stephen of Blois CRashing of Armour and pronouncing of Laws have such antipathy that his injurious Successor Stephen of Blois will put us to the charge of small room At his Inauguration by Oath he confirmed divers generalities for liberties from ancient time used of the Church but so religiously that as one saith of him He seemed to have therefore only sworn that he might be forsworn But of them one was especially thus I. Si quis Episcopus vel Abbas vel alia Ecclesiastica persona ante mortem suam rationabiliter sua distribuerit vel distribuenda statuerit firmum manere concedo si vero morte praeoccupatus fuerit pro salute animae ejus Ecclesiae consilio see before in the ninth of Henry Beauclerc eadem fiat distributio II. Castella per singulas provincias saith William of Newborough studio partium crebro surrexerant erantque in Angliâ quodammodo tot Reges vel potius Tyranni quot Domini Castellorum habentes singuli percussuram proprii numismatis potestatem subditis regio more dicendi juris III. Danegeldum which how it was first rated and imposed you may find in the Confessor's Laws quod antecessores sui accipere solebant singulis annis in aeternum condonabat Henry of Huntingdon and Roger of Hoveden affirm it IV. An Ecclesiastical Synod was held at London under Theobald of Canterbury the King and Noblemen being also present totumque illud concilium novis appellationibus infrenduit In Angliâ namque appellationes in usu non erant donec eas Henr. Wintoniensis Episcopus dum Legatus esset which was about this time malo suo crudeliter intrusit V. Tempore Regis Stephani as I read in John of Salisbury's Polycraticon à regno jussae sunt Leges Romanae quas in Britanniam Domus venerabilis Patris Theobaldi Britanniarum Primatis asciverat Ne quis libro etiam retineret edicto regio prohibitum est What the Roman Laws if you understand the Imperials had ever to do with this State as a rule for squaring our Judgements is not only by this relation made manifest but by an express assertion of the High Court of Parliament which wrought wonders under Richard of Burdeaux whenas Thomas of Woodstock Duke of Glocester Richard Earl of Arundel Thomas Beauchamp Earl of Derby and Thomas Earl of Nottingham appealed Alexander Nevill Arch-Bishop of York Robert de Vere Duke of Ireland Michael de la Poole Earl of Suffolke with others of seducing the Kings facile humour to their own desires the particulars whereof appear in the Thirty Eight Articles comprehended in the Parliament Rolls of the Eleventh of his Reign advice being demanded touching the formality of the Appeal both of Common Lawyers and Civilians they all agreed That it was insufficient in both Laws but answer was given by the Baronage that they would adjudge it by Parliamentary authority neither would they be directed by the Civil Law pur ceque la royalme d' Angleterre n'estoit devant ces heures ny à l' entent de nostre dit Seigneur Roy Seigneures du Parliament unq ' ne serra rules ne governes per la ley civil and by Judgement of Exile with effect they proceeded But this is somewhat out of the lists CHAP. VIII Henry Fitz-L'Empres and his Clarendon Constitutions restored to themselves and purged from the faults wherewith they have been published ADoption and right of Bloud gave after Stephen 's Death the Crown to Henry Plantagenet Fitz l'Empres His first care tending wholly to the good of the State was to have the numerous increase of Castles and Forts which in his Predecessors time through multitude of Province-Tyrants whom they nourished were swollen to the number of M.C.XV. abated so was it by express command performed and the Laws of his Grand-father Beauclerc likewise confirmed A recognition also was made at Clarendon Praesidente Joanne de Oxoniâ de mandato ipsius Regis praesentibus etiam Archiepiscopis Episcopis Abbatibus Prioribus Comitibus Baronibus Proceribus regni of divers Customes and Rites of Government for decision of no small controversies between the King guarded with stout
former Authors Herbert of Doseham William a Monk of Canterbury John of Salisbury and Alan Abbot of Teukesbury into a just Volume collected Huic libello nostro saith the Author that you may know what work they make here inserere studuimus funestum illud famosum Decreti Chirographum consuetudines viz. illas regias apud Clarendonam promulgatas quas ideò hic interseruimus ut legant secula post futura hinc cognoscant quà m justa quà m perspicua fuerit gloriosi Neomartyris Thomae primò Exilii pòst Martyrii causa What contention after confirmation by Oath of the whole Baronage grew hereupon 'twixt the King and that Canonized Arch-Bishop is in every Chronologer of those times enough declared But it cannot be ungratefully received if both for respect to an old English endeavouring