which was written in the latter end of the raign of this King Henry the third have this Commandment to the partie quod sit coram Justiciariis meis apud Westmonasterium and not coram me vel Justiciis meis as the former form in Glanvill was And thus began the Court which because it hath power over Common-Pleas wee now call the Common-Place About this time also or not long after some other Courts of Justice were likewise opened The booke called Britton as it may partly appear by Henry Bracton but more plainly by John Britton which followed immediatly after him for in the beginning of the raign of King Edward the first this John Britton then Bishop of Hereford whose name Mr. Bale in his Centuries or his Printers mistaketh and calleth Bekton being singularly learned in the Laws of the Realm did at the commandment of that King and in his name compile a book now imprinted and named Britton in the beginning whereof he d videth all jurisdiction thus First that the King himself had soveraign jurisdiction above all others in his Realm to Judge in all causes whatsoever Secondly that the Marshall of the Kings house had the place of the King to hear and determine the pleas of the Crown within the verge and that the Justices in Erie had like authority in every County once in 7. years Thirdly that the Justices which followed the King wheresoever he went and sate in his place had conusance of erronious Judgement Appeals and other matters of the Crown Fourthly That the Coroner of the Household had his proper power within the verge and that he and others had the order of weight and measure throughout the Realm Fiftly That Sheriffs Coroners Hundredors Burgesses Serjeants and Beadles had and so have their Courts within each of their particular limits Sixthly That Justices being continually at Westminster have power over Common Pleas. Seventhly That the Exchequer at Westminster had authority concerning the Kings Debts and Feeds and all things incident thereunto And Lastly that other Justices had the charge of Assize of the deliverance of Gaols in every County Forasmuch as after this distribution of power to hold plea thus made some of these Courts would not contain themselves within their appointed limits but sought to enlarge their authority by usurping jurisdiction that was appropriate to others Articuli super Chartas ca. 3 4 5. The same King did by Parliament holden in the xxviii yeare of his raign confirm that great Charter for ever and in certain articles as he did call them set forth upon the said Charter did then by like authority of Parliament enact that they of the Exchequer should not take knowledg of any Common Plea That the Seneschall or Steward and the Marshall of the Kings houshould should not have plea in hearing of trespasses Seneschall os Sein a house and Scale skilfull So steward of Stow a place and Wear a keeper contracts and covenants made within the verge And the Chancellors and the Justice of the Kings Bench now the upper Bench should follow him wheresoever he went to the end that he might alwaies have men about him that were able to deliver Law to such as should require it Hitherto as you see there is no express mention in Britton either of the Court of Admiralty the Constables Court or the Chancery and therefore it remayneth that we labour to find out from whence they also fetched their beginnings and that shall we the more easily do if we give heed to this that Britton hath already opened for he leaveth the soveraign jurisdiction of all causes in the King The Admiralâ—y The Brittish and Saâ—on Kings had their Chancellours as Etheldred who began his raign 978 Edw. the Confessâ—â— had Reâ—nbâ—ld for Inâ—â—â— Chaâ—â—â—lor Edgâ—â— had Aâ—uâ—ph and â—â—ded and Edmund had Turkâ—ull and Kâ—ag Atheâ—stone had Wolfaid for his Chanâ—â—lor Cooke 4. Inst â— 97. and Ethel baâ—d had Turketill for his Chancelor about 718. so that whatsoever the King hath particularly de ivered out to others his Justices Commissioners and Delegats that still remaineth in himself and was exercised either by himself in person or by his Chancellour Councellors of a State and Justices of Law that continually attended on him for that service And therefore first concerning the Admiralty I think that the decision of marine causes was not put out of the Kings house and Committed over to the charge of the Admirall untill the time of King Edward the third whereunto I am led partly And then after this subscription of him and his Queene and of the Archbishops and Abbots one Renibaldus is named Cancelarius and in the end of all after the date of the Chreme it is vvritten thus Siwardus Notarius ad vicem Renibaldii Regiae dignitatis Cancellarii hanc cartam scripsi subscripsi The next year after this King VVilliam the Conquerour gave by another Charter to the same Abby sundry Lands in exchange for Windsor the which King Edward had bestowed on them and in the end of this grant he likewise saith Ego Willielmus Dei Gratia Rex Dux Normannorum atque Princeps Cenomannorum hoc scribi precipi scriptum hoc signo deminicae crucis †confirmando stabilivi nostraeque imaginis sigillo insuper assignari curavi And then in order as before it followeth Ego Mauritatus Regis Cancellarius favendo relegi sigillavi Hereby it appeareth that the office of the Chancellor then was at the first to make and seal the Instruments that passed from the Prince and this I call his originall duty because it cannot credibly be shewed of any history as I think that ever there was in England any of sealing of writings or mention of the name of Chancellor before