Bishops Abbots Dukes Senators Populo Terrae Lords and Commons It was Decreed and Enacted That Kings should be Elected by the Parliament à Sacerdotibus Senioribus Populi Eligantur and that being so Chosen they should have prudent Councellers fearing God Consiliarios Prudentes Deum Timentes and that Bastards de adulterio vel Incestu procreati should not be admitted to the Crown it is both in Sir Henry Spelman and in the Magdeburgens cent 8. cap. 9. pag. 583. c. Edit Basil 1567. Egbert by all is a fixed settled Monarch but without or against Right of Succession Ordinatur in Regem So Ethelwerd Omnium Consensu Rex Creatur in Polidor Ad Regnum Electus moxque imperare Iussus Patriae desideriis satisfecit as we read in the Monk of Malmsbury About this time the Mannor of Mallings in Sussex was settled on the Church of Canterbury by Act of Parliament Consentientibus Magnatibus It had been given before by one of the Kings but it was recovered again Eo quod Magnates noluere Donationem illam Ratam fore To what Sir Henry Spelman hath of 838 I shall only add that Matthew of Westminster doth afford us Princes Dukes Earls and Barons both in that and former Years besides Inferior Laios and Clergy whom he calleth Rectores Ecclesiarum and in Ingulph we find Principes Duces Comites Barones Comitatus and Baronias with Proceres Majores long before the Norman Ethelwolf a Monk a Deacon and a Bishop yet Elected King because they could not find a fitter person for the Crown Necessitate Cogente factus est Rex in Roger Hoveden Consensus Publicus in Regem Dari petiit in Bale At Rome he repaired the English Colledge lately Burnt but he displeased the Parliament by getting his Son Alfred to be Crowned by the Pope and by Marrying a Daughter of France whom without their Consent he styled Queen which was against the Common and the Statute-Law contra Morem Statuta as we find in Florilegus to be compared with the Saxon Chronology and Asser Menevensis with Wigornensis and Malmsbury before Stow or Polidore But notwithstanding his Coronation by the Pope King Alfred did acknowledge his Kingdom to the Bounty of his Princes and Elders of his People Deus Principes cum Senioribus Populi misericorditer ac benignè dederunt as himself speaketh in his Will subjoyned to his Life by Menevensis wherein he also desireth to leave his People whom he calleth Noble West Saxons as free as mans Thoughts within him Ità Liberos sicut in Homine Cogitatio How far West Sex did then extend may be known in the Saxon Laws with those of St. Edward and Hen. the first where it is Styled Caput Regni Legum as London before to which all must have recourse in omni Dissidentia Contingentum Edward the Senior was his Son but Elected King by Parliament Successor Monarchiae Eadwerus à Primatis Electus my Auhor is old Ethelwerd King Ethestane a natural Son and so excluded from the Crown by Act of Parliament at Calcuth yet being a gallant Prince of great Hopes and Virtues he was Elected Electus magno Consensu Optimatum à Populo consalutatur ab Archiepiscopo more-Majorum Coronatur as we read in Malmsbury Huntingdon and Virgil. Yet there was a great Lord Elfred who opposed much and e're long Rebelled scorning to Submit to him Quem suo non diligisset Arbitrario being sent to Rome to purge himself of this Treason he Forswore it at St. Peters Altar but fell down and being carryed into the English Colledge Dyed and his Estate by Act of Parliament was given to the King Adjudicata est tota Possessio in magnis in Modicis quemadmodum judicaverunt omnes Optimates Regni Anglorum as the Kings Charter speaketh settling his Land on Malmsbury How tender they were of Blood I spake before and of K. Williams Law Nequis occidatur vel suspendatur but Wigornensis and Hoveden speak of K. Henrys Law for Hanging any found in Furto vel Latrocinio yet in Ethelstane the Wergylds were agreed by Parliament and a Kings Life valued at 30000 Thrymses Of Anlo's League among the Saxon Laws that he was chosen King by some that rejected Edmund we read in Florence and Hoveden as of one that Scrupled in Ethestane because he had Sworn Fealty to Anlave in the Monk of Malmsbury but it might be another Anlave Edred came in by Election being preferred before the Sons of Edmund who was King before him of his Parliament Summoned by Writ we spake before in the Militia About this time were the Constitutions of Odo de officio Regum Secularium Principum they are found in Saxon and are now Printed in Latin to be compared with the Statutes of Calcuth What Power they had may appear in Edwin for Incest Excommunicate by the same Odo unanimi omnium Conspiratione Edwino dejecto Eligerunt Deo Dictante Edgarum in Regem Annuente Populo res Regni Publica despertita inter Fratres and afterwards Clito Edgarus ab omni Anglorum Populo Electus est c. Confluentibus Principibus omnis Ordinis Viris cum magna Gloria Bathoniae coronatus est presentibus Praesulibus ac Magnatibus Universis Datis singulis Donariis consuetis quae Reg. Coronat dari Magnatibus consuescant of which Matth. Westmon Malmsbury Hoveden and Florence of Worcester How this Mighty Edgar was handled and Humbled for Ravishing a kind of Nun is observed by divers and that after his seven Years Pennance being not to wear his Crown Congregatis omnibus Angliae Principibus Episcopis Abbatibus The Crown was again Restored to him Coram omni Multitudine Populi Anglorum cunctis Laetantibus Deum in Sancto Dunstano Laudantibus as may be read in Capgrave Baronius of this and a great Lords Rape of that time speaketh of some Appeal to Rome whence Dunstan was commanded Peccatori condescendere but he would understand it only si Penitens Peccatum relinqueret Nec aliter saith Baronius potuit intellexisse Edgar being dead there was much Contest in Electing the next King De Rege eligendo Magna inter Regni Primores orta est Dissensio quidam Eadwardum Quidam eligerunt Ethelredum as the Monk of Worcester besides Hoveden and Matthew of VVestmon who agree also that at length the Arch-Bishops cum Chorepiscopis Abbatibus Ducibusque quamplurimis did Elect Consecrate and Anoint Edward Who enjoyed it with little quiet and among divers Contests of Parliament affrighted at the House Fall or amazed at the Angels or some Strangers voice they knew not whence E're long we find him hudled into Dust at VVarham which Queen Aelfrith or Aelsted attoned by Hospitals or other works of Devotion but a Fiery bloody Cloud followeth a Blazing Comet Of St. Edwards and St. Dunstans annual Festivals established by Parliament the Laws of Canute It was that Dunstan who presaged so much ill of Ethelred at his Baptism and to him
the Subscriptions to that Charter but from Bede or other old Authors that use the Phrase Majores of such Officers or Magistrates as Mayors in Cities now seem to be Of which I might give divers Examples It is worth observing how in these Danish storms all Historians make the Counts or great Shireeves to be Generals or Commanders of the Militia And of these I know none more famous than Dorsetshire Reeve Ethelhem in the great Battel of Hampton or in that about Port of which so many write at the Danes first landing thereabouts Danigeld is scarce so ancient Yet this also was granted for provision against Danish Pirates as St. Edward's Laws affirm Who first remitted this Tax but it came up again about forty years after it had been diverted from its first institution and paid as Tribute to the Danes But this was also by Parliament Of which Ingulph and Hoveden with all about Etheldred and Edward I must not digress to the Parliament of Winchester in King Egbert's Sons in which Tenths of Lands as other Tythes were confirmed for Church-Glebe Of which the Saxon Chronologie with Ethelward Hoveden the Abbot of Croyland the Monk of Malmsbury and Matthew of Westminster with divers others before Polydore To which we may adde King Edgar's Oration to St. Dunstan which is known enough As also the Wednesday Masses one for the King and the other pro Ducibus c. Consentientibus The Charter being subscribed by the King Archbishops Dukes Earls and Procerum totius Terrae Aliorumque fidelium infinita Multitudine I should not omit the Parliaments confirming Rome-Scot much mistaken by divers It was granted by King Ina then by Offa and again by King Ethelwoolf not to the Pope as it is generally thought but to the English School or Alms-house for Pilgrims at Rome Yet it was called Peter-pence because fixed on Peters-day A famous day in our Law as may appear by the second of Westminster and other Parliaments But it might be called Peter-pence from King Ina whom at his Baptism in Rome the Pope name Peter as the Saxon Chronicles others Or there might be as much reason for Peter-pence as there was for Peterburg which was Medhamsted but Vows might be performed or absolved here as well as at St. Peter's Threshold in Rome And hence the name of Peterburg But of Peter-pence before Polydore we read in much older Historians especially the Author of King Offa's Life now printed with Matthew Paris Beside the Laws of