Wit and also for matter form and phrase of relation out of Robert of Glocester be made this superaddition No man ne might thenche the love that there was Bitwene the K. H. and the gode man S. Thomas The diuel had enui therto and set 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. uold not beleue the lawes that he fond Ne that his elderne bulde ne the godeman S. Thomas Thought that thing age right neuer law uas Ne sothnes and custom mid strength up ihold And he wist that vre dere Lourd in the Gospel told That he himselfe was sothnes and custum nought Theruore Luther custumes he uould graent nought Ne the K. uould bileue that is elderne ad ihold So that conteke sprung bituene them manifold The K. drou to right law mani Luther custume S. Thomas thom withsed and granted some The Lawes that icholle now tell he granted vawe Zuf a yuman hath a sone to clergi idraw He ne sall without is lourdes icrouned nought be Uor yuman ne mai nought be made agen is lourds will free In the eighteenth of Clarendon Customs is the substance of this particular wher 's Rusticorum interpreted Yumen in this Poet is mentioned To both as a Synonymy is homines used as well in the Law-Annals of later times and in Writs of Ven. fac xii tam milites quam alios liberos legales homines de vicineto c. as in older Constitutions before expressed Gemen is the common allowed Saxon root whence our now usual name of Yeoman had his beginning but my conceit with a painted imposture deceives me if the ancient Latin be not Father of both but in a Dialect different Nor let it be a fault ad Appios Coruncas redire some taste in Yeomen is of Homines but more of Hemones which in Ennius and Festus is not otherwise significant than Themen in English altered only in Character in gemen the Saxon word But to my Law-rhythms again Another thing he granted eke as ye mow nouise Yuf a man of holi Chirch hath eni lay fee Parson other what he be he ssal do therevore Kings service that there ualth that is right ne be vorlore In plaiding and in assise be and in judgement also Bote war man ssal be bilemed other to deth ido He granted eke yuf eni man the Kings traitor were And eni man is chateux to holi chirch bere That holi chirch ne solde nought the chateux there let That the K. there other is as is owne is ne wette Uor all that the felon hath the Kings it is And eche man mai in holi church is owne take iwis He granted eke that a chirche of the Kings fe In none stede ene and ever ne ssold igiue be As to hous of religion without the Kings leve And that he other the patron the gift first gave S. Thomas granted well these and other mo And these other he withsede that did him well woe I. Yuf bituene twei leud men were eni striving Other bituene a leud and a clerc for holi chirch thing As vor vouson of chirch whether shold the chirch give The K. wold that in his court the ple ssold be driue Uor as much as a leud man that the o parti was Chanliche was under the K. under no bishop nas What he styles Lewedmen is by our common phrase Lay-men Leudes in the old Teutonique and Saxon as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Greek from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. a Stone referred as Pindar hath it to that mythick instauration of hard mankind by Deucalion and Pyrrha is equivalent to the Multitude or common people in the present English For yef a Priest be foule on whome we trust No wonder is a leude man to rust But then the ignorant are by it noted rather than who are not Clerks For the same Jeoffrey in another place saith This every leud Uicar and Parson can say Robert of Glocester speaks again II. Another was no bishop ne clerc nathe mo Ne ssolde without Kings leue out of this lond go And than hii ssolde suere upe the boke ywis That hii ne sold purchas no uvel the K. ne none of is III. The thrid was yuf eni man in mausing were ibrought And suth come to amendment ne age were nought That he ne suore up the boc ac borowes find solde To stand to that holy Chirch there of him toky wold IV. The verth was that no man that of the K. huld ought In cheife or in eni servise in mausing were ibrought Bote the wardeins of holy chirch that brought him thereto The K. sede or is bailifes wat be ad misdo And loked verst were thei to amendment it bring And vote hii wolde by their leue do the mausing V. The vist was that Bishoprikes and Abbeis also That vacans were of prelas in the K. hand were ido And that the K. sold all the land as is owne take Uort at last that him lust eni prelat there make And than thulke prelat sould in is chapel ichose be Of is clarks which he wuld to such prelate bise And than wan he were ichose in is chapel right there Homage he solde him do ar he confirmed were VI. The sixt was yuf eni play to chapitle were idraw And eni man made is appele yuf me dude him unlaw That to the Bishop from Ercedeken is appele sold make And from Bishop to Arcebissop and suth none other take And but the Ercebissops court to right him wold bring That he sold from him be cluthe bivore 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 stede and S. Thomas it withsede VII The seuenthe was that plaiding that of det were To yeld wel thoru truth iplight and nought ihold nere Althei thoru truth
