JOHANNES SELDENUS Armig TRACTS Written by JOHN SELDEN OF THE INNER-TEMPLE Esquire The First Entituled JANI ANGLORVM FACIES ALTERA rendred into English with large Notes thereupon by REDMAN WESTCOT Gent. The Second ENGLAND's EPINOMIS The Third Of the Original of ECCLESIASTICAL Jurisdictions of Testaments The Fourth Of the Disposition or Administration of Intestates Goods The Three last never before Extant LONDON Printed for Thomas Basset at the George in Fleet-street and Richard Chiswell at the Rose and Crown in S. Paul's Church-Yard MDCLXXXIII THE Reverse or Back-face OF THE English JANUS TO-WIT All that is met with in STORY Concerning the COMMON AND STATUTE-LAW OF English Britanny From the first MEMOIRS of the two NATIONS to the Decease of King HENRY II. set down and tackt together succinctly by way of Narrative Designed Devoted and Dedicated to the most Illustrious the EARL of SALISBURY Written in Latin by JOHN SELDEN of Salvinton Student of the Inner-Temple in LONDON and Rendred into English by REDMAN WESTCOT Gent. Haec facies Populum spectat at illa Larem London Printed for Thomas Basset and Richard Chiswell MDCLXXXII To the Right Honourable and truly Noble Lord Robert Earl of Salisbury Viscount Cranborn Baron Cecil of Essenden Knight of the Illustrious Order of the Garter Lord High Treasurer of England Master of the Court of Wards and Privy Counsellor to His Most Excellent Majesty JAMES King of Great Britain France and Ireland Heartily according to his high desert I devote and dedicate AND as it were with consecrated Flowr and crackling grain of Salt I offer up in Sacrifice I am not in condition to do it with a costly Victim or a full Censer GREAT SIR deign with favour to receive these scraps of Collection relating intirely what they are and as far as the present Age may be supposed to be concerned in ancient Stories and Customes to the English-British State and Government and so far forth to Your most Honoured Name Which Name of Yours whilest I one of the lowermost Bench do with dazzled eye-sight look upon most Noble Lord and great Support of your Country I devoutly lay down Upon its ALTAR This small Earnest and Pledge of my Obedience and Duty THE TRANSLATOR'S PREFACE TO THE READER Reader THOU canst not be such a Stranger to thy own Countrey as to need my commendation of the Learned Worthy and Famous AUTHOR of these following Sheets or that I should tell thee what a Scholar a Philologer a Humanist a Linguist a Lawyer a Critick an Antiquary and which proves him an absolute Master of all these and many other Knowledges what a Writer the Great SELDEN was Since it is liberally acknowledged by every body that knows any thing not only at home but abroad also among Foreigners that Europe seldom hath brought forth His Fellow for exquisite Endowments of Nature Attainments of Study and Accomplishments of Ingenuity Sagacity and Industry And indeed to save me the labour of saying any more concerning this Non-pareil in all kinds of Learning His own WORKS which are now under a Review and will e're long be made Publick in several Volumes will sufficiently speak his Character and be a more prevailing Argument to indear Him to thy good Opinion and firm Acquaintance than mine or any other Words can My business now is only to give thee some Account of the Author's design in this little Treatise and of those measures I took in Translating Him that is in restoring him to his own Native Language though his great Genius had made the Latin and several other Tongues as natural and familiar to Himself as the English was To speak first of the Author I do take this Piece to have been one of his first Essays if not the very first wherein he launched into the World and did not so much try the Judgement as deservedly gain the Approbation of the Learned which was certainly one Reason why though the whole matter of the Book be of an English Complexion and Concern yet he thought fit to put it forth in a Latin dress That this was his first Specimen or at least one of the first I gather from the time of his Writing it viz. in the Six and Twentieth year of his Age when I suppose he was not of any very long standing in the Temple I mean in all likelihood whilst he was on this side the Bar. For having fraught himself with all kind of Learning which the University could afford him which could be we must imagine no small time neither as I may be allowed to guess from that passage of his in this Book where he so affectionately recognizeth his Duty and Gratitude to his dear Mother OXFORD who if she had no other Antiquity to boast of is and ever will be Famous for This Her Scholar our great Antiquary who hath also such a Monument to be seen in her publick Library as will make her Glory and his Memory ever to flourish I say having after some competent time taken leave of Academical Institutions and being now engaged into the Study of Law he thought he could not do his Profession a better service than by looking back into former times and making a faithful Collection of what might be Pertinent and Useful to bring down along through all Changes and Vicissitudes of State the Light and Strength the Evidence and Reputation of old Institutes and Precedents to our present Establishments under our Gracious and Happy Monarchy May It as it is in its Constitution to the English people Gracious so be ever in its Success to It self and consequently to Us all Happy Here then thou wilt find the Rights of Government through all Ages so far as our Histories will help us Here thou wilt see from the first our KING setled in his just Power even in his Ecclesiastical Jurisdiction against the Papal Usurpation one shrewd Instance whereof is the forbidding Appeals to the Pope at such a time