King Edgar Canutus Edmund and the Confessor where it is called Eleemosynae Regis But in the Saxon Chronology 't is Kynninges and West Seaxena Almessan And in King Alfred's Life by Asser Menevensis Eleemosynae Regis and Anglo-Saxonum Being confirmed by common Assent or Parliament I must omit the Parliament at Kingsbury where among other divers matters a great Charter was confirmed to Crowland Vnanimi Consensu totius Concilii pro Regni Negotiis Congregati Subscribed by the King of Mercia Archbishops Bishops Earls c. And among others by Offâ—at who was Pincerna Regis Ethelwoolphi Legatus Ipsius filiorum Nomine Illorum Omnium West-Saxonum as we are told by the old Abbot who knew it well I might pass over King Alfred's Parliaments so the famous in all Historians and Lawyers But in none I know clearer than in the old Mirrour Of which before for Alfred and his Parliaments twice every year in London With which we may compare one passage in the Confessors Laws touching this great and old City But of this hereafter This was the learned King who perused all the old Trojan Grecian British Molmutian Mercian Danish and Saxon Laws especially those of Ina Offa and King Ethelbert Cum consulto Sapientum partim innovanda curavit as himself speaketh And his Laws were established by Parliaments by his Witan or Witena Atque eis omnibus placuit edici eorum Observatione As learned Lambert translateth the Saxon. But I may not omit King Alfred's Doomsday-book made by such Common Council the great Roll of Winchester which was again renewed by the Confessor and then again by King William the First and then also called the Roll of Winchester and Doomsday as before Of which old Ingulph with Natura Brevium Yet it seemeth that before King Alfred's time there was such a Doom-book made by Ethelwoolf at the time of the Church-Glebe of which Book the Saxon Chronology at the year 854. But this might rather be a Land-book whence the Phrase of Booeland See King Alfred's Will annexed to Asser. But we also find an ancient Doom-book for their Laws and matters Iudicial Of which Doom-book we read in several places of the Laws of Edward the Senior strictly charging all the Judges and Magistrates to be just and equitable Nec quicquam formident quin jus Communae audacter libereque dicant according to the Doom-book And again in Edgar's Laws we find the Doom-book for Tythes and the famous Kyricseat These succeeded King Alfred But long before his time among the Dooms of Withred made about the year 697. by the King and Bishops Cum caeteris Ordinibus and Military-men or Milites at Berghamsted a Fine is set upon a Commander found in Adultery Spretta Sententia Regis Episcopi Boecâ—-Doom I could believe King Ethelbert's Parliaments were Authors to this Doom-book Of which the Roll of Rochester tha Doomas dhe Athelbirth Cyning with Rihtra Dooma in the fore-cited place of Ethelbert in the Saxon Bede of King Alfred How severe his Dooms were to the Counts old Shireeves and Iudges we find in Asser more in Horn and his Kirk-dooms in his Laws which do also speak of Kiric-Ealdor a Church-Elder But again to the Saxon Militia In Alfred's time there was a League made with the Danes Then the Title was Foedus quod Aluredus Guthrunus Regis ferierunt ex Sapientum Anglorum consulto confirmed by Act of Parliament And the Saxon Chronologer addeth That the Dane swore to the Peace and promised to be baptized as he also was and King Alfred was his Godfather naming him Ethelstane Some adde a Daughter of King Alfred's for his Wife which may be worth enquiring more than now may seem The Articles of this League were again renewed and enlarged by Parliament in Edward the Elder A Sapientibus recitata sapius atque ad Communem Regni Vtilitatem Aucta atque Amplificata In the Preface to those Statutes In this Edward's Reign there was an Insurrection and Ethelwald seized on Winborn c. whose Charge and Crimes was this That he did such an Act without permission of the King and Parliament but an tdes Kynings leafe ac his Witena So the Saxon. And Malmsbury addeth That à Proceribus in Exilium trusus Piratus adduxerat But the King summons a Parliament at Exon and there Mid his Witan consulted how the Kingdoms Peace might be restored and preserved Orabat vehementer obtestabatur such was his Mean to the Parliament hoc unum Curent ne
at his Coronation which yet was by consent of Parliament Matris suffragio proceribus Congregatis as the Monk of Malmsbruy Where we have this Compendium of Ethelred Regnum adeptus obsedit potius quam Rexit Annis 37. Saevus in Principio miser in Medio Turpis in Exitu So that we need not wonder at the Parliament which in his Time provided that the greatest and the highest Offenders should have most punishment and heaviest Doom In the Danish Storm he fled to Normandy and the Parliament sent him this Message in VVigornensis Hoveden Huntingdon Florilegus and All That they would receive it again on Condition he would govern more Justly or more Mildly si ipse vel Rectius gubernare vel Mitius By his Son Edward he cajoled both the Lords and the Commons Majores Minoresque Gentis suae promising to be wholly guided by them and so return'd again But he gave so little satisfaction to his People that they rejected his Sons and Elected Canute Who did solemnly Swear to them quod secundum Deum secundum Seculum Fidelis esse vellet eis dominus as the Monk at VVorcester and those that follow him Yet it is also agreed that the Citizens of London pars Nobilium did Elect Edmund Ironside and that the Kingdom was also parted between these Two by consent of Parliament and beside the croud in the Road the Laws of the Confessor do assert that Agreement to the Parliament Universis Angliae Primatibus assensum Praebentibus Edmund lived but a few Months to interrupt Canute who was then received by Consent of All Iuraverunt illi quod eum Regem sibi eligere vellent Foedus etiam cum Principibus omni Populo ipse illi eum ipso percusserunt as Old Florence and Hoveden besides the Saxon Chronology and the Abbot of Croyland hath it thus Omnium Consensu Canutus super totam Angliam Coronatus Of his Parliaments and their good Laws I spake before and of their Oath to the Kingdom much might be added And besides all Historians Fleta speaketh of his Brief or Writ sent to the Pope and of his Church-seed payed as he saith Sanctae Ecclesiae die Sancti Martini Tempore tam Britonum quam Anglorum Lib. 1. Cap. 47. Harold came after Consentientibus quam plurimis Natu Majoribus Angliae As Wigornensis and Hoveden Electus est in Regem fuit N. Magnum placitum aput Oxenford Elegerunt Haroldum as we read in Huntingdon and Matthew of Westminster But Harold being dead Proceres ferme totius Angliae Legatos ad Hardicanutum Bricgae Mittentes Rogaverunt illum ut Angliam veniret Sceptra Regni susciperet And afterward Gaudentur ab omnibus suscipitur and Huntingdon addeth Electus est But he did nothing worthy of their Choice and so became odious E're long we find him swooning at Lambeth in the midst of a Wedding Jollity and soon after Expiring Edward the Confessor succeedeth by Election Paruit Edwardus Electus est in Regem ad omni Populo And Florilegus addeth to Huntingdon That Annuente Clero Populo Londinis in Regem Eligitur As before them both Ingulph Omnium Electione in Edwardum Concordatur His Elder Brother Elfred stepping in between the Death of Harold and Hardicanute Compatriotarum perfidia maxime Godwini Luminibus orbatus est and little less than Famished Godwin excuseth himself by the Kings Service or Command but it would not acquit him though he bestowed costly Bribes Edward can hardly dissemble it Godwine rageth flieth out into Rebellion and is Banished it seems by Parliament E're long he returns again presuming on his Great Friends and Alliance but in Parliament the King Appeals him of his Brothers Death which Godwine denies and puts himself upon the Parliament as did the King saying That they had heard his Appeal and the Earls Answer and it remained that they should do Justice and pronounce Judgment It was in Debate whether a Subject might Combat his Prince upon Appeal but at length the Quarrel was composed by the Parliament till Godwine curseth himself and is choaked as his Lands swallowed in Godwins Sands of which Old Wigornensis and Hoveden with Malmsbury Huntingdon Florilegus and divers others but especially Aornalensis and Mr. Seldens Titles of Honour That King Edward named the Duke of Normandy for his Successor is affirmed by some that follow the Abbot of Croyland and Malmsbury but the Monk of Worcester asserteth Harold to be chosen by the King and Parliament to be his Successor Quem Rex Successorem elegerat à totius Angliae Primatibus ad Regale Culmen electus as Roger Hoveden in the same words And the Monk of Malmsbury confesseth That Angli dicant a Rege Concessum c. Adding also That Harold excuseth his Breach of Oath to the Norman in which All agree by saying It was presumption so to swear or promise the Succession to the Crown without consent and act of Parliament Absque Generali