it were that ple sold be ibrought Bivore the K. and is bailies and to holy chirch nought VIII The eighth was 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 Englond and eke imartred was Uor he sei there uas bote o way other he must stiffe be Other holy chirch was isent that of right was so fre Absolution of the Prelates Oath which among others confirmed what he soon made retractation of was obtained from Alexander the Third Bishop of Rome who gave an insolent repulse to the Kings Ambassadors sent for his ratification of that which the Baronage had thus concluded The King herewith exceedingly provoked made present dispatch of Letters to every Sheriff in the Kingdom thus pronouncing XIX Praecipio tibi quod si aliquis Clericus vel Laicus in ballivâ tuâ Romanam Curiam appellaverit eum capias firmiter teneas donec voluntatem meam praecipiam omnes redditus Clericorum Archiepisâ—opi possessiones seisias in manum meam omnium Clericorum qui cum Archiepiscopo sunt patres matres fratres sorores Nepotes Neptes pones per salvos plegios catalla eorum donec voluntatem meam inde praecipiam Et hoc breve tecum afferas cùm summonitus fueris XX. Si quis inventus fuerit ferens literas D. Papae this is spoken of before in my Poet vel mandatum aut Thomae Archiepiscopi continens interdictum Christianitatis in Angliâ capiatur retineatur donec inde voluntatem meam praecipiam But in the Annals of Roger of Hoveden Dedo sicut de Regis traditore regni sine dilatione justitia fiat XXI Promulgation also by way of prohibition was made of most of the former diminutions of Papal or Episcopal authority The Clergy-men that were beyond Sea under forfeiture of their Livings were charged by Summons in their places of due residence to return XXII Londoniensis Norwicensis Episcopi summoneantur sint coram Justitiariis Regis ad rectum faciendum quod contra Statuta regni interdixerunt terram Comitis Hugonis in ipsum sententiam anathematis intulerunt XXIII Denarii S. Petri colligantur custodiantur XXIV In the 22th of his Reign at Nottingham celebravit saith Hoveden magnum Concilium de Statutis regni sui coram Rege filio suo coram Archiepiscopis Episcopis Comitibus Baronibus regni sui communi omnium consilio divisit regnum suum in VI. partes per quarum singulas tres Justitiarios Itinerantes constituit Here was the infancy of that form of Circuits by Justices in Eyre whose names and described limits my Author in a Sexpartite division hath remembred Et postea you hear him again fecit D. Rex omnes praedictos Justiciarios jurare super Sacrosancta Evangelia quod ipsi bonâ fide sine malo ingenio has subscriptas assisas custodirent inviolabiliter ab hominibus regni facerent custodiri The subscribed Articles with this Title thus he hath Recorded Assisae Henrici Regis factae apud Clarendon renovatae apud Northamtune XXV SI quis rectatus fuerit coram Justiciis D. Regis de murdro vel latrocinio vel roberia vel receptatione hominum tale facientium vel de falsoneria vel iniquâ combustione per Sacramentum XII militum de Hundredo si milites non adfuerint I here understand by Milites no other than such as were fendatorii or held of some Superior by Knight's service thereby distinguished from milites solidarii or Servientes i. e. hired Soldiers and both from the name of dignity used in ceremonious Chivalry far separated per Sacramentum XII liberorum legalium hominum per Sacramentum IV. hominum de unaquâque villa Hundredi eat ad Judicium Aquae i. e. to the watry Ordeal described with the fiery in Lambard 's exposition of words before his Saxon Laws and in the Antiquities of the Church of Britany published as I suppose by Matthew Parker Archbishop of Canterbury si perierit alterum pedem amittat And apud NORTHAMTVNE additum est pro rigore Justitiae quod dexterum similiter pugnum cum pede amittat regnum abjuret infra XL. dies à regno exulet Et si ad aquam mundus fuerit inveniat plegios remaneat in regno nisi â—ectatus fuerit de murdro vel aliquâ turpi feloniâ per commune Comitatus legalium militum patriae de quo si praedicto modo rectatus fuerit quamvis ad aquam mundus fuerit nihilominus infra XL. dies à regno exeat catalla sua secum asportet salvo jure Dominorum suorum regnum abjuret in misericordia D. Regis XXVI Nulli liceat neque in burgo neque in villa hospitari aliquem