when the Popish Religion was at its Zenith in this Island that is when People in all probability were most Ignorant Here thou wilt easily be brought to acknowledge the Antiquity and Usefulness of Parliaments though under other Names till after the Conquest when all the Barons that is as that Title did at first import all Lords of Mannors all Men of Estate assembled together for the determination of publick Affairs which Usage because it produced too numerous and cumbersome a confluence was afterwards for better convenience retrenched into a popular Election by the Kings Writ to chuse some of the Chiefest to act for all the rest And sure enough if we in Duty keep up the Royal Prerogative and our Kings as ever they have done and ever I hope will in Grace and Clemency oblige the Peoples Consent in their Representatives we shall alwayes have such Laws such a Government such a Correspondence betwixt Prince and Subjects as must according to the Rules of Humane Prudence adding our Piety to it make this Kingdom of Great
or Borough and before lawful men he cannot deny it afterwards before the Justices And if the same person without Seisin with Seisin in this place is the same as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as we commonly say in our Language taken with the manner shall recognize or acknowledge any thing of this nature before them this also in like manner he shall not be able to deny before the Justices 70. If any one shall dye holding in Frank Pledge i. e. having a free Tenure let his heirs remain in such Seisin as their Father had on the day he was alive and dyed of his fee and let them have his Chattels out of which they may make also the devise or partition of the deceased that is the sharing of his goods according to his will and afterwards may require of their Lord and do for their relief and other things which they ought to do as touching their Fee i. e. in order to their entring upon the estate 71. If the heir be under age let the Lord of the Fee take his homage and have him in custody or keeping for as long time as he ought let the other Lords if there be more of them take his homage and let him do to them that which he ought to do 72. Let the Wife of the deceased have her Dowry and that part of his Chattels which of right comes to her In former times peradventure it was a like generally practised by the English that the Wife and Children should have each their lawful Thirds of the estate each of them I say if they were in being but half to the Wife if there were no issue and as much to the Children if the Wife did not survive her Husband as it was practised by the Romans of old according to the Falcidian Law and of later time by the Novells of Justinian that they should have their Quarter-part For I see that those of Normandy of Arras of Ireland people that lay round about them had the same custom Of this you are to see Glanvill Bracton the Register of Briefs or Writs and William Lindwood beside the Records or yearly Reports of our Law 73. Let the Justices take the Fealties of our Lord the King before the close of Easter and at furthest before the close of Pentecost namely of all Earls Barons Knights and Free-holders and even of Rusticks or Vassals such as have a mind to stay in the Realm and he who will not do fealty let him be taken into custody as an enemy of our Lord the King 74. The Justices have also this to give in charge that all those who have not as yet done their homage and allegiance to our Lord the King do at a term of time which they shall name to them come in and do homage and allegiance to the King as to their Liege Lord. 75. Let the Justices do all acts of Justice and rights belonging to our Lord the King by a Writ of our Lord the King or of them who shall be in his place or stead as to a half-half-Knights fee and under a Knights fee in an old Book which pretends to more antiquity by far than it ought concerning the manner of holding Parliaments is said to be twenty pounds worth of Land in yearly revenue but the number prefixt before the Red Book of the Exchequer goes at the rate of Six Hundred and Eighty Acres unless the complaint be of that great concern that it cannot be determined without our Lord the King or of that nature that the Justices by reason of their own doubting refer it to him or to those who shall be in his place and stead Nevertheless let them to the utmost of their ability intend and endeavour the service and advantage of our Lord the King 76. Let the Justices provide and take care that the Castles already demolisht be utterly demolished and that those that are to be demolished be well levelled to the ground And if they shall not do this our Lord the King may please to have the judgement of his Court against them as against those who shew contempt of his Precept 77. A Thief or Robber as soon as he is taken let him be put into the Sheriffs hands to be kept in safe custody and if the Sheriff shall be out of the way let him be carried or brought to the next Constable of a Castle and let him have him in custody until he deliver him up to the Sheriff 78. Let the Justices according to the custom of the Land cause inquiry to be made of those who have departed or gone out of the Realm And if they shall refuse to return within a term of time that shall be named and to stand to right in the Kings Court i. e. to make their appearance and there to answer if any thing shall be brought in against them let them after that be outlawed and the names of the Outlaws be brought at Easter and at the Feast of St. Michael to the Exchequer and from thence be sent to our Lord the King These Laws were agreed upon at Northampton CHAP. XVIII Some Laws in favour of the Clergy Of forfeitures on