Senatus Populi Conventu Edicto or Absque Generali consensu as Matthew Paris and Westminster express it but what in them is Tanto favore Principum as in Malmsbury and the continuer of Bede Tanto favore Civium regendum susceperit Of William the Norman much in the Militia much yet to be added for his Election and the Peoples free consent against his Conquest Londonias eum Episcopis plurimis Petit Laetanter receptus oranterque Rex conclamatus So the Abbot of Croyland living at the time which Malmsbury expresseth thus Londoniam petit moxque cum gratulatione Cives omnes effusi obviam vadunt prorupit omnibus portis unda Salutantium auctoribus Magnatibus Ita Angli qui in unam coeuntes sententiam potuissent Patriae reformare ruinam dum nullum ex suis vobebant induxere Alienum Huntingdon thus Susceptus est à Londiniensibus pacifice Coronatus Matthew Paris and Florilegus thus In Magna exultatione à Clero Populo susceptus ab Omnibus Rex acclamatus Gemitivensis addeth That ab omnibus Proceribus Rex est electus Sacro Oleo ab Episcopis Regni delibutus as Walsingham in his Neustria Wigornensis telleth us that before his Coronation he did solemnly Swear Coram Clero populo se velle Sanctas Dei Ecclesias Rectores illarum defendere nec non cunctum populum juste regere rectam Legem statuere Tenere c. So also doth Hoveden Matthew Paris in the Life of Frethrerick Abbot of St. Albans sheweth how free the Norman found our Ancestors Iugum servitutis à tempore Bruti nescientes more Normanorum Barbas radere which they note in Caesar also of the Britains and concludeth that pro bono pacis he did solemnly swear to observe their Old Laws Bonas Approbatas antiquas Leges quas Sancti Pii Angliae Reges ejus Antecessores Maxime Rex Edwardus statuit inviolabiliter observare the like Phrase we find in Ingulph of the same Laws
call it and the Barons of Wars Or the time of the great Charter For since that time the Rolls and Printed Acts are every where much larger and much better than my little reading or my leasure can present them Two words have sound of horror to the People who are taught to think them both oppressions and the sins of him they call the Conqueror Dane-geld and the Book of Dooms-day Some have added Curfeu with I know not what to make poor Children quake These have been proved to be long before the Normans coming in To that of Dane-geld I may add that good King Edward did also retain it to his Coffers when the Danish Storm was over till he saw the Devil dance upon it As the Crouland Abbot doth Record But it did rise from one to three to four to six shillings on the Hide but so by Parliament as may be much collected from the 11th Chap. of King Edwards Laws compared with Florence of Worcester Hoveden Huntingdon Math. Paris and Math. of Westminster besides some others which we must produce e're long And to say nothing of eleemosyne pro Aratris of which Canute and Ethelred it is clear in King Ethelstanes Laws that single Hides or Ploughlands in England were to maintain two Horsemen with Arms by Act of Parliament And this was more it seems than ever was King Williams Hydage or Dane-geld Which may be added to King Ethelstanes Militia as also his Doom book for all Judgments in one Form of which his Laws speak to what is said of Booca Doom But to King Williams Doomsday I shall now add to what before that besides the Mirror and Fitz-Herberts N. B. with the old Abbot of Crouland There is enough in every segment of that Roll to make one know it was a Review and little but a Review of what was done before They do abuse us else that bid us read the T. E. R. in all that Roll Tempore Edwardi Regis plain enough sometimes without all Divination That it was also confirmed by Parliament may be clear enough from the many exemptions a servitio Regis and a Vice-comit Nay to some inferiour places as Ely and Worcester Besides old Crowland which was not exempted from such service till the latter Saxon or first Normans time though Ingulph spake of divers Ethelreds But the same Abbot will tell us that this Doom Book was now also made juxta Taxatorum fidem qui Electi de qualibet Patria c. And that his Taxors were both kind and merciful non ad verum pretium nec ad verum spatium c. So preventing future Burthens and Exactions Talem Rotulum multum similem ediderat quondam Rex Alfredus c. But Alfreds own Will seemeth to carry it higher Nor was Ingulph's favour at the Court altogether useless for by that we come to know that our Norman King even in little things proceeded by a Great Councel So that our Abbots Charters must be viewed by Parliment Coram Domino meo Rege ac universo Concilio c. Thence he brought St. Edward's Laws as was observed before Huntingdon and Matthew Paris with Matthew of Westminster spake of his Hydage and Dooms-day as done with great Advice and Justice Misit Iusticiarios per unamquamque scyram inquirere fecit per jusjurandum quot Hydae i. e. jugera uni Aratro sufficientia per annum essent in unaquaque c. Nor are they wholy silent of his Parliaments Cum de more tenuisset curiam suam in Natali ad Gloucestriam and again at Winchester the like at London in another season Tilburiensis telleth us that Mony was paid to the Crown by Cities and Castles that used no Tillage But from the Land or Farms only Victuals till Henry the first And when the Kings foreign Wars did make him press for ready Mony the people murmured offering their Plowshares Horum igitur Querelis inclinatus Rex by advice of his Great council definito magnatum Concilio he sent out discreet prudent men that upon view of all the Lands should assesse the sums which the Sheriffs were to pay into the Exchequer This Gervase lived a while after King William Florence of Worcester near his Reign he telleth us of a Great Councel at Winchester And again of another at a place called Pedred not only by the King Arch-Bishops Bishops Earls but also primatibus totius Angliae a full Parliament for which Florilegius and Walsingham Newstria may be considered with Hoveden following Wigornens That in his Reign there was an High Constable of England ceasing in Henry the Eight appeareth by the Parliament Rolls of Edward the Fourth but Alfigar in the Book of Ely was such in St. Edwards time and to Him some ascribe the Constable of Dover with the Warden and Priviledge of the Cinque Ports with their Hamlets or Circuit including Rye and Winchelsey But all this speaketh Parliament as doth also his New Church Priviledge Communi Concilio Archiep. Episcop Abbat omnium Principum Regni mei Yet to be seen not only at Sir Robert Cottons Jewel House but among the Rolls with King Richards Charters for the Dean and Chapter of Lincoln This exemption of the Church from Seculars c. is the more considerable because it came up with the Norman King at the time of Hildebrand whose Letters missive came hither ad Willielmi Regis Concilium And that this Councel was a full Parliament appeareth by the Charters as I may call them of the Arch-Bishop of York ex praecepto Papae Gregorii 7. and Confirmatione Domini Willielmi Regis sub Testimonio Universalis Anglorum Concilii c. Of which Roger Hoveden is clear telling us also that this King summoned the Arch Bishops Bishops Abbots Counts Barons Vice Comit. cum suis Militibus were these Knights of Shires To this I may add from the Continuer of the Saxon Chronology that Lanfranc came hither from Caen on the Kings call and the Popes Command primatum Regni Anglorum in Ecclesia Cant. suscepit eligentibus eum Senioribus cum Episcopis principibus clero Populo Angliae in curia Regis a very clear and full Parliament Nor may I so wrong our Common Law as to detain that antient Record which the great Judg in his Reports citeth of a Writ of Right brought by this Lanfranc against Odo Bishop of Bajeux and removed by a Toll into the County Court where the King commanded all the good Lawyers to attend the County a toto Comitatu Recordatum atque judicatum est That as the King held his Lands in His Demesn in Dominio suo so was the Arch Bishop to hold his omnino liberas quietas in Dominiquo suo which Judgment was afterward confirmed by the King and Parliament cum consensu omnium principum suorum With which Record I may compare the old Manuscrips in Bennets Coll. Cambridge telling us of a great Moot magnum placitum in loco qui dicitur Pinenden in