the dayes of this Edward who having spent agreat part of his age in Normandy first brought the use of the Seal from thence into this Nation See before of the antiquity of Chancelors and with it I suppose the name of Chancelor In whose time also Leofricus the Britain is the first Chancelor I find named For that we learned of the Normans our manner of sealing Ingulphus the Abbot of Croyland which came out of Normandy hither in the Train of the Norman Conquerour assureth us writing thus Normancii Cyrographorum confectionem cum crucibus aureis aliis signaculis sacris in Anglia formari solitam in Cerae impressionem mutant c. And that the name of him that kept the seal came out of France also it may be probably conjectured both by the word which we found nearer to the pronunciation of the French than of the Latin and also by the office it self which hath been exercised in France under the same name and nature that we use it ever since the time of Charlemaigne at the least And so it is manifest that the Chancelor did bear this name and had the Charge of the Kings seal and writings both before and in
Barons of the Realm the rather because that speech is accompanied with the words Common-Councell and for that also the selfe same Author doth afterward use the words Comunis assensus Baronagii when he intendeth to signifie a just Parliament Ingulphus who died before 1109. saith Rex Eldredus convocavit magnates Episcopos proceres optimates ad tractandum de publ negotiis Regni Howbeit since I labour not with any penurie of proof I wil relinquish the advantage of this matter desiring only that they may be called to memorie which Polydore Virgil hath before acknowledged concerning the restitution of the form of the Parliament made by this very same King of whom also the Saxon Chronicles of Peterborough Abby do testifie that in the yeare after Christ 1123. he sent his writers over all England and bad his Bishshops Abbots and all his Theignes which signifie asmuch as Barons before that they should come to his Witena Gemote on Candlemas day to Glocester But to leave him and to leap over Stephen because he hath striven longer for the Crown then he enjoyed it King Henry the second saith Mathew Paris in the year of our Lord Christ 1185. Convocavit Clericos Regni populum cum omni nobilitate apud fontem Clericorum And yet again to passe over his two sons Richard and John whereof the one spent the most part of his Raign in battell abroad and the other in Civill warrs at home I read in the same Author that King Henry the third did in the year of our Lord 1225. call together Omnes Clericos laicos totius regni Which assembly the same writer also in some places expresseth by the words Vniversitas regni but what need I to hang long on the credit of Historians seeing from this time downward the authentique writers of the Parliaments themselves do offer mee present help The great Charter of England which passed from this King about this time and for which the English men had no lesse striven than the Trojans for their Helena beareth no shew of an Act of Parliament and yet I will prove by the Depositions of two sundry Parliaments That it was made by the comon assent of all the Realme in the time of King Henry the third for so saith the statute called Confirmatio Chartae Anno. 25. E. 1. in flat Termes and the statute made at Westminster Anno. 25. E. 3. Cap. 1. saith that it was made by the King Peeres and Commons of the land in the 20. year of the same King Henry the statute of Mertâ—n was published which saith thus Provisum fuit consessum tam a praedictis Archiepiscopis Episcopis Comitibus Baronibus quam ab ipso rege aliis And in the 52. yeare of his raign was the statute of Marle-bridge made provideat as it self speaketh ipso domino rege ac convocatis discetioribus eiusdem Regni tam majoribus quam minoribus provisum est statutum c. The statute of Westminster the first which was made in the third yeare of E. 1. hath this title The establishments of King Edward made by this Councell and by the Assent of the Archbishops Bishops Abbots Earles Barons and all the Comonalty of the land thither sumoned The statute made at Gloucester in the 6. year of the same Kings raign is there said to be thus made Purrelant le Roy apelles le pluis discretes de son Royalme auxibien des greinders come des meindres establie est concordantment ordenie To draw to an end King Edward the second held a Parliament in the 14. year of his raign wherein are these words Le Roy per assent des Prelates Counts Barons tout le Comunaltie de son Realme en le Parliament c. and the like speech hath he in another statute that he made Ne quis occasionetur pro morte Petri de Gaveston I do not think that I shall need to speake for further proofes amongst the Records of Parliaments after this time for they do from henceforth not only shew themselves in such store and plenty but also set forth the severall states themselves the duty of their presence the paines of their default or departure and sundry other circumstances so particularly and plainly that as I might well be charged if you would stand upon them in a matter not doubtfull to have used speech nothing at all needfull and yet least any man should suspect that any of the two estates of this Assemblie derived his voice in Parliament from the authority of any of these later lawes I must leave him to understand that in one short Statute of Parliament holden in the 5 year of King Richard 2. statute 2. ca. 4. he may reade it 4. severall times plainly spoken that this was done anciently and of old time So