the account of Forest or hunting Of Knights fees Who to bear Arms and what Arms. Arms not to be alienated No Jew to bear Arms. Arms not to be carryed out of England Rich men under suspicion to clear themselves by Oath Who allowed to swear against a Free-man Timber for building of Ships not to be carryed out of England None but Free-men to bear Arms. Free-men who Rusticks or Villains not such 79. THat henceforth a Clergy-man be not dragg'd and drawn before a Secular Judge personally for any crime or transgression unless it be for Forest or a Lay-fee out of which a Lay-service is due to the King or to some other Secular Lord. This priviledge of the Clergy the King granted to Hugh the Popes Cardinal Legate by the Title of S. Michael à Petra who arrived here on purpose to advance the Popish interest 80. Furthermore that Arch-Bishopricks Bishopricks or Abbacies be not held in the Kings hand above a year unless there be an evident cause or an urgent necessity for it 81. That the Murderers or Slayers of Clergy-men being convicted or having confest before a Justice or Judge of the Realm be punished in the presence of the Bishop 82. That Clergy-men be not obliged to make Duel i. e. not to clear themselves as others upon some occasion did by single combat 83. He ordained at Woodstock we transcribe these words out of Hoveden that whosoever should make a forfeit to him concerning his Forest or his hunting once he should be tyed to find safe Pledges or Sureties and if he should make a second forfeit in like manner safe Pledges should be taken of him but if the same person should forfeit the third time then for his third forfeit no pledges should be taken but the proper body of him who made the forfeit Moreover
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
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
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
nor upon the death of Arch-Bishop or Bishop or Abbot will I take any thing of the domain of the Church or of the men thereof till a Successor enter upon it And all evil Customs wherewith the Kingdom of England was unjustly oppressed I do henceforward take away which evil usages I do here in part set down 18. If any one of my Barons Counts or others that hold of me shall dye his Heir shall not redeem his Land as he was wont to do in the time of my Father but relieve it with a lawful and due relief In like manner also shall the Homagers or Tenants of my Barons relieve their Lands from their Lords with a lawful and just relief It appears that in the times of the Saxons a Hereot was paid to the Lord at a Tenants death upon the account of provision for War for here in Saxon signifies an Army and that which in our memory now in French is called a Relief Henry of Bracton sayes 't is an engagement to recognize the Lord doth bear a resemblance of the ancient Hereot Thereupon it is a guess saith William Lambard that the Normans being Conquerors did remit the Hereot to the Angles whom they had conquered and stripped of all kind of Armour and that for it they exacted money of the poor wretches To this agrees that which is mentioned in the State of England concerning the Nobles of Berkshire A Tain or Knight of the Kings holding of him did at his death for a Relief part with all his Arms to the King and one Horse with a Saddle and another without a Saddle And if he had Hounds or Hawks they were presented to the King that if he pleased he might take them And in an ancient Sanction of Conrade the First Emperour of Germany If a Souldier that is Tenant or Lessee happen to dye let his Heir have the Fee so that he observe the use of the greater Vavasors in giving his Horses and Arms to the Seniors or Lords John Mariana takes notice that the word Seniors in the Vular Languages Spanish Italian and French signifies Lords and that to have been in use from the time of Charlemain's Reign But these things you may have in more plenty from the Feudists those who write concerning Tenures 19. If any of my Barons or other men Homagers or Tenants of mine I return to King Henry's Charter shall have a mind to give his Daughter or Sister or Niece or Kinswoman in marriage let him speak with me about it But neither will I take any thing of his for this leave and licence nor will I hinder him from betrothing her except he shall have a design of giving her to an enemy of mine 20. If upon the death of a Baron or any other Homager of mine there be left a Daughter that is an Heiress I will bestow her with the advice of my Barons together with her Land 21. If upon the death of the Husband his Wife be left without Children she shall have her Dowry and right of Marriage as long as she shall keep her body according to Law and I will not bestow her but according to her own liking And if there be Children either the Wife or some one else near of kin shall be their Guardian and Trustee of their Land who ought to be just 22. I give order that my Homagers do in like manner regulate themselves towards the Sons and Daughters and Wives of their Homagers 23. The common Duty of Money or Coinage which was taken through all Cities and Counties which was not in the time of King Edward I do utterly forbid that henceforward this be no more done 24. If any one of my Barons or Homagers shall be sick and weak according as he himself shall give or order any one to give his money I grant it so to be given but if he himself being prevented either by Arms or by Sickness hath neither given his money nor disposed of it to give then let his Wife or Children or Parents and his lawful Homagers for his souls health divide it as to them shall seem best And in Canutus his Laws Let the Lord or Owner at his own discretion make a just distribution of