of Almain The Learned Author of the late Peleg among divers other Brittish words hath found a new Etymology for the Name of Britain which notwithstanding Brith for Colour or Painting and Bretas in some Greek Poets for a Picture or a Painted Brat he would have to be called by the Phaenicians Berat Anac or the Field of Tin and Lead To which I may add the Northern Sea called of old the Phronean Ocean or the Sea of Saturn whom they feigned to lye asleep in the Bottom of that Sea bound by Iupiter in a Golden Pumice of which Plutarch Eusebius Ptolomy and divers others and of this the Author of the Veyl or Mask of Heaven Of which I must speak but little only this for a Clavis The Scene is the little World or Isle of Brittain Thule some appendant to that Crown or Scotland whose troubles of 1639. are shadowed in the night work called Scotos or Darkness Saturn the Scottish Genius and Mercury the Clergy but in special the late Arch-Bishop of Canterbury Iupiter the Son of Saturn or a great Scottish Lord lately on the Scene that was first sent to reconcile Saturn but he turned Retrograde Mars the Genius of War and in special the great General against Saturn or the Lord Lieutenant of Ireland Venus seemeth to be Queen Mother of France then alive in England Phoebus and Phoebe need no gloss Imperii fata plain enough to those that know that Dialect But Phoebe might have there seen before this Parliament that Peace had been her Work and should have been her Happiness nor is it yet too late or wholly past Habent etiam sua fata Reginae and there is a silent Patience which may Conquer more than all the World can get by Force Who will unmask the Chymical Part which the Poets also Veiled in their Fables of Saturn bound by Iupiter in Golden Pumice and it may be possible that future Ages may be brought to see or know the Treasures in our Chronian Ocean and the meaning of that Riddle In the mean time he that can improve the Sympathy of Mars and Venus or remove the Antipathy of Saturn and Mercury or can bind Saturn by Iupiter and by the Mediation of Phoebe can reconcile all to Phoebus or can live on Herbs may have little need I hope to flatter any But to return to our British Ancestors How Cordiel and Guintoline were Created populi Iussu Archigal Ennianus or others Deposed is observed by divers I shall only add that Proceres and Magnates here are rendred Estates People or Commons in Grafton and Chaucer or the old Fructus by Iulian of St. Albans Molmutius first did wear a Crown of Gold they say he did deserve it for to him we owe divers of our Common Law Principles nay and that for more than is found in Monmouth as I touched before And upon him the Patrons of Succession build a fixed Monarchy which was not such it seems before nor since if we may believe those we can hardly disprove that from this time begin the petty Princes plurimis Regulis supremam Mandandi Iudicandi Authoritatem And themselves divide the Crown between his two Sons Brennus the British Thunderbolt to Rome and some do carry him as Lightning to Delphos while his Brother Belin did return and dye in peace and first of British Kings was burnt to Ashes yet he lived here in Bilingsgate and Key besides his famous Ways or Streets his own and Fathers Laws which with the Mertian came to us through Alfred But we need not go to his Daughter Cambra for the first Affinity between the Brittans and Sicambrian Francks or Gaulish Germans Come we now to Cesar's time Lud is alive in Ludgate London as before he did amend the Laws but by a Common-Council And such Council did reject his Sons and Chose Cassivelane as Caesar doth agree with British Authors He did summon one that slew his Kinsman to appear and submit himself to Judgment Sententiam quam proceres Dictarent subire But the famous Androgeus protected him in London being then the Governour pleading the Custom and priviledge of that City which had also then a Court to hear and determine all the Pleas of Citizens or Quicquid aliquis in Homine suos clamaret and that also by Ancient Prescription ex Veterum traditione Which from Monmouth Virrunnius Ponticus and others may be compared with the Laws of the Confessor for Troinovant or London and its weekly Hustings and Ardua Compota and Ambigua placita Coronae and for the Courts of the whole Kingdom there whence it is called Caput Regni Legum Which may also be compared with that of the Mirror for Parliaments to be in London by ancient Laws which is here expressed Iuxta veteres Consuetudines bonorum Patrum Predecessorum omnium Principum Procerum Sapientum seniorum Regni very full and clear Parliaments of all Estates That which is added of those Courts to sit and hold wherever the King was is British also as well as Saxon. So the Laws of Howel Dha the Good in the Chronicles of Wales but larger in Sir Henry Spelman Ubicunque Sacerdos Destein Iudex ibi Dignitas Curiae Aula Regia licet Rex absens sit and this is one Reason why the King was never Nonsuit because he was supposed present in all Courts and yet his Atturneys Ulterius non vult had the effect of a Nonsuit But for London and its Antiquity before Rome Stephanides a Monk as old as K. Henry the first now in Print may be compared with Tacitus Ammianus Marcelinus nay with Caesar also for the Trinobantes although some think he never saw this City But the Charters of K. William and Hen. the first are in Print so also of Richard the first and K. Iohn in Hoveden and others which yet must not perswade us that Sheriffs were then first Created here For Counts or Viscounts are as old as Counties and the Brittish Authors speak of Dukes of Troynovant such was Androgeus and pro Consulibus vice-comites in Fitz-Stephen and Willielm de Einford vice-comes de London Ioannes Subvicecomes in the Book of Ramsey Wallbrook Case in Hen. the first that I may say nothing of William the Chamberlain de Londonia of whom before in Hen. 1. which may be premised to the Famous Quo Warranto brought in Edward the Second But to return to our British Kings I cannot deny but some Authors do Record the Crown as by Act of Parliament settled on the Heirs of Cassivelane but themselves also can shew us the very next King brought in by Election not from Cassivelane and that both of Lords and Commons too if we may believe Chaucer or the old Fructus Temporum This Theomantius many of their names are Greek was Duke of Cornwall when he was Elected King He doth yet live in a Famous Son great Arviragus whom the Roman Poet and so many others praise he did amend the Laws
but by consent of Parliament for all agree that a Senate was Elected or Dilected as they speak in his time not then first Created but it might be renewed after the Romans had so much interrupted it of which before from Tacitus so far am I still from believing our first Parliament did come from the Roman Senate It is a known History how that King Divorcing himself from his Scottish Queen and Marrying a Daughter of Claudius Caesar at Claudio Cestre was censured by his Parliament or Proceres so that he was fain to exhibit his Answer in Writing which is still left us in Fragments in divers places Amongst other passages he said he knew not but it might be lawful for him to have more Wives than one Eo quod Leges Britannorum illuc usque id nunquam prohibuissent because the Brittish Laws had not yet forbidden it I must not here dispute what moved Lucius to desire and send for the Roman Laws nay and that for the State also Nor can I yet Subscribe to them that think the Britains to be wholly Governed by Roman Laws from Claudius to Attila's time But could the British King send out for Forreign Laws or call them in without consent of Parliament it might not be and Eleutherius's Answer is in Print among the Confessors Laws and every where ad Petitionem Regis procerum Regni Britanniae Petistis à nobis Leges Romanes Caesaris his answer was You have the Scriptures and from them you shall do well to frame your Laws but by your Parliament per Consilium Regni vestri They which begin our British Christianity from Eleutherius seem not to consider his Epistle granting that the Britans were already Christians and had both the Old and New Testament Susceptis nuper Mis. D. in Regno Britanniae Legem Fidem Christi habetis penes vos in Regno utramque Paginam c. They were Christians long before Tempore summo Tiberii Caesaris as Gildas Badonicus and Albanius telleth how Philip the Apostle sent hither Ioseph of Arimathea out of Gaul see Baronius EMS Historia in Vaticano Melchin cited by Bale Capgrave of Arviragus and Malmsbury of the Famous Glassenbury which in old Charter by Parliament is said to be Founded by the Lords Disciples and is therefore Styled Fons Origo Religionis as Westsex is Caput Regni Legum in the Laws of Henry the first as London in St. Edwards Some have also brought St. Paul in Britain so Venantius Fortunatus Anno 570. from Theâ—doret perhaps who yet nameth not St. Paul but the Leather Cutter and the Publicans and Fishermen which may be St. Peter if we may believe the Greek Author cited by Mr. Patrick Young on Clemens or Sophronius and Nicephorus as Dorotheus Tyrius of Zelotes That I say nothing of the British Bard who from the Stars did tell the Birth of our Saviour in so many older than Bale But again to the Brittish Parliaments for so we read in the Laws of King Alfred out of British Trojan Grecian c. that in the very first times of Christian Religion in this Island Laws were made by a Common-Council of Bishops and other Wise Men with that of Bede Servabant Reges sacerdotes privati Optimates suum quique Ordinem After the Death of Lucius the Britains could not soon agree about the Choice of another King 't is every where ' ere long they chose Asclepiodat the Duke of Cornwall by consent of Commons also