that here again also Prescription is ready to serve the turne and to say the truth this one law may stand for an Interpreter of all the rest for whether they be said to be made by the King and his Barons or by the King and his Clergie and Laytie or by the King and his discreeter men both great and small or by the common Assent of all the Realme as I have already shewed or by the King and his Wisemen or by the King and his Councell or his Comon-Councell or by the King Earles Barons and other Wisemen or after such other like phrases whereof you may meet with many in the volumes of Parliament it cometh all to this one point namely that the King his Nobilitie and Commons did ordaine them And which is more if you shall find any act of Parliament seeming to passe under the name and authoritie of the King only as some have that shew indeed yet you must not by and by judge that it was established without the Assent of the other estates To take one example for the rest The statute of Gloucester made the 6. E. 1. speaketh thus Our soveraigne Lord the King for the amendment of the land hath provided the statutes under-written c. But yet the statutes made at Westminster in the 13 year of that King and the statute of Quo Warranto set forth in the â—0 year of that King also â—eciting that statute of Gloucester do plainly acknowledge the one that it was provided by the more discreet men of the Realme aswell of the high as of the low degree being called together and the other that it was made by the King calling together the Earles Prelates Barons and his Councell And therefore it was well noted by Judge Brook That though magna Charta and sundry other old statutes do run in the name of the Prince only yet the other estates are supplyed in all good understanding Againe whether the forme of an Act be thus The King with the Assents of the Lords and Commons doth establish or thus It is enacted at the request of the Lords and Commons whereto the King assenteth or thus by the
might not be put off to shew cause from day to day which rather increaseth trouble and charges than either furthereth the suit for the hearing or benefits the parties in their cause Which thing whether it might be more couvenient than the present manner of motions I will leave to the judgement of such as have more wisdom to devise and power to execute And will sum up the rest of our Courts and make an end The Court of the Dutchy or County Palatine of Lancaster which is by a late Act of Parliament committed to the custody of a Commissioner grew out of the grant of King Edward the third The Court formerly called The Dutchy Court the jurisdiction whereof is now committed to a Commissioner or Commissioners County Palatine of Lanc. erected in Parliament 50 E. 3. and Iustices of Assises Gaole delivery and of the Peace have been since the erection of it Cook lib. 4. f. 204. 205. who first gave that Dutchie to his Son John of Gaunt and endowed it with such royall rights as the County Palatine of Chester had And forasmuch as it was afterward extincted in the person of King Henry the 4th by reason of the union of it with the Crown of the Realm the same King knowing himself more rightfully Duke of Lancaster then King of England determined to save his right in the Dutchy whatsoever should befall the Kingdom And therefore he separateth his Dutchy from the Crown and setleth it so in the naturall persons of himself and his heirs as if he had been no King or Pollitique Body at all in which manner it indured during the reign of King Henry the first and of King Henry the 6th that were descended of him But when King Edward the 4th had by recovery of the Crown recontinued the right of the House of York he feared not to appropriate that Dutchie to the Crown again And yet so as he suffered the Court and Officers to remain as he found them And in this manner it came together with the Crown to King Henry the 7th who liking well of that policy of King Henry the fourth by whose right he also obteined the Kingdom made by separation of the Dutchie as he hath done and so left it to his posterity It appeareth in our Books of the Tearms of King Edward the 4th The Star Chamber and the Report of cases happening under the usurpation of Richard the third This Court was in being before 28 E. 3. Cook lib. That sometimes the King and his Counsell And sometimes the Lord Chancellour and other great personages did use to sit Judiciall in the place then and lately called for that it is decked with certain Stats the Star Chamber But forasmuch as be like that Assembly was not ordinary therefore the next King Henry the 7th and his Son Henry the 8th took order by two severall Laws That the Chancellour assisted with others there named should have power to hear complaints against Reteinors Embraceries misdemeanours of Offices and such other offences which through the power and countenance of such as do commit them do lift up the head above other faults and for the which inferiour Judges are not so meet to give correction And because that place was before time dedicated to the like service it hath ever since also been so used untill it was taken away in the late King Charls his reign The Court of Requests The Court of the Requests being of the same nature as I said with the Chancery took beginning by Commission from King Henry the 8. before which time the Masters of the Requests had no warrant of ordinary Jurisdiction This Court had no warrant by act of Parliament or prescription to establ shit Cook lib. 4. fol. 97. but travailed between the Prince and Petitioners by direction from the mouth of the King The same King also established one Court of President and Counsell in the Marches of Wales 34. 