what he hath to his Wife and Children and the next of kin But at this time and long since Church men have been as it were the Distributors and Awarders of the Goods of such persons as dye Intestate or without making their Wills and every Bishop as Ordinary in his own Diocess is the chief Judge in these cases John Stratford Arch-Bishop of Canterbury saith it and it is averred in the Records of our Law that this Jurisdiction also concerning Wills was of old long time ago in an ancient Constitution intrusted to the Church by the consent of the King and Peers However in what Kings time this was done neither does he relate nor do I any where find as William Lindwood in his Provincial acknowledgeth It is a thing very well known that after Tryal of right Wills were wont to be opened in the Ecclesiastical Court even in the Reign of Henry the Second Ralph Glanvill is my witness contrary to what order was taken in the Imperial Decrees of the Romans And peradventure it will appear so to have been before Glanvill as he will tell you if you go to him although you have quoted by my self some where a Royal Rescript or Order to a High Sheriff That he do justly and without delay cause to stand i. e. appoint and confirm a reasonable share to such an one that is that the Legatee may obtain and enjoy his right what was bequested to him by the Sheriffs help I come back now to my track again 25. If any one of my Barons or Homagers shall make a forfeit he shall not give a pawn in the scarcity of his money as he did in the time of my Brother or my Father but according to the quality of his forfeiture nor shall he make amends as he would have done heretofore in my Brothers or Fathers time 26. If he shall be convicted of perfidiousness or of foul misdemeanors as his fault shall be so let him make amends 27. The Forests by the common advice of my Barons I have kept in mine own hand in the same manner as my Father had them 28. To those Souldiers or Knights who hold and maintain their Lands by Coats of Male that is per fee de Hauberke that they may be ready to attend their Lords with Habergeons or Coats of Male compleatly armed Cap a pee I grant the Plough-lands of their Domains acquitted from all Gelds and from every proper Gift of mine that as they are eased from so great a Charge and Grievance so they may furnish themselves well with Horse and Arms that they may be fit and ready for my service and for the defence of my Realm 29. I restore unto you the Law of King Edward with other amendments
the Kings Chappel and to do Homage before Consecration Deforcements to the Bishop to be righted by the King And on the contrary Chattels forfeit to the King not to be detained by the Church Pleas of debts whatsoever in the Kings Court Yeomens Sons not to go into Orders without the Lords leave 53. COncerning Appeals if at any time there shall be occasion for them they are to proceed from the Arch-Deacon to the Bishop and from the Bishop to the Arch-Bishop and if the Arch-Bishop shall be wanting in doing of Justice they must come in the last place to our Lord the King that by his precept or order the Controversie may be determined in the Arch-Bishops Court so as that it ought not to proceed any further without the Kings assent This Law long since the famous Sir Edward Coke made use of to assert and maintain the Kings Ecclesiastical Jurisdiction as a thing not of late taken up by him but anciently to him belonging 54. If a Claim or Suit shall arise betwixt a Clergyman and a Lay-man or betwixt a Layman and a Clergyman concerning any Tenement which the Clergyman would draw to the Church and the Lay-man to a Lay-fee it shall by the recognizance of twelve legal men upon the consideration and advisement of the Lord Chief Justice be determined whether the Tenement do appertain to Alms i. e. to the Church or to Lay-Estate before the Kings own Justice And if it shall be recognized or adjudged to appertain to Alms it shall be a Plea in the Ecclesiastical Court But if to a Lay-fee unless they both avow or avouch the Tenement from the same Bishop or Baron it shall be a Plea in the Kings Court But if each of them shall for that fee avouch the same Bishop or Baron it shall be a Plea in that Bishops or Barons Court so that he who was formerly seised shall not by reason of the Recognizance made lose the Seisin till it shall by Plea be deraigned 55. He who shall be of a City or a Castle or a Burrough or a Manner of the Kings Domain if he shall be cited by an Arch-Deacon or a Bishop upon any misdemeanour upon which he ought to make answer to him and refuse to satisfie upon their summons or citations they may well and lawfully put him under an Interdict or Prohibition but he ought not to be Excommunicated By the way seasonably remark out of the Pontificial Law that that Excommunication they call the greater removes a man and turns him out from the very Communion and Fellowship of the Faithful and that an Interdict as the lesser Excommunication separates a man and lays him aside only forbidding him to be present at Divine Offices and the use of the Sacraments I say he ought not to be Excommunicated before that the Kings Chief Justice of that Village or City be spoken with that he may order him to come to satisfaction And if the Kings Justice fail therein he shall be at the Kings mercy and thereupon or after that the Bishop may punish him upon his impleadment with the Justice of the Church 56. Arch-Bishops Bâ—shops and all Persons whatsoever of the Kingdom who hold of the King in capite and have their possessions from our Lord the King in nature of a Barony and thereupon make answer to the Kings Justices and Officers and perform all Rights and Customs due to the King as other Barons do they