Communi assensu annuente Populo Troublesome he was to all the Romans but especially to Gallus who hath left his Name in Walbrook as the Gauls some think in Wales but for this Polydor Virgil and the Confessors Acts with the Laws of King Ina may be compared with Monmouth Virunnius Basingstoke Florilegus Gyraldus and some passages of Bede Coel e're long appeareth on the Scene but yet against Succession and he cannot dye so long as Helen liveth Mother to the Christian Emperor but Daughter to our Brittish Coel who was also Father unto Colchester We are come to times of more certainty when that deadly wound of one of the Heads had made the Roman Empire gasp as if it would Expire and breathe no more it had little list or leisure to command or Counsel any of the Toes or other Members at a Distance In this point of time the Britains Rose with other Nations and did soon recover most of that the Romans held by force their Laws and Customs now were free 't is yielded us by all but they could hardly turn and view their Liberty before they came to be new Slaves to the Picts and Scots ancient Appendants to the Brittish Crown in Fee The Roman Consul then in Gaul could not regard the Brittish Sighs and Tears which himself knew to be as just as pitiful for had the Romans not so gleaned Britain of its Glory for their Conquest of other Nations they had never asked help it seems against the Scots From the Romans they had first recourse to their Neighbour Gauls or to their Countrey-men in Gaul for such they were in that which to this day is called Brittany Upon what terms they had help from them I dispute not their King had as great a Name as the great Constantine but how himself or his Sons like the Brittish Reins we may guess in part from what we read in Gildas Tears for his poor Countrey where he complaineth that Kings were Elected and Anointed for nothing of God or of Good in them but only for their Force c. This is also found in another Author besides Gildas as old as King Stephen or Henry the Second which may the more perswade us that Monmouth had good Authority for what he Writes of those times for he also hath Gildas's words with very little variation By which we see the Law or at least the Custom of those times both for Electing Anointing Kings among our British Ancestors Two of those Kings may be Constantine and Constans who are said to be Slain by some of their Guard or Attendants yet so as divers intimate it came from a farther and an higher Hand Constans also came up to the Crown by a Faction rather than a free Choice as all relate who ascribe it to the Duke of Cornwall not without great Contests of divers Lords and with little consent of Commons vix Annuente Populo as we may read in divers Authors who are also plain enough to make us know that he was pulled down by the same Hands that set him up Vortiger came next but on Election it is agreed by all and that there were two Royal Princes Sons to the late and Brothers to the last King who must wait for the Crown with much Patience How he called in the Saxons by consent of Parliament I shewed before in the Militia and I might confirm it from divers others who do also Record that the King told the Saxons that he durst not without the
Parliamenti sedebunt nullus stabit sed quando loquitur ut omnes audiantur à Paribus And again Nullus solus potest nec debet recedere à Parliamento sine Licentia Regis omnium Parium Parliamenti hoc in pleno Parliamento Ità quod inde fiat mentio in Rotulis Parliamenti It may be possible That Bracton and Fleta with others may use the Phrase Pares in such a sence when they say That the King or his Commissioners should not judge and determine of Treason but Pares Which may be added to the 25 th of Edw. 3. reserving Treason to Parliament where of Old it seemeth only determinable so that The Mirror would not have it Endicted but by Accusation and in full Parliament as in King Edmund's Time c. Cap. 2. Sect. 11. and in Edw. the 3 d it was enacted That Offences of Peers and great Officers and those who sued against the Laws should be tryed in Parliament And although now the Phrase be given to all the Lords of Parliament yet it was most or only proper to the Earls whom by Law and custom the King styleth Consanguineos and he might style them his Peers or Companions as in Latine Comites So Bracton Comites dicuntur quasi Socii Regis qui habet Socium habet Magistrum and in another place A Societate Reges enim tales sibi Associant ad consulendum regendum Populum Dei and the like is in Fleta Comites à Comitiva dicuntur qui cum viderint Regem sine Freno Frenum sibi apponere tenentur c. which is also in Bracton The Mirror is yet clearer although the King had no Equals yet because himself or his Commissars might not be Judge it was provided by Law that he should have Companions to hear and determine all his Torts c Aux Parliaments and those Companions were called Countees Earls from the Latine Comites So also Sarisberiensis cited before in Hen. 2. Comites à Societatis participatione dici quisquis ignorat ignarus est literarum c. some will have them Comites Socii in Fisca because of old some Earls had a third part of profits accrewing by Pleas and Forfeitures in their Counties as the Laws of the Confessor and Mr. Selden in his Comes but he will also grant their name à Comitiva potestate rather than from such Communion of profits That the old Sheriffs also who were Vice-Comites did come to Parliament appeareth in the Ancient Writs and Histories and yet the Barons seem to be the Kingdoms Iudges and the present Earls may seem to sit in Parliament but onely as Barons who are now all Peers and Lords and Parliament But although the Lords were the great Iudges of the Kingdom and of all Members thereof yet it is well known that in full Parliament as old as Edw. 3. they did not only acknowledge but protest that they were not to Iudge the Commons in Cases of Treason and Felony being not their Peers How it was in Rich. the Second may be seen at large in the Rolls and Records now printed in Edward the Second the Commons proceeded by the Judgment of the Lords for which also the Fructus temporum cited before may be added to all in the Road. Appeals and Writs of Error were from the King to the Lords in Ecclesiasticals that touched the King they were to the Spiritual Prelates Abbots and Priors of the Upper House by Act of Parliament in 24 Hen. 8. till which it may be Temporal Lords had also Cognizance of such as well as Temporals And Writs of Error in the Parliament were Judged by the Lords for they came from the Kings Court his Bench or his Exchequer and if Errors had been in the Common Pleas or below it they should not be brought into Parliament but to the Kings-Bench and from the Kings-Bench as from the King not otherwise they came to the Lords and although there was a formal Petition for removing the Record from the King it was but of Course and the King could not deny it Which we found granted by all the old Lawyers and Historians as I shewed before and by the grand Master and Patron of Law King Edw. 1. in Britton because none may Judge in his own Cause Therefore in Causes where our self shall be Party we do consent que N. Court soit judg Sicome Counts Barons in Temps de Parliament In the Laws of Hen. 1. one of the Chapters beginneth thus Iudices sunt Barones Comitatus qui liberas in eis terras habent for in those times Barons were by Tenure only not by Patent that I know till Beauchamp of Holt in Rich. 2. nor by Writ that I can find till the Barons Wars but K. Johns Charter is to Summon Comites Barones Regni majores sigillatim per literas N. But all that hold in Capitae by general Summons forty days before the Parliament and that Negotium procedat ad diem assignatum secundum consilium eorum qui presentes fuerint quamvis non omnes submoniti venerint and the Summons of Delinquents or Suitors in Parliament was to appear and abide the Judgment of the Court not of the King but of his Court for the King is Father and not Judge of his People in his proper Person as was shewed before and all the Books agree that he must Commit his Jurisdiction unto Judges in the Courts of Justice and when he might assume great Offices into his own Hands by Parliament in Edw. the third all Judges were expresly excepted and the Judges Oaths and several Acts of Parliament require them to proceed according to the Law notwithstanding the Kings Command or Seal against it and the Register affordeth a Writ to Supersede or Revoke any such Seal from the King himself to any of the Judges And the Lord Chief Justices as the Lord Chancellor and Treasurer were Chosen by the Kingdom as we found before in the time of Hen. 3. how much more then should the Lords of Parliament be made by Parliament for else they be the Kings Commissioners So the Roman saith our German Fathers chose their Lords in Common Council to be Judges in iisdem Conciliis Eliguntur Principes qui Jura reddunt De Minoribus consultant Principes de Majoribus Omnes And Caesar also observeth that their Princes or Lords were their great Judges sed Principes Regionem atque Pagorum inter suos jus dicunt Controversiasque minuunt Yet Tacitus will also tell us that with those Princes they did joyn Commons Centeni ex Plebe Comites which were perhaps the Fathers of our County Hundreds And in K. Williams Edition of the Confessor's Laws when he inclined so much to them of Norwey Universi Compatriotae Regni qui Leges Edixerant came and besought him not to change their Old Laws and Customs of their Ancestors because they could not judge from Laws they understood not quia durum valde foret sibi suscipere