35. H. 8. The Court of the Marches of Wales and that of the North parts were taken away in the late K Ch. his reign Anno 17. Car. And another like Court of President and Counsell in the North parts which Court in Wales was a Court of Law in its principall Jurisdiction although it did withall exercise other powers of equity by vertue of other severall Commissions that did accompany the same and the Court of York was in its principall Jurisdiction Equity and did exercise other powers by vertue of other Commissions Court of Wards The Court of Wards began about the 32th year of the reign of King Henry the 8 who also in the next year after added thereto the office of the Masters of the Liveries and withall conjoyned the names ordaining that it should be called The Court of his Wards and Liveries The same King likewise had erected one Court of the generall Surveiours of his Lands and one other of the Augmentations and Revenues of his Crown and a third Court of the first fruits and Tithes of Benefices But all these were afterwards dissolved and by Queen Mary united to the Court of Exchequer Thus having run along these Courts deriving them from the Crown I might proceed yet further to shew the originall and beginnings of some Courts erected by the late Parliament and the nature and beginning of the High Court of Justice that was erected in Westminster Hall Anno 1648. but they being so fresh in the memory of this age I shall not need to make mention thereof FINIS
The beginning of the Parliament there proceedeth a most exquisite consent and delicious melody the begining of vvhich manner of consultation Parliaments holden long before the Conquest Mirror c. 8 sect 2 and namely vvith us of this Realme I see not hovv I can derive it from any other time then from that in vvhich the Germans or English nation did set their first foot on this land to invade vade it for Cornelius Tacitus vvriteth thus nec regibus infinita potestas de minoribus rebus principes consultant de maioribus omnes Neither did they together vvith the change of the soile make change of this their vvonted manner of deliberation for it is yet extant in monuments left behind them The conâ—â—nuance of the Parliament untill the Conquest that after their coming hither they frequented the same order in counselling vvhich they had used in their ovvne countrey before These two Kings are great exemplars of grave wisdom and would not trust their own judgements in a â—â—tter of so â—â—gh concernment but consulted their wisemen about it knowing that plus vident oculi quam oculus for proofe vvhereof I might call Beda the Saxon historiographer to vvittnesse vvho reporting that the Christian faith tooke roote by little and little amongst them in their particular Kingdomes vvithin this land vvriteth that King Edwyne of Northumberland vvould not embrace the preaching of the Gospell before he had communed and consulted with his freinds and Nobility and Wisemen and that Sigeberth the King of Eastsex being likevvise moved to be baptized did first call a Councell of his subiects and finding them all to favour the motion did then himselfe also assent unto it But because the Synodes or Parliaments themselves be most faithfull witnesses of their owne doings and for that also the kingdome of the west saxons prevailing over the rest and meeting as it were all their crownes to make on for hereselfe did in the end become mistresse or Monarch of the whole Heptarchie or seven Kingdoms into which this Land was first divided I will for a while leave historians and come to the Synodes first shewing by one or two examples what persons were wont to be present at the parliament of that kingdome and then confirming the like to have been used after such time as the whole land was reduced to one entire estate and monarchie Ine the King of Westsex who began his reign about the year of the Incarnation of our Lord Christ 712. begineth his Parliament thus I Ine by Gods guift King of the west Saxons with the advice and teaching of Cenred my father Ireledde my Bishop and Ercenwold my Bishop and with all mine Aldermen and eldest wisemen of my people and also a great assembly of Gods servants was carefull concerning the health of our soules and the establishment of our kingdome c. Now let us see if three estates of Parliament that is to say the King the Nobilitie and Commons may besound here First the Kings name is expresly added the Noblitie is signified under these Bishops and Aldermen for before the division of the Realme into Shires every large Territorie had an Alderman or governor who was after the allotment into shires for the most part an Earle in token whereof all our Earles to this day do beare the name of one shire or other The Commonalty is partly included in the words the Eldest wisemen of my people which betoken the laytie and partly in the words A great assemblie of Gods servants vvhich do notifie the Clergie so called then as it may appeare by the first Chapter of the very same lavves for that they vvere consecrated to Gods service And lest any man should thinke that these estates vvere called together more for their advice and counsell to be given to the king then for any authority or interest that they had in making the lavve the preamble calleth those lavves our dooms or Iudgments And the purveivv saith wee bid or command in the plurall number vvhich also may not be restrained to the King only for honour sake as vvee novv use to