ought to be present at the Tryals of the Court of our Lord the King with his Barons until the losing of Limbs or death be adjudged to the party tried 57. When an Arch-Bishoprick or Bishoprick or Abbacy or Priory of the Kings Domain shall be void it ought to be in his hand and thereof shall he receive all the profits and issues as belonging to his Domain And when the Church is to be provided for our Lord the King is to order some choice persons of the Church and the Election is to be made in the Kings own Chappel by the assent of our Lord the King and by the advice of those persons of the Kingdom whom he shall call for that purpose and there shall the Person Elect saving his order before he be Consecrated do Homage and Fealty to our Lord the King as to his Liege Lord for his life and limbs and for his Earthly Honour 58. If any one of the Nobles or Peers do deforce to do Justice to an Arch-Bishop Bishop or Arch-Deacon for themselves or those that belong to them the King in this case is to do justice 59. If peradventure any one shall deforce to the Lord the King his Right the Arch-Bishop Bishop and Arch-Deacon ought then in that case to do justice or to take a course with him that he may give the King satisfaction 60. The Chattels of those who are in the Kings forfeit let not the Church or Church-yard detain or keep back against the justice of the King because they are the Kings own whether they shall be found in Churches or without 61. Pleas of debts which are owing either with security given or without giving security let them be in the Kings Court. 62. The Sons of Yeomen or Country people ought not to be ordained or go into holy Orders without the assent of the Lord of whose Land they are known to have been born CHAP. XII The Statutes of Clarendon mis-reported in Matthew Paris amended in Quadrilegus These Laws occasioned a Quarrel between the King and Thomas a Becket Witness Robert of Glocester whom he calls Yumen The same as Rusticks i. e. Villains Why a Bishop of Dublin called Scorch-Uillein Villanage before the Normans time I Confess there is a great difference between these Laws and the Statutes of Clarendon put forth in the larger History of Matthew Paris I mean those mangled ones and in some places what through great gaps of sence disjointings of Sentences and misplacings of words much depraved ones whose misfortune I ascribe to the carelesness of Transcribers But the latter end of a Manuscript Book commonly called Quadrilegus wherein the Life of Thomas Arch-Bishop of Canterbury is out of four Writers to wit Hubert of Boseham John of Salisbury William of Canterbury and Alan Abbot of Tewksbury digested into one Volume hath holp us to them amended as you may see here and set to rights It is none of our business to touch upon those quarrels which arose upon the account of these Laws betwixt the King and Thomas of Canterbury Our Historians do sufficiently declare them In the mean time may our Poet of Glocester have leave to return upon the Stage and may his Verses written in ancient Dialect comprising the matter which we have in hand be favourably entertained No man ne might thenche the love that there was Bitwene the K. H. and the good man S. Thomas The diuel had enui therto and fed bitwen them feu Alas alas thulke stond vor all to well it greu Uor there had ere ibe
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-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
altered being taken for the best Chattle that the Tenant hath at the hour of his death due to the Lord by custom be it Horse Ox c. That Hereot and Relief do not signifie the same thing appears by this that they are both often sound to be paid out of one and the same Tenure and again that the heir alway succeeds into the Estate upon the payment of the Relief but not alwayes upon the payment of the Hereot Lin. 42. In French is called a Relief From the Verb Relever to raise again and take up the Estate which had faln into the Lords hand by the death of the Ancestor It is a summ of money which the new Homager when he is come to age payes to the Lord for his admission or at his entrance into the estate Whence by the old Civilians 't is called Introitus and in Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 This summ was moderately set wherein it differed from Ransom which was much more severe The Kings rates upon his Homagers were thus An Earls heir was to give an hundred Pounds a Barons an hundred Marks a Knights an hundred Shillings at most and those of lesser estate less according to the ancient custom of their Tenures as Spelman quotes it out of the Charter of Henry the Third Pag. 61. lin 11. Of the greater Uavasors They were a sort of Gentlemen next in degree to the Barons They did not hold immediately of the King but of some Duke Marquess or Earl And those that held from them again were called Valvasini or the lesser Vavasors There is little certainty what their Offices or Priviledges were or indeed whence they were so called whether qu. ad valvas stantes or valvae assidentes for their sitting or standing at their Lords door if those of that quality did so as some would have it or that they kept the doors or entrances of the Kingdom against the enemies as Spelman sayes or whether from Vassalâ—i as the Feudists derive the name from that inferiour Tenure they had mediately from the King by his great Lords which seems the more likely because these greater Vavasors who did so hold are sometimes termed Valvasores regii and Vassi dominici that is the Kings Vassals Lin. 27. Her Dowry and right of Marriage In the Latin it is dotem suam maritagium Now Dos is otherwise taken in the English than in the Roman Laws not for that which the man receives with his