Lists which I would avoid as a Purgatory being otherwise I say not better imployed than in such unprofitable Wranglings I should believe it not very difficult much less impossible to maintain That both the Moulding and Manage the Make and the Use of the Kingdoms Militia was ever immediately subject to the Command of the Courts of Iustice especially the Parliaments which may in a large Sense of Law be called the Crown or King's Politick Capacity but never I think to the King's Person alone which in Law is still an Infant as the Mirrour expresly calls him though his common Capacity be ever of age Be the Person a Child an Infant Lunatick Incompos Mentis or a Woman which sure our Ancestors could not but deem a most unlikely Person for a wise and valiant General If I were compelled to argue this it should not be only from right Reason or the Law of Nature which yet to me seemeth much to encline this way The Feet are to bear and the Hands to help to hold to bind and rub the Head in any Distemper or Weakness but if I should hear of any Man born with his Heels in his Neck or his Hands tyed to his Head or immediately under his Chin I should think it a Monster And wherever both Hands and Feet are at their due Distance from the Head with divers Nerves and other Vessels Bones and other parts between them yet I never heard or knew that they did obey the Head till it did command itself and them also by Reason or till it also doth Obey not only its own Eyes and Ears but the Common Sense and Reason of the Soul I must confess I have heard that Ticho-Brah did sometimes imagine that he found Mars below or under the Sun But if it were really so it seems as great a Prodigy in Nature as the new Star and that of Mars rather than a new Star in Cassiopeia might presage those sad Commotions which have since followed in many Places of Europe while Mars hath been so much below or under the Sun For by Nature Mars was said and ever thought to be placed immediately under Iupiter the great Judg or Court of Iustice which should command the Sword And so it doth by Law For in England the Iudgments given in any Court of Record do so command the Militia for Execution for a Writ runs of Course which was made by Common Consent and cannot be denyed Release to all Actions will not hold against Execution except all Suits were also released But this is such a Suit as the Law calls a Demand which may not be denyed And for other Cases of Routs Riots unlawful Assemblies Invasions c. The Posse Comitatus and by Consequence the Posse Regni was Disposed and Commanded by known sworn Officers that acted Virtute Officii by the Law and Custom of the Kingdom For it may be known that the old Iustices or Conservators of the Peace were chosen by the Counties as appeareth by Writs yet to be read from the Rolls of Edward the First And now their Commission and their Power dependeth on Parliament Nor could the Chancery have given such a Power had it not been so Established by Parliament which hath also strictly provided for their Legal Nomination and Election For which the Statutes of Richard the Second Henry the Fifth Henry the Sixth and before them all Edward the third thought it were not printed And it is very well known how by the Common-Law and Custom of the Kingdom all the Sheriffs do command the Posse Regni in their several Counties and that not onely Execution of Writs which may be thought to be Matters of Peace But the Lawyers know that Sheriff is Custos Legis and Reipublicae as well as of Peace of which he is the Principal Conservator in his Shire and County Nor may it be Presumption to say That all these Sheriffs also ought to be and so were chosen by the People as is sufficiently found in Hoveden and in the Laws of the Confessor And in full Parliament of Edward the first it was declared to be the Law and Custom of the Kingdom and therefore so setled in the Choice of the People There was in latter times some Alteration made in Choice of Sheriffs but it was by Parliament However we all know that Headboroughs Constables greater men than themselves know Coroners and divers others are yet still chosen in the Counties and do act by Custom and Common-Law And the Sheriff also however he be chosen yet he stands not by Commission nor ought to fall with Kings death But is a standing Officer by Common-Law Who may command all Lords Knights Gentlemen and others in his County by his Writ of Assistance Which issueth of course to every Sheriff I need not say how little the Kings Personal Command or Warrant can by Law interrupt or hinder the Process of Sheriffs Iustices Constables or others in their legal course for the Publick Peace Yea insomuch that if I should have beaten a Drum or raised Forces to rescue King Henry the Eighth from the Compter for abusing a Petty Watch in a Night-walk I might have been arraigned for it And so I might have been for refusing to fire the Beacons or to have raised the Counties if I had seen a Navie of French or Turks landing in King Iohn's time Although the King had come to me and bid me quiet because they were Friends or such as he invited in for the good of his Kingdom Which from his own Mouth or under his hand would have been no legal Supersedeas to a private man in case of such Danger much less to a Sheriff or other sworn Officer For in such cases of Apparent Danger any man that is next may esteem himself an Officer as in quenching great Fires or damming out the Sea And in such though the King himself should forbid me or get me indicted I may demur and put my self on the Judges of Law especially Parliament the most proper Judges in such Causes And to Lawyers I need not cite Records or Precedents Nor shall I need to adde That in case of Foreign Invasion or Intestine Motions and Breaches of Publick Peace the Common known Laws of the Land will warrant a Sheriff Officer or private man to go over a Pale an Hedge a Ditch or other Bound of a Shire or County In which our Ancestors were not so ceremonious or superstitious in case of hot Pursuit or the like Although they were punctual enough in keeping of Land-marks And in Peace in cases of real Actions and personal Trials They were very tender of those Marks in special that bounded out Shires or Counties The Original of Shires and Sheriffs is generally fixed upon King Alfred But the old Abbot of Crowland whence this arose seemeth to speak of new Names rather than Things for himself hath Provincias Comites Vice Domini though not Vice Comites of Ages before King Alfred And the Monk of
quo Lanfrancus diratiocinatur and the conclusion that he was to hold his Lands and Customs by Sea and Land as free as the King held his ezcept in three things si regalis via fuerit effossa arbor incisa juxta super eam ceciderit si homicidium factum sanguis in ea fusus fuerit Regi dabit alioquin liber a Regis exactoribus In the same Author were read of a Great Counsel at London in that Normans Reign and of another at Glocester where the Arch Bishop of York jubente Rege et Lanfranco consentiente did consecrate William Bishop of Durham having no help adjunctorium from the Scottish Bishops subject to him which may be added to that before of Scotland belonging to the Province or Diocesse of York Nor can I abstain from the next paragraph in the same Author how Lanfranc did consecrate Donate a Monk of Canterbury ad Regnum Dubliniae at the Request of the King Clergy and people of Ireland Petente Rege clero populo Hiberniae which with divers others might be one Argument for the Antiquity of Irish Parliments and their dependance on England long before King Henry the Second For which I might also cite King Edgars Charters Oswalds Law and divers Historians of his times But the Charters mention Dublin it self and yet our Lawyers are so Courteous as to free Ireland from our Laws and Customs till towards the end of King Iohn and some of them conjecture that the Brehon Law came in again and that our Parliament obliged them not till Poynings Law in Henry the seventh But to return to our Norman King I need not beg proofs of Parliaments in his time at least not to those who know the Priviledge of antient Demesne which therefore is free from sending to Parliaments and from Knights Charges and Taxes of Parliament because it was in the Crowns not only in King William but before him in King Edward and the Rolls of Winchester for which the old Books are very clear with divers Records of Edward the third