speake for he is there named I Ine in the singular only Thus much I note once for all That I be not hereafter troubled to repeat the same thing often About one hundred yeares after the death of this Ine one Aldred a King of the vvest Saxons also as he calleth himselfe but rather King of the English men and Saxons as Asserius saieth that vvrote his life did as he telleth in his preface to his lavves gather together and put in vvriting certain ordinances made by vvise men in sundry Synods of sundry former Kings as namely Ine aforesaid Offa King of middle England and Ethelbert of Kent the first christned Prince of all the Saxon nation vvhich collection of lavves he also saieth that he shevved to all his vvise men and they also thought them meet to be observed but what maketh it to the three estates will some man say that the kings and their wisemen which may well seem to be but their privy Counsellors did establish lawes yes very much for here the word Witena wisemen doth include the Nobilitie and CoÌ„mons because they be Counsellors of the Realme for the time in respect whereof the assemblie of them was of some called Witena Gemote a meeting of the wisemen as I told you And of other it is termed Commune consilium Regni the comon counsell of the Realme and that this must be so understood in this place I will use none other argument then the testimonie of Alfred himselfe drawne out of the same place for he saith as you have heard that the lawes of the King Ine were made by a Synode of wisemen and what those wisemen were you here also understand by the report of King Ine himselfe And the stile of his owne lawes that is to say by the Nobilitie and Comunalty besides the King Furthermore that I lose not another advantage offered me by this authoritie I must also gather hereby That not only the Kings of Northumberland Essex and Westsex used the three estates in making their Lawes but also that they of Kent and middle England maintained the same order for King Alfreds words as you see are one and the same for them all and then consequently their manner was one and the same through all But now that I may at the length leave these heptarchies or petie Kings and passe to the Monarchies and great ones the same Alfred after that the whole nation had yeilded themselves unto him and were shrowded under his protection against the furious storm of the Danish invasion did at one time conclude a peace with Guthrum the King of the Danes the stile whereof beginneth thus This is the peace that King Alfred and King Guthrum and all the wisemen of the English nation have taken c. Loe here you see Ealra Witena Gemote an assemblie of all the wisemen After him Edward called
his wisemen to Excester and consulted with them for the better observation of the peace of his own Realm And he also at another time by the advise of his wisemen renued and confirmed the league that Alfred had before taken with the Danish Captain King Ethelstane concludeth his famous Parliament holden at Grateley thus All this was ordained in that great Synod at Grateley at the which was the Arch-Bishop Walfhelme with all the Noblemen and Wisemen that King Ethelstane gathered together and the same King did also afterward call another assemblie of his wisemen to Excester to consult for the better execution of those former Ordinances Edmond the King summoned a great Synod at London both of the order of the Spiritualty and Temporalty the which in the second part of the Law there made he called by a generall name his Witena wisemen and thanketh them all for their help in that advice And after him King Edgar published certaine lawes which were made as he saith by the Counsell of his wisemen K. Edgar made lawes frequenti senatu he began to raign 959. Lambard f. 62. Etheldred had consilium sapientium and be began to raign 979. Lam. f. 88. The like title and conclusion have those statutes also which King Etheldred ordained at Woodstock and the league which he made with Anlaf another of the Captaines of the Danish armie is intituled to be made by him and his wisemen And certain other acts there be though hitherto not imprinted of a Parliament that was assembled in the yeare of Chist 1008. which fell under the raign of the same King which are there reported to have passed under the authority of the King and his wisemen both spirituall and lay in which said last ordinances this one thing for this purpose is worthy of observation That whereas in the beginning of the lawes all the acts are said to passe from the King and his wisemen both of the Clergie and Laytie It is also supposed that the senatus consultum de monticolis Walliae was in this Kings time the title is Consultum quod Angliae sapientes Walliae consiliarij de monticolis fecerunt Lamb. 94. in all the body and processe of the law each statute saith thus And it is the advice of our Lord and his Wisemen so as it seemeth plainly that it was then a received speech to signifie both the Spiritualty and Laity that is to say the Nobility and Comons by the onely word Witena or Wisemen Finally those lawes of the great King and Monarch Canute or Knoate which he made at Winchester and be yet remaining do beare face and testimonie that they were made by him and his wisemen Se of this Guliel Lamb. 97. And there is an antient written treatise intituled Modus tenendi parliamentum tempore regis Edwardi filii Etheldredi to be seen in many hands purportng the very order forme and manner of all this stately Court and Assemblie Now as these written authorities do undoubtedly confirm our assertion of the continuance