Wife at marriage a Portion but for that which the Woman hath left her by her Husband at his death a Dowry And Maritagium is that which is given to a Man with his Wife so that 't is the same as Dos among the Romans saith Spelman But this is too general I think that the man should be obliged to return at his death all to his Wife that he had with her beside leaving her a Dowry I am therefore rather inclined to Cowell who tells us Maritagium signifies Land bestowed in marriage which it seems by this Law was to return to the Wife if her Husband dyed before her The word hath another sense also which doth not belong to this place being sometime taken for that which Wards were to pay to the Lord for his leave and consent that they might marry themselves which if they did against his consent it was called Forfeiture of marriage Lin. 35. The common Duty of Money or Coinage So I render the word Monetagium For it appears that in ancient times the Kings of England had Mints in most of the Countreys and Cities of this Realm See Cowell in the word Moniers For which priviledge 't is likely they paid some duty to the chief place of the Mint Thus in Doomâ—sday we read as Spelman quotes it that in the City Winecestre every Monyer paid twenty shillings to London and the reason given pro cuneis monetae accipiendis for having Stamps or Coins of Money For from this Latin word Cuneus which our Lawyers have turned into Cuna from whence the Verb Cunare comes our English word Coyn. Now it is more than probable that the Officers of the Chief Mint might by their exactions upon the inferiour Mints give occasion for the making of this Law Lin. 42. Or Children or Parents By Parent here we are to understand not a Father or Mother but a Cousin one a-kin as the word signifies in French and as it is used in our Laws And indeed the Latin word it self began to have that sense put upon it in vulgar speech toward the declension of the Empire as Lampridius informs us Pag. 62. lin 21. A pawn in the scarcity of his money That is if he were not able to pay his forfeit in specie i. e. to lay down the money he was to give security by a pawn of some of his Goods or Chattels See Cowell in the word Gage This in Latin is called Vadium a pawn or pledge from Vas vadis a surety Hence Invadiare to pawn or ingage a thing by way of security till a debt be paid Lin. 23. Nor shall he make amends From the French amende in our Law-Latin emenda which differs from a Fine or mulct in this that the Fine was given to the Judge but Amends was to be made to the Party aggriev'd Now there were three sorts of this Amende the Greater which was like a full Forfeiture the Mid-one at reasonable terms and the Least or Lowest which was like a gentle Amercement This distinction will help to explain the meaning of this Law L. 30. Per fée de Hauberke This in Latin is called Feudum Hauberticum i. e. Loricatum sayes Hotoman from the French word Haubert that is a Coat of Mail when a Vassal holds Land of the Lord on this condition that when he is called he be ready to attend his Lord with a Coat of Mail or compleat Armour on Now Haubert as Spelman tells us properly signifies a High Lord or Baron from Haut or hault high and Ber the same as Baro a Man or Baron And because these great Lords were obliged by their place and service to wait upon the King in his Wars on Horse-back with compleat Armour and particularly with a Coat of Mail on hence it came sayes he that the Coat of Mail it self was also called Haubert though he doth afterward acknowledge that the word is extended to all other Vassals who are under that kind of Tenure But then at last he inclines to think that the true ancient writing of the word is Hauberk not Haubert as it were Hautberg i. e. the chief or principal piece of Armour and Berg he will have to signifie Armour as he makes out in some of its compounds Bainberg Armour for the Legs and Halsberg Armour for the Neck and Breast and derives it from the Saxon Beorgan i. e. to arm to defend Add to this saith he that the French themselves and we from them call it an Haubergeon as it were Haubergium Lin. 33. From
we find there Centum solidi dentur vel marca auri where if solidi stand for shillings for they may be taken for soulx as the French call them a Mark of Gold is made of equal value with 5 l. Sterling And thus three hundred Marks of Gold come to Fifteen hundred pound I confess after all most of these accounts of the Mark Gold or Silver may be admitted of as having possibly at some time or other been true since mony both in its Coyns and Summs hath in several Ages of the World risen and fallen according to its plenty or scarcity Lin. 42. Being arighted and accused of any matter Or rather in the Law-spelling arrested in Latin rectatus that is ad rectum vocatus convened before a Magistrate and charged with a crime Thus ad rectum habere is in Bracton to have a man forth coming so as he may be charged and put upon his tryal It may be also rendred taken upon suspicion It is written sometime retatus and irretitus Pag. 70. lin 33. To give suretiship for the Remainder I confess I do not well know how to apply to this place that sense which our Common Law takes the word Remainder in for a power or hope to enjoy Lands Tenements or Rents after anothers estate or term expired when an estate doth not revert to the Lord or Granter of it but remains to be enjoyed by some third person What if we say that as Bishops could not because their estates are of Alms grant any part of their Demeans ad remanentiam for ever or to perpetuity so here Excommunicate persons were not obliged dare vadium ad remanentiam to find sureties for continuance or for perpetuity that is for their future good behaviour but only to stand