extraneum ultra unam noctem in domo sua quem ad rectum habere noluerit nisi hospitatus ille essonium rationabile habuerit quod hospes domus monstret vicinis suis cum recesserit coram vicinis recedat per Diem XXVII Si quis seisitus fuerit de murdro vel de latrocinio vel roberia vel falsoneria inde sit cognoscens vel de aliqua alia felonia quam fecerit coram praeposito Hundredi vel Burgi coram legalibus hominibus id posteà coram Justitiis negare non poterit Et si idem sine seisina coram eis aliquid hujusmodi recognoverit hoc simul coram Justitiis negare non poterit XXVIII Si quis obierit Francus tenens haeredes ipsius remaneant in tali seisina qualem pater suus habuit die qua fuit vivus mortuus de Feodo suo catalla sua habeant unde faciant divisam defuncti dominum suum posteà requirant ei faciant de relevio aliis quae eis facere debent de feodo suo XXIX Si haeres fuerit infra aetatem Dominus feodi recipiat Homagium suum habeat in custodiâ illum quamdiu debuerit alii Domini si plures fuerint homagium ejus recipiant ipse faciat eis quod facere debuerit XXX Vxor defuncti habeat dotem suam partem de catallis ejus quae eam contingit which by the Law in those days was a third part if the dead had left issue but a moity if he were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 XXXI Si Dominus feodi negat haeredibus defuncti seisinam ejusdem Jeodi quam exigunt sustitiarii D.
Book of Ely you may collect that the Probate was supply'd in the life-time of the Testator by Inrolment or leaving an Indented Copy of it with the Alderman or Sheriff of the County in whose County-Court the most of proceedings of Temporal Justice and of the Spiritual also for the Bishop sate with him as in his Consistory were in the Saxon times for so much perhaps may be conjectured out of it as we faithfully here relate it Siwerth in King Edgar's time lying sick at Lindane in the Isle of Elie makes his Testament and sends for Brithnorth Abbot of Elie and divers of the Monks and others of the Gentry and the Abbot writes the Testament in tribus Chirographis coram so are the words of the Book cunctis fecit recitari lectumque fecit incidi unamque partem Chirographi retinuit Siferthus Alteram autem dedit Abbati tertiam vero misit statim per praefatum Brithelmum that was one of the Gentlemen of the Countrey then present Ailwino Aldermano qui tunc temporis degebat in Elie petiit ab illo ut suum Testamentum stare concederet quomodo Abbas illud scripserat ordinaverat apud Lindane coram praedictorum Testimonio virorum Cum itaque Ailwinus Alderman hoc audisset Chirographum vidisset remisit illico ad eum Wlnothum de Stowe cum Brithelmo sciscitatusque est ab eo quid aut quomodo vellet de Testamento suo qui mox per eosdâ—m renuntiavit ei sic suum Testamentum absque omni contradictione vel mutatione se velle stare sicut praefatus Abbas illud in Chirographo posuerat quod ut Ailwinus Alderman audivit totum concessit ut staret sicut ipse Siverthus Testatus erat But in deed in it Lands lying in Durham were devised to the Abbey and so it was not only of personal Chattels The Saxon Laws are very silent of any thing touching Testaments and we must remember while we think of that example of Siwerth of Durham that the Ecclesiastical and Temporal Courts of Common Justice held as one by the Sheriff and Bishop were not severed as now into the Consistory and County Court until the Conqueror did it by a Law yet remaining and elsewhere published In what intercedes from this time until about H. 2. I find not any Testimony that gives light to this purpose as the Saxon Laws so those of the Conquerour and of H. 1. and H. 2. mention nothing that tasts of either kind of Jurisdiction of Testaments only of a Charter of H. 1. extant in Matth. Paris and in the Red Book of the Exchequer this occurrs Si quis Baronum vel hominum meorum infirmabitur sicut ipse dabit vel dare jusserit pecuniam suam ita datam esse concedo This may perhaps seem to denote that the Kings Court determined of Legacies especially of the Kings Tenants But indeed it proves not so much But the eldest passage that proves clear enough here is that which makes the Intrinsecal Jurisdiction to have been in the Church and the Extrinsecal in the Kings Court I mean that which is found in the Treatise attributed to Randall of Glanvill Chief Justice under H. 2. where he sayes that if a Legacy be detained the Executors or other friends of the Testator were to get the Kings Writ to the Sheriff commanding quod justè sine dilatione facias stare rationabilem divisum that is the Bequest or Legacy N. sicut rationabiliter monstrari poterit quod eam â—ecerit quod ipsam stare dibeat c. And it is plain by the words there preceding and subsequent that it hath reference to moveable or personal