and Henry the fourth besides natura brevium That I say nothing of the old Tractat. de antiquo Dominico which is stiled a Statute among our English Statutes And besides all the late Reports or Records I find it in the Year Books of Edward the Third that he sued a Writ of Contempt against the Bishop of Norwich for encroaching on Edmondsbury against express Act of Parliament By King William the Conqueror and by the Arch-Bishop of Canterbury and all the other Bishops Counts and Barons of England It is 21 of Ed. 3. Mich. fol. 60. Title 7. Contempt against an Act of Parliament This might well be one of the reasons why the great Judge giveth so much credit to the old Modus of Parliament as it was held in the time of King Edward the Confessor which as the antient copy saith was by the discreet men of the Kingdom recited before King William the Norman and by him approved and in his time used I have cited it before and compared it with Irish Modus which my much honoured friend Mr. Hackewil one of the Masters of Chancery hath under his hand attested from the Great Seal and Charter of Henry the fourth which himself hath seen reciting a former Charter of King Henry R. Angliae Hiberniae conquestor Dominus who sent the same Modus into Ireland Where himself or his Son Iohn sans terre had no great work to reduce them to the civility of Parliaments To which they had been long before accustomed and the Roll saith communi omnium de Hibernia consensu teneri statuit c. nor doth the division of the Irish-Shires seem so lately setled as some have thought although I may not dissent from the great Patron of Civill and Ecclesiastical Learning the late Primate of Ireland Touching that Irish Modus I have very little to add to the fourth part of the great Institutes in several places I shall now only observe that both these old Modi of Parliaments do agree in this Custom of the Kingdom that the King should require no Ayd but in full Parliament and in Writing to be delivered to each in degree Parliament And both they agree that every new difficult case of Peace and any war emergent within or without the Kingdom vel Guerre emergat in Regno vel extra ought to be written down in full Parliaments and therein to be debated which may be considered by all that will argue the Militia To which also we may add one clause of the Jewish Laws of their great Sanhedrim to whom they retain the power of Peace and War especially where it is Arbitrary and not meerly defensive in which the Law of nature maketh many Magistrates and this might with ease be confirmed from the Laws and Customs of all Civil Kingdoms in all ages But I must not wander from our English Laws I had almost forgotten that which should be well remembred Although many would perswade us to seek our Laws in the Custumier of Normandy it is not only affirmed in the Great Reports but also asserted by Guil de Rovell Alenconien and proved by divers Arguments in his Commentaries on that Grand Custumier that the Normans had their chief Laws from Hence As had also the Danes in the time of Canute for which we might have more proof and witness than the Abbot of Crowland So much even strangers did Love and Honour old English Laws Of King William the Second Sirnamed Rufus I shall speak but little for I must discuss his Election and Coronation Oath in a fitter place Some footsteps we find of his Parliaments in divers Wigornensis and Hoveden tell us that when he would have constrained the Scottish King ut secundum judicium Baronum suorum in curia sua Rectitudinem ei faceret Malcolm did refuse to do it but in the Confines or Marches Where he could not deny but the Kings of Scotland were accustomed rectitudinem facere regibus Angliae But he then said it ought to be by the Iudgement of the Parliaments of both Kingdoms secundum judicium utriusque Regni primatum And I find the like Record cited on Fortescue from Godfrey of Malmsbury But Huntingdon and Matthew Paris also relate that the same King Malcolm did submit both to do Homage and to swear Fealty to our English King and Paris addetth a pretty Story of King Malcolms overlooking Treason But again to King William Of his Errors in Government I shall only say that if Edom did really signified Red as hath been thought I could believe that all Historians speaking of Adamites then oppressing the People might allude to the near affinity between Edom and Rufus for Red. For this was his Sirname of King William the Second Henry the First is yet alive in his Laws and Charters Not only in Wendover with other Historians but among the Rolls and Records yet to be seen in the Exchequer They are now in Print
And a while before the Abbot was made a Bishop at London petente Milone Constabulario favore Populi utriusque Ordinis that is the Lords and Commons or rather the Clergy and Laity In Huntingdon we read of Robert Arch-Deacon of Leicester about this Time Elect Bishop of Lincoln Rege Clero Populo summo gaudio annuente And a while after he shews us the King at London in a full Parliament disputing the grand question of Appeals with the Romish Legate For such Appeales saith he had not been used in England till That Henry of Winton the Legate had cruelly intruded them Malo suo crudeliter intrusit The Monk of St. Albans borroweth from him and sometimes repayeth with interests As in that Statute for Priviledge of Churches and Church-yards with all the Clergy so that none but the Pope could absolve from violence done to such in which they all agree he added also another Act of the Parliament that Plowes in the Field with Husbandmen should enjoy the same Peace or priviledge as if they were in a Church-yard His Geffry de Mandevil Consul or Comes was a very great man de magna villa For he speaks of his Princeps Militiae and of another that was his Magister peditum But in Henry of Huntingdon we find him at length clapt up in Prison but scarcely secundum jus Gentium Rex cepit eum in curia sua ex necessitate magis quam ex honestate Hoveden hath of him the like expressions adding also that from a Baron he had been raised to the degree of a Consul that is an Earl For in him the Earl of Flanders is Consul Flandrensis and the Earl of Anjou Consul Andegavensis This was he that come to be Hen. the 2d who at his Landing being Duke of Normandy coyned money which passed here by the name of the Dukes coyn Nor only he but Omnes potentes tam Episcopi quam Comites Barones suam faciebant monetam and of this Nubrigensis Which may be compared with the Saxon Laws of King Ethelstan and others As K. Hen. monetag common In the same Huntingdon we also read that by the Mediation of Theobald of Canterbury and Henry of Winton the King was so reconciled to this Duke and Earl Henry that they never more discorded also that the Duke was made Iusticiarius Angliae next under the King omnia Regni Negotia per eum terminabantur But in Polydore we find this Pacification made by Parliament Cujus Authoritate pactio facta est Matthew Paris is so full of Law Terms that I could beleive him in this to allude to the Law Fines and Recoveries For at this peace he telleth how the Kingdom was again Recovered And after a disgression to Merlins Prophesie in which the phrase of Vice-comites may be duly considered he concludeth thus a War that had raged 17 years together was now quieted by such a Time hoc fine quievit To which he adds that famous story of the Souldier that in this Vacation made a Voyage to St. Patricks Purgatory And by that occasion he relates the best description of Hell or Hellish Torments that I remember in any Historian of credit With which may be compared divers others in the same Author But that which is added at the Souldier return to the King may be added also to what is observed before touching Irelands dependance on England For the same Souldier was again sent by King Stephen into Ireland to be Assistant as an interpreter to Gilbert who had a grant from hence to found an Abbey in Ireland Whither he also carried this Souldier speaking Irish and with Tears he would often relate his Voyage to Hell Which is so recorded and asserted by divers Religious men To K. Stephen's Militia we may also refer that which so many Historians Record of his damning the Hidage or Danegeld Which yet was not his Act but the Parliaments that did Elect and create him King We must discuss it more fully ere long but now for Danegeld we may assert it to be expressed in his very Coronation Oath on which he was admitted One of the clauses was that he should for ever desist from that which had been paid to some of his Predecessors singulis annis And Wendover or Paris express no more But in Hoveden and Huntingdon Dane-geld is expresly specified which both affirm to be then at 2 s. the Hyde They agree also with others That this was again specified in Parliament at Oxford Where the King did again confirm his Coronation Oath Matthew of Westminster doth also Record that of these promises or Oaths he made a Charter which seemeth to be that Charter which the great Reporter in his 8th part affirmeth