to the judgement of the Church in that particular case for which they were at present sentenced CHAP. XI Pag. 72. lin 24. If a Claim or Suit shall arise In the Latin si calumnia emerserit a known and frequent word in our Law which signifies a Claim or Challenge otherwise termed clameum Lin. 37. Till it shall by Plea be deraigned or dereyned which is in French dereyné in the Latin disrationatum which as it hath several significations in Law so here it imports after a full debate and fair hearing the determination of the matter by the judgement of the Court. CHAP. XII Pag. 75. lin 2. By the name of Yumen The same say some as the Danes call yong men Others derive the word from the Saxon geman or the old Dutch Gemen that is common and so it signifies a Commoner Sir Tho. Smith calls him Yoman whom our Laws term legalem hominem a Free-man born so Camden renders it by Ingenuus who is able to spend of his own free Land in yearly Revenue to the summ of Forty Shillings such as we now I suppose call Free-holders who have a Voice at the Election of Parliament-men But here the word is taken in a larger sense so as to include servile Tenure also or Villenage CHAP. XIII Pag. 77. lin 5. Leude-men From the Saxon Leod the common people It signified in Law a Subject a Liege man a Vassal a Tenant hence in High-dutch a Servant was called Leute in Old English a Lout But in common acception Lewd was formerly taken for a Lay-man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 one of the people or for any illiterate person Now it is used to denote one who is wicked or loose and debauched CHAP. XIV Pag. 79. lin 8. The States of the Kingdom the Baronage He means the whole Parliament and not only the House of Lords by the word Baronage For though by Barons now we properly understand the Peers of the Realm yet anciently all Lords of Manours those who kept Court-Baron were styled Barons Nay Spelman tells us that all Free-holders went by that name before the Free-holds were quit letted out into such small pittances as now they are while Noble-men kept their Lands in their own hands and managed them by their Vassals Cowell gives this further account of those Lords of Manours that he had heard by men very learned in our Antiquities that near after the Conquest all such came to Parliament and sate as Nobles in the Upper House But as he goes on when by experience it appeared that the Parliament was too much pestered with such multitudes it grew to a custom that none should come but such as the King for their extraordinary wisdom or quality thought good to call by Writ which Writ ran hâc vice tantùm that is only for this turn So that then it depended wholly upon the Kings pleasure And then he proceeds to shew how after that they came to be made Barons by Letters Patents and the Honour to descend to their posterity Lin. 27. By way of safe pledge That is to oblige them to give security for the parties appearance against the day assigned who in case of default were to undergo the dammage and peril of it Pag. 80. lin 7. St. Peter's pence These Peter-pence were also called in Saxon Romescot and Romefeoh that is a Tribute or Fee due to Rome and Rome-penny and Hearth-penny It was paid yearly by every Family a Penny a house at the Feast of S. Peter ad Vincula on the first day of August It was granted first sayes our Author out of Malmesbury by Ina or Inas King of the West-Saxons when he went on Pilgrimage to Rome in the year of our Lord 720. But there is a more clear account given by Spelman in the word Romascot that it was done by Offa King of the Mercians out of an Author that wrote his Life And it is this That Offa after thirty six years Reign having vowed to build a Stately Monastery to the memory of St. Alban the British Protomartyr he went on Pilgrimage to Rome Adrian the First then Pope to beg Indulgences and more than ordinary Priviledges for the intended work He was kindly received and got what he came for and the next day going to see an English School that had been set up at Rome he for the maintenance of the poor English in that School gave a Penny for every house to be paid every year throughout his Dominion which was no less than three and twenty Shires at that time only the Lands of S. Alban excepted And this to be paid at the Feast of S. Peter because he found the body of the Martyr on that day for which reason it was also called S. Peter's Penny And although at last these Peter-pence were claim'd by the Pope as his own due and an Apostolical right yet we find that beside the maintenance of a School here mentioned for which they were first given they have by other Kings been appropriated to other uses Thus we read that Athelwolf Father to King Alured who was the first Monarch of this Isle granted three hundred Marks the summ total of the Peter-pence here bating only an odd Noble to be paid yearly
the sixteen Yard-lands which make up the Fee at so much they make the summ of one hundred Shillings or five Pound which was the ancient Relief of a Knights fee. But this is a mistake either of the Author or the Citation it is six Shillings three Pence which makes that just summ from whence we learn also what proportion was observed by the Lord in setting and demanding of the Relief upon the next Heir after his Ancestor's decease Further in the Kings Writ as Glanvil cites it it is said that twelve Plough-lands make one Knights fee which allowing to a Plough-land one hundred twenty Acres amounts to one thousand four hundred and forty Acres In the main as to the value of a Knights fee 't is enough what Cowell tells us that it was so much inheritance as was sufficient yearly to maintain a Knight wiâ—h convenient Revenue which in Henry the Thirds dayes Camden