possessions not to Lands c. So that it seems clear by that in H. 2. his time the Jurisdiction of personal Legacies was in Secular Courts But if the Issue in Secular Courts upon that Writ came to be whether the Testament were true or no or well made or whether the thing demanded were in facto bequeathed Tum sayes he placitum illud in Curta Christianitatis audiri debet terminari quià placitum de Testamentis coram Judice Ecclesiastico fieri debet per illorum qui Testamento interfuerint testimonia secundum juris ordinem terminari that is as it must be understood that upon issue of bequeathed or not bequeathed of Testament made or no Testament the Tryal must have been otherwise than by the practice of the latter Law wherein the Testament is traversable and the Traverse tryable in the Kings Court by Certificate to the Temporal Court from the Ecclesiastical as at this day of Institution Bastardy and Profession in Religion and the like and thence may it be well concluded that at this time by the practised Law the Probate or the Intrinsecal Jurisdiction was in the Church for as the Institution Bastardy and Profession are to be certified because within the Bishops Jurisâ—iction Some recorded Testimonies remain of the first and third and the nature of the Marriage or Cohabitation that directs in the second is to be judged of only in the Spiritual Courts so the Validity of the Testament or the truth of this or that particular Legacy was to be certified from the Spiritual Court because the Probate had there proceeded and the Copy there remaining was most authentick otherwise to what purpose should they have sent to the Spiritual Court in such a case But on the other side as in the case of Institution Profession and Bastardy the consequence of them which are objects of their Extrinsecal Jurisdiction as Descent Exclusion from Inheritance gaining it by a descent cast or legal making a Church full or the like are determinable only at the Common Law so the consequence of a Testament that is the Recoveries of Legacies and such like as it seems by that Writ were in the Temporal not in the Spiritual Court I know the authority of that Treatise is suspected and some of the best and ancientest Copies having the name of E. de N. which I have heard from diligent searchers in this kind of Learning affirmed to have been sometimes E. de Narborough and not R. de Glanvilla it hath been thought to be anothers Work and also of later time But as on the one side I dare not be confident that it is Glanvills so I make little question that it is as ancient as his time if not his Work The Tests of the Precedents of Writs under his name the language especially the name of Justitia alwayes for that which we now from ancient time call Justitiarius and Justitia was so used in Writers under H. 2. and the Law delivered in it tasteth not of any later Age. And howsoever it comes to pass the Regiam Majestatem of Scotland published by Command of David the First under the time of our Hen. 1. hath for the most part the same syllables with this supposed Glanvill and expresly the very passages and the
CHAP. III. In whom after the time of King John BUt in that Charter of Liberties both for the Church and Laity made to the Baronage of England in the seventeenth of King John in Reningmead an express Ordinance is That if any Free-man dyed intestate his Chattels were to be disposed of by the hands of his next of kin by the view of the Church that is direction and advice being thereto given by the Ordinary as I understand saving to all Creditors their debts the words of it were Si aliquis liber homo intestatus decesserit Catalla sua per manus propinquorum parentum amicorum suorum per visum Ecclesiae distribuantur salvis unicuique debitis quae defunctùs eis debebat That Charter of King John is almost the same syllables with the common one that we now use by the name of the Grand Charter of 9 H. 3. exemplified by the Kings Patent of 28 E. 1. But this of Intestates and two or three other Chapters for the Subjects Liberty are more in that of King John's than is found in the Exemplification of 28 E. 1. However Matthew Paris and Roger of Wendover when they speak of H. 3. granting it so refer their Readers to this of King John that they tell us that that of H. 3. was the self same in every particular and therefore omit the repetition of it And indeed although in the common Printed Magna Charta of H. 3. and in the Roll also of 28 Ed. 1. in the Tower where the Exemplification is this Ordinance touching Intestates be wanting yet in very many of the ancientest Manuscripts of the old Statutes that of H. 3. hath the same words as we have here transcribed it from King John's and that in the same place of his Charter as that in King John's that is between