of this manner of Parliament so is there also unwritten law or prescription that doth no lesse infallibly uphold the same for it is well known that in every quarter of the Realm a great many Boroughs do yet send Burgesses to the Parliament which neverthelesse be so antiently and so long since decayed and gone to naught that it cannot be shewed that they have been of any reputation at any time since the Conquest and much lesse they have obtained that priveledge by the Grant of the King succeeding the same so that the interest they have in Parliament groweth by an ancient usage before the Conquest whereof they cannot shew any beginning which thing also is confirmed by a contrary usage in the selfesame thing for it is likewise known that they of ancient demeasne do prescribe in not sending to the Parliament for which reason also they are neither contributaries to the wages of the Knights there neither are they bound by sundry Acts of Parliament though the same be generally penned and do make no exception of them But there is no ancient Demeasne saving that only which is described in the book of Domesday under the title of Terra Regis which of necessitie must be such as either was in the hands of the Conquerour himselfe who made that booke or of Edward the Confessor that was before him And so again if they of ancient demeasne have ever since the Conquest Mirror c. 1. sect 2. prescribed not to send Burgesses to the Parliament then no doubt there was a Parliament before the Conquest to the which they of other places did send their Burgesses which seeing it is so let us come neerer and examine whether the same order have continued since that time or no. The continuance of Parliament after the Conquest To looke for a Parliament assembled of the English nation and Commons soon after the Conquest were but to labour without expectation of good speed for Silent leges inter arma There were in the time of and since the conquest in the raigns of H 1. K. Stephen H. 2. R. 1. K. John H. 3. c. 280. Parliaments and acts made at every session Cook 1. Jnst sect 164. p. 110. See Polyd. l. 11. and Hollingsh p. 354. of the beginning of Parliaments in England And during all the raign of the Conquerour either the sword was not put up into the scabbard or if it were the hand was alwayes upon the hilt ready to draw it again So unwilling on the one part were the English men to take the yoak and more that rather their obedience was to be compell'd then their opinions to be consulted and so haughty on the other part were the Normans victors that to be called an English-man was in their eye a great contumelie and reproach His son William also did rather pretend in word some release of the former austerity in government than perform it in deed and experience But his other son the first Henry that ever raigned here did not only at his Coronation promise restitution of St. Edwards laws as we call them but also delivered out his free Charter of the Grant of the same in which as M. Paris reporteth he acknowledgeth that he was crowned by the Common-Councell of the Barons of the Realme of England and there it may happily seeme strange to affirm that this was a full Parliament in the which there is no other mention but of these Barons only But if it be considered first that the Germans expound and render the word Baro by Freehears a freeman then that Math. Paris saith that the Citizens of London were at that time called Barons And also that even yet Burgesses of the Five Ports do passe under the same name of Barons and that every man almost hath his Court-Baron It shall not be altogether without ground to say that both the Nobility and Commonalty of the Realme were meant under these words the
only the direction of his demeasns and receipts the administration of Common justice continuing still in that other Court of his as it was before his coming hither For proofe of which matter I call to witnesse Gervasius Tilberiensis a learned man that lived so neer to the time of the Conquest that he confesseth he had talk with Henry Bishop of Winchester which was son to the Conquerours sister This man was an officer of the Exchequer here and penned speciall dialogues of the observations of the Exchequer which he dedicated to King Henry the second and are yet in the Exchequer in the Black Booke there in the first part of which his dialogues ca. 1. he writeth for the advancement of the Antiquity of the Exchequer that it was brought out of Normandy by the Conquerour and for the authority of the Court he hath amongst other words these following Nulli licet statuta Scaccarii infringere vel eis quavis temeritate resistere habet enim hoc commune cum ipsa domini Regis curia in qua ipsc in propria persona jura decernit quod nec recordationl nec sententiae in eo latae liceat alieni contradicere Whereby it is plainly proved the Court of the Exchequer was at that time a distinct Court from that Court of the King in the which he himself sometimes and commonly his justice called then Prima justitia did use to sit The one Court having authority over the Kings demeasns and receipts as Gervasius in all that worke at large discourseth and the other using the power of distributing common justice as his words in this place do sufficiently purport And therefore I cannot but here by the way note the error of them which do maintain that the Exchequer was in this time of King Henry the second a Court of whatsoever Common pleas for all subjects and which for proof of their assertion do alledge the Title of Mr. Glanvilâ—'s book in part thus Et illas