sayes was fifteen Pounds and Sir Thomas Smith rates at forty But to confirm the account which our Author here gives us we find in the Statute for Knights in the first of Edward the Second that such as had twenty Pounds in Fee or for term of life per annum might be compelled to be Knights And as to the various measure of Land of which we have had a remarkable instance in this business before us Spelman hath given us good reasons for it since where the Land was good they might probably reckon the fewer Acres to a Yard-land a Hide a Knights fee c. and where it was barren they might allow the more Beside that some Lords who lett these Fees might be more bountiful and profuse others more parsimonious and severe to their dependents and that the services which were imposed upon these Fees might in some Mannors according to custom be lighter in others upon agreement and covenant more heavy All which might strangely diversifie the account as to the quantity or measure of those Lands which were to make up a Knights fee. CHAP. XVIII Pag. 91. lin 4. A little Habergeon or Coat of 〈◊〉 In Latin Halbergellum a diminutive from the Saxon Halsberg armour for the Neck and Breast It is written also Haubergellum and Hambergellum They mistake themselves who translate it a Halbert in French Halebarde anoffensive Weapon for a Coat of Mail which is armour of defence in French Haubert or Hauberk whence Fée de Hauberk which we have already explained somewhere before Lin. 5. A Capelet of Iron A little Iron or Steel Cap instead of a Head-piece or Helmet which the better sort wore For by comparing this with the two fore-going Sections we find they were to have a difference of Arms according to their different Quality and Estate Lin. 7. A Wambais Wambasium or Wambasia so called I suppose because it reached over the belly or womb was a Jacket or Coat of defence used in stead of the Coat of Mail perhaps like unto our Buff-coats though probably not of Leather only but of any other material as the Wearer should think fit Pag. 92. lin 6. Timber for the building of Ships In Latin here Mairemia written also Meremia and Meremium and Maremium and Muremium from the French Meresme Timber to build with Lin. 14. Stercutius Saturn so called as being the first Inventer of dunging Land Lin. 28. Vnder the title of Free-men Here the Author himself hath in the Latin added a Marginal Note which I thought fit to remove to this place He saith that among the ancient Germans the Alway free the Middlemost free and the Lowermost free were as it were the Classes and several Ranks of the lesser Nobles i. e. of their Gentry For the title of Nobless as also in our Vulgar Language was given only to Princes and Great Men. And for this he quotes Munster Cosmog lib. 3. CHAP. XIX Pag. 93. l. 32. In the borders of the Carnutes A people of France whose Countrey is called Chartrain and their chief City Chartres about eighteen Leagues from Paris Eastward That Town eight Miles off called Dreux in Latin Drocum was so named from the Druids who dwelt there at first and likely enough afterward often resorted thither P. 94. l. 37. Of the three Estates the King the Lords and the Commons There are indeed three Orders or Estates acknowledged by true Divines and sound Lawyers in the English Government to wit the Lords Spiritual the Lords Temporal and the Commons of England But the fundamental mistake of our Learned Author is that he hath joyned those two sorts of Lords whose very character shews them to be of a distinct species though as to the publick Welfare and the Kings Service they ought to be of one and the same interest into one Estate and to make up the third Estate thought himself obliged to bring in the King himself for one who is Lord paramount over all the three and by this means ipsam Majestatem in ordinem redigere I call this a fundamental mistake as a most probable ground of Rebellion as it was in the Barons Wars and in our late Civil Broils inasmuch as if the King make one of the three Estates as they fancy he doth and hath as they do from thence conclude he hath no more but a co-ordinate power with both or either of the other two Estates that then it is lawful for both or either of those Estates in case of publick grievances to quarrel the King their co-ordinate if he will not give way to their redress that is if he will not consent to do what they would have him to do and upon his refusal of so doing to raise War against him to sequester and murder his Loyal adherents to destroy his Royal Person and finally if he escape the hazards of Battel when they get him into their hands to bring him to account for a pretended male administration and the violation of a trust which God and not the People put into his hands and having gone so far that they may if possible secure themselves to put the Monarch to death and to extirpate Monarchy it self This was the ground and method of our late Republican policy and practice Wherein yet they did not foresee what examples they set against themselves supposing this Doctrine of the three Estates in their sense to be true and that King Lords and Commons had an equality of trust and parity of power that the same outrage which the Rump-Commoners acted against the King to the destroying of him and against the Lords to the outing of them and voting them useless and dangerous as to their share of Government might one time or other be more plausibly promoted and more effectually put in execution by one or both of the other two Estates with the help and assistance of great numbers of the Commoners as there ever will be in such National divisions against themselves and all men whatever of such pernicious and destructive principles No. This false Doctrine I hope will