the eighteenth Chapter Si quis teneus c. and the nineteenth Nullus Constabularius c. And it is to be understood that the greatest Prelates of the Clergy of that time as Canterbury London Winchester Pandulphus the Popes Nuncto the Master of the Temple and divers other Bishops were on the Kings part when that of King John was granted And it is probable enough that when they saw that a Charter of Liberties must of necessity be granted to the Baronage they so wrought also that they might insert this one for the advantage of their Episcopal Government And they had good colour to think and perswade that some such thing was fit for them in regard it was now clearly taken that some distribution was to be made pro anima intestati the care of souls being the chiefest part of their common pretences for increase of their power and greatness And hence I suppose it soon came to pass that the next of kin had the power of disposition committed by the Ordinaries and that in Letters or otherwise by vertue of that per visum Ecclesiae which was I think the textual ground of right of committing of Administration by the Clergy This of King John's being iterated in Henry the Thirds Charter however omitted in the Exemplification was it seems that provision spoken of in Cardinal Othobon's Legatins Proinde super bonis ab intestato decedentium so are the words provisionem quae olim à Praelatis Regni Angliae cum approbatione Regis Baronum dicitur emanasse firmiter approbantes districtius inhibemus ne Prelati vel alii quicunque bona intestatorum quocunque modo recipiant vel occupent contra provisionem praemissam What provision is it more likely that this was than that of the Grand Charter both of King John and H. 3. and the words à Praelatis dicitur emanasse justifies what we have conjectured of the purpose of the Prelates when they saw they could not but yield with the King to an establishment of Laws by that Charter made indeed in a Parliament of that age The same I suppose that which is meant in the Constitution of Arch-bishop Stafford where it is taken for granted that the Churches power of disposition of Intestates goods pro salute animarum in pios usus was a thing consensu Regio magnatum Regni Angl. tanquam pro jure Ecclesiasticáque libertate ab olim ordinatum c. Where Linwood modestly confesses that he could not find in what Kings time this Ordinance was made But Johannes de Athona upon that of Othobon though he rightly call that provision Provisio Parliamentalis yet most ignorantly and ridiculously tells us that the provision there understood is the Statute of Westminster 2. Cap. 21. cum post mortem which he makes also to have I know not what reference to the Statute of Glocester But this slipt from him either in a dream or through the utmost neglect of those infallible characters of truth that the denoting of times affords us for that Legatin of Othobon was made in London in 53 H. 3. and at such time as that Provision was yet extant in the Magna Charta used by our Lawyers But the Statutes of Westminster the second and of Glocester were under E. 1. the one in the sixth the other in the thirteenth of him how then could Othobon think of it in his Legatin or could John de Athona have thought so if he had allowed the Title of his Gloss which supposes in the point that the Constitutions of Othobon were published in the year 1248. which had it been in 1268. had agreed with truth but doubtless the Numeral Letters of MCCLXVIII were transposed into MCCXLVIII and thence only that Error CHAP. IV. How that so granted by King John's Charter in Parliament hath continued in practice AFter that Law of the seventeenth of K. John it seems the next of kin disposed of Intestates Goods by the testimony and direction of the Church for so per visum denotes as we see in per visum proborum legalium hominum in Writs of Summons and the like but I have not seen any practice of it testified in King John's time And under H. 3. however it were omitted in his Charter at the Exemplification the same visus Ecclesiae continued so sayes Bracton that then lived and was a Judge of that time Si liber homo intestatus subito decesserit dominus suus nil intromittat de bonis defuncti nisi de hoc tantum quod ad ipsum pertineret sc. quod habeat suum Heriott sed ad Ecclesiam amicos pertinebit executio bonorum Yet it seems also that notwithstanding the right of the Church thus ordained and the succession of next of kin so included in the Ordinance both the Lords in some places according to their former right still usurp some power over the disposition of Intestates Goods against the will of the Ordinaries and on the other side also the Ordinaries instead of giving direction for a true disposition of such Goods get possession of them and commit