solum leges continet consuetudines secundum quas placitatur in curia Regis ad scaccarium for overthrow whereof first I say that the words of this title be not the words of Glanvill himself but of that man whatsoever he were that published his book by print for he entituleth the book thus Tractatus de legibus tempore Reg is Henrici secundi compositus illustri viro Ranulpho de Glanvill juris regni antiquarum Consuctudinum eo tempore peritissimo which doth plainly discover that he speaketh of Glanvilla as of another man and which also lived not then but at another time Secondly I affirm that if it were the speech of Glanvill himself yet if you will take the rest of his words with you then you shall see that they have another meaning for the words stand thus together Secundum quas placitatur in Curia Regis ad Saccarium coram Justiciis ubicunque fuerint which words coram Justiciis ubicunque fuerint do set forth the other Courts of the King whereof I now speake Lastly I undertake to shew not by the title but by the Text of Glanvills owne booke that in his time the Kings Court was one and the Exchequer another for throughout his whole worke he called the Court of Common Pâ—eas Curiam Domine Regis And the Stile of the writ therefore is quod sit coram me vel Justiciis meis But when he cometh to speake of the Exchequer he talketh of Acompts to be made to the King there and of none other matter as namely in the 7. book Ca. 10. where he hath this Si dominus Rex aliquam custodiam alicui commiserit tunc distinguitur utrum ei custodiam pleno jure commiserit ita quod nullum inde reddere compotum oporteat ad Scaeâ—arium aut aliter But before that I leave the raign of this King Henry the second I must add this also that he in the xxiii of his raign did by the advice of some of his Bishops cut the Realm into 6. parts and to every of these parts appointed three Justices the which are by Henry Bracton called Itinerants and in Brittons Book Justices in Eire quasi errantes as Gervas of Tilbery expoundeth it The proper names of which Justices are set down by Roger Hoveden who also describeth their circuits not to differ much from the same that our Justices of Assize do now ride And so I conclude that not only during all the time of the Conquerour himself of William his son and of his other son Henry the first which was a peaceable Prince and a maintainer of the antient Laws and learned in them whereof he had the name Beauclark but also under the government of King Stephen and of this Heury the second there was one Court following the King which was the place of Soveraign justice both for matter of Law and conscience and one other standing Court which was Governess only of the lands and revenues of the Crown The first of which was then called Curia Domini Regis Aula regia Bract. fol. for that the Prince himself did many times fit in person there and had Justices a latere suo residentes as Bracton saith namely his chiefe Justice Chancellour Constables Marshall and others The later was then as it is now calâ—ed Scaccarium eo quod lusibilis Scaccarii formam haberet If you will give credit to Garves Tilber or else it took the name of Statarium Eo quod stabilis et firma effect ibi as Paulus Aemilius and after him Polydore Virgil doth write of it and in this the Prince sate not personally at any time but his chiefe Justice as President and then the Chancellor of the Exchequer the Treasurer and Barons The Common Place And in this manner that high Court of the King continued untill that Henry the third in the 9. yeare of his raign which was about the time in which he aspired to the age of xxi years granted unto his subjects that great Charter of the liberties of England in the 11. Ca. whereof he ordained thus Communia placita non sequuntur curiam nostram sed teneantur in aliquo loco certo whereupon followed two things The first This Court was in being before this statute it doth not appeare that it was then newly e. rected by the stat of M. Ch. that this Court was directed for the determination of all such pleas as did not concern the Crown and dignitie of the Prince but were meerly civill and did belong unto the subjects between themselves The second that this Court was established in a place certain and that was at Westminster to the end that the people might have a standing Seal of Justice wher to they might resort for the tryall of their owne causes and not to be driven to follow the King and his Court but only where the matter respecte him And after this fo 105.108 all the Writs that are recited in Henry Bractons book
the reign of the Conquerour the which also without all doubt he hath ever since continued Howbeit when I say writings I do not mean he had the authority of making originall writs here before the time of the Conquest for those came out of Normandy also as the very forms of the most of them being expressed in the book of the Norman customes may leade a man to think and that rather also because the Saxons our Ancestors whose proceedings in Judgment was deplano and without solemnty did not use so far as I have hitherto observed to call the parties by any writ or writing but to send for them by certain Messengers which they tearmed Theins that is to say Ministers or Serjeants yea and what that manner of summoning by Writ was brought into use here forthwith committed to the Chancellour For Originall Writs of this time had this form Teste Ranulpho de Glanvilla c. Which was the name of the chief Justice of the Kings Court then under whose sealing they passed abroad Nevertheless for as much as it is to