to be yet found in an old MS. de antiquis Legibus And that the said Charter among divers other things doth expressely confirm the Laws of K. Edward and of K. Henry Nay the Monk of St. Albans affirmeth that in Parliament Congregatis Regni magnatibus he did there solemnly promise to meliorate the Laws or make them better as they should desire or require juxta voluntatem Arbitrium singulorum which we may consider again upon occasion Nor must I omit that much of this very Charter is yet to be read in Print in an old Monk that lived in King Stephen Time and those particulars for confirmation of all good Laws and in special those of King Henry with divers other things that are worth perusal It is in the Monk of Malmsbury but a little after the Letters written to the Pope about King Henries death confession absolution and Anoynting by the Elders according to what was let to the Church by the Apostle St. Iames as in those Letters is more fully expressed Which may be added to that before of the Church Elders Polydore telleth us that in full Parliament at Oxford King Stephen did abolish that which had been oft exacted for Hydage per singula jugera and that he intreated another Parliament to carry on that War which by their Advise and Councel had been undertaken in the Name of Common Wealth Reipublicae Nomine vestro cum Consilio tum Consensu susceptum est and his desire to them was so to act in Person that the People might not be burthened with Taxes And at his end Virgil addeth that for all his continual Wars he did exact little or no Tribute from the People So that the Parliament it seems did wholly manage his Militia From a long Storm at Sea we are now come into a quiet Port and a calm Haven such were the Thoughts Expectations and Hopes of All in Henry the 2d We have his Laws in Print in several places and his Lawyers known enough For who needeth to be told of Glanvil in his Reign of whom before and much I might add from divers others besides Hoveden Who by occasion of that Judges Name hath not only given us a Copy of St. Edwards Laws but hath also asserted their confirmation by
ab omnibus approbetur Which is one clause in the Writ of Summons to Parliament about a War with France in Edward the First Which seemeth to speak a necessity of Parliaments for matters of War Not only for Money as some have pleased to speak or at the Kings choice to call them if he please The Writ speaks an Act of Parliament Lex justissima provida circumspectione stabilita not let at loose to the Kings pleasure but as Fortescue or long before him the old Modus of Parliament maketh it necessary for the King and his Duty to Call a Parliament in all such Cases Nor shall I need to add what Paulus Iovius Froisard Comineus de Serres and the Duke of Rohan with many other strangers have observed of our Parliaments in this which is the Law of Nature rather than of England For as in the Heavens or great World we did before observe Mars or the Genius of War to be there placed immediately under Iupiter the great Councel and not under the Sun So in the Microcosm or little World of Man we find both Spleen and Gall within Hands and Feet without at a good distance from the Head and never joyned to it but in Monsters Yet it is true that some Creatures have Horns on their Heads but they are Beasts and not Men. Much less Kings I hope But did we Labour Toyl and Sweat so much to keep a little River in its bounds that so we might be drowned by the boundless Ocean Or be swept away at once by a destroying and devouring Deluge Did we scruple at a little Gravel or a Pebble that we might be crushed by a Mountain Would we strain at a Gnat that we might be choaked by a Camel or be swallowed whole by Behemoth It may not be at least it may not seem enough to quiet trembling minds to say or prove by arguments there shall be nothing done but what is just except we also see or know the way and means and usual course our Governours will please to take in doing that which may or is and ever shall I hope be just The way must be both Right and Clear as well as is the End And of the two Unjust and Arbitrary Power doth seem to be in Processe or in ways and means much rather than in Ends or Things that be effected by it Sure it was at least it might be good to build a gallant Fleet of Ships and so it might be just that each should contribute a part to such a publick work Nor was it only that which then was taken from us for a Ship that made us sigh and groan and cry or fear our Ruine or a universal deluge of Oppression But it much or mainly was we did not see the way or mean or Legal Process which the Court did take in Taxing or Assessing such a Place a County or a Person And it was but thus in Loans and so in divers if not all the things we so abhorred in the Crown the thing did not so much displease as did the way or means to such or such an End I need not say how curious or how scrupulous and tender still our Laws have been in pointing out the Way as well as End the Process in the Courts of Justice as the Final Iudgements So that indeed the very Form and Life and Power or Substance of the justest Laws doth much consist in Processe which by some may be thought a shadow or a Ceremony left at pleasure for a blustring Wind or any furious hand to shake as much as long as it shall please And then to salve it up by saying to the Root We mean you Good and do but lay you bare that so you may the more behold and more admire our Iustice in the End when all the Boughs and Branches shall be gone that do but hinder all your Prospect I must but Touch and glance There is a Trinity which all our Laws do seem to Worship here on Earth Estate Liberty and Life Of all Estate the Dower of Widows hath the greatest priviledge For which the Comments upon Littletons first and fifth with the Statutes of Merton and some clauses of the great Charter it self for Quarentine and Dower are good glosses on the Saxon Laws or those already touched and I shall not add one syllable All Estates have priviledge in Law and all Amercements must be such as may consist with mens Estate from Alfred Edgar Ethelred Canute or Edward it did come to Henry the first and thence to the Great Charter Where the Law is plain and clear No Free man shall be Amerced but according to his Default and Estate Salvo sibi Contenemento suo Which is so branched that it reacheth to Villains also though it speak at first but of Free-men Hence the Name of Amercement because it was and ought to be an Amerciament or a merciful Fine In which the Saxons went beyond us in their Weregylds and Divers Wytes for which Fleta may be a Comment to the Laws of Ethelstane and others of the Saxons All this for End but what must be the Way How shall it be imposed so that it may as it should be merciful 'T is miserecordiu Regis as the Laws and Books do speak but the King doth not may not Fine or Amerce any but in and by his Courts of Justice So that to render ones self to the Kings Judgment is to no effect and so adjudged For as the Father judgeth no man so the King who is or should be Father of the Country but he hath committed all judgment unto Men that are our Fellows Pares in the Courts of Justice VVhere indeed the King did sometime sit in Person yet the Court did Judge and not the King as Fortescue doth plainly tell us And the Judgment still is entred from and by the Court and not the King Ideo consideratum est per Curiam And so the great Charter saith we will not go upon him nec ibimus nec mittemus but by Legal Judgment of his Peers vel per Legem Terrae and of this last clause I never saw a fuller Comment in a few words than in Mr. Seldens Notes on Attaint in Fortescue But of all Iudgments to be made by Peers somewhat was said before in Henries Laws and more again ere long And for Fines by Courts of Justice not by the King and Amerciaments by Peers besides the Comments on Magna Charta there are divers Book Oases cited from Henry the fourth Henry the sixth Richard the third in the fourth part of Institutes Kings Bench To which may be added Greislies Case in the eighth part of Reports And the first of Westminster doth add to the great Charter or at least explain it in this But the Mirror will tell us it was an abuse not to expound it so largely before And although the VVrit de moderata misericordia in the Register and N. B. be founded on the Statute yet it seemeth clearly but
Consent of his Proceres assign them any Land or City or Castle for that it was against the Laws of his Kingdom prohibitus sum quod Proceres Regni dissuaderent c. Yet it may seem the Lords agreed to their setling in Thanet afterwards but the Commons Dissented so that they resolved to drive them out again and that in Common-Council or Parliament Concilium fecerunt cum Majoribus suis ut pacem disrumperent dixerunt Recedite à nobis c. My Author is old Nennius of Bangor He hath clear passages for Parliaments in that time and for their Power also As for Incest with his own Daughter Vortiger was first Corrected perhaps with the Iewish Discipline which