be read in Bracton quod omnia breâ—ia de pace which are prohibitions indeed irrotulari debent in Rotulo de Cancellaria and for that not onely the Statute of Westminster the second which was made in the 15. year of King Edward the first saith in plain words that the for me donne in reverter satis est in usu in Cancellaria and hath often mention of the Clerks there But also that other Statute of articuli super Chartas hath the express names both of the Chancellour and Chancery it must be confessed that the Chancellour had the keeping of the Rolls of Record and the making out of Writs either at the same time that the common lace was erected or not long after that is to say either under the reign of King Henry the third or else in the beginning of King Henry the third or else in the beginning of Edward the first which later King as Judge Prisot reporteth of him laboured carefully to reduce our Law into order and writing and in mine opinion may therefore not unworthily be accounted our English Justinian And albeit that the House of the Rolles which hath been of long time as it were the Colledge of the Chancery men was builded at the first by the same King Henry the third for another purpose namely for the sustentation of such Jews as would give their names to Christ and was thereof called Dominus Judeorum conversorum Mat. Paris yet that hindreth not but that the same House might shortly after be converted to another use upon experience as it is likely that sew converts was found amongst the Jews to inhabite it and then thus have you the Chancellour or now instead of him the Commissioners furnished with the Seal of Grace and Seal of common Justice and with him or them the Chancery for the keeping of Records and the Clerks thereof for the framing of Writs Coment â—43 and as touching the authority in Judgement I see not what Jurisdiction he had his Court of Equity and some powers given by late Statutes onely excepted which is not incident to the making or keeping of Records for he could not reform the errour of another Court yea errour committed in his own Court was reversed in the Bench of the King now called the upper Bench. Neither could he try any Issue taken before him â—4 E. 1. â—5 For that also was and is to be done in the upper Bench as a thing without his Jurisdiction It remaineth then that I speak of this Court of Equity which in my opinion is not altogether so antient as others Os the high Court of Chancery for as you have heard before King Edward the first and the Parliament took order that the Chancellour should follow the King even as the Justices of the Bench did to the end that he might alwaies have at hand all men for his direction in Suits that came before him the meaning hereof as I think was that the Justices should inform him of the Law and the Chancellour of Equity for otherwise I see not what use he could have of the Chancellour in this behalf but onely for that he being commonly a Bishop or other Spirituall person was the more meet after the opinion of men in those dayes to give advice according to equity and conscience In which respect also he was visitor for the King and bestowed his Benefices so that such as then sought relief by Equity were Suitors to the King himself who being assisted with the Chancellour and Counsell did mitigate the severity of Law in his own person when it pleased him to be present and did in absence either refer it to the Chancellour alone or to him and some others of the Counsell And this continued if I be not mistaken untill the 20th year of the reign of King Edward the third in which year when he made preparation for his wars in France it was enacted by Parliaments that the Chancellour and Treasurer should determine all complaints against extortion of Officers maintenance imbracery and such like offences and albeit that indeed this authority be neither granted to himself alone nor doth plainly erect any Court of Equity yet for as much as it is the very first severall power of this sort that I find committed to him from the King in which also it is to be thought that the proceeding was extraordinary and absolute even as the Kings own before was I suppose it to be the laying of the first stone of the foundation of the Chancellours Court But after this in the 36th year of the same Kings reign it was provided by Parliament That if any were grieved contrary to the Articles of that Parliament or others That he should have remedy in the Chancery without other Suit by which Law the Chancellour was not onely made sole Judge in this newly erected Court but was enabled so to proceed in Judgement after his own discretion or otherwise the words without other Suits were not Beneficiall After this also his authority was inlarged by sundry Parliaments as by one to award damages upon untrue suggestion made before him by another To send Proclamation of Rebellion against such as would not appear And by others To grant Commissions of divers kinds and to do many other things whereof it is not needfull to make rehearsall here And truly as these be first beginnings that I can find in Statute Law concerning this authority of Chancery Court so also I do not remember that in our reports of Common Law there is any mention of causes drawn before the Chancellour for help in Equity but onely from the time of King Henry the fourth in whose dayes by reason of those Intestine troubles Feofments to uses did either first begin as some have thought or else did first grow common familiar as all men must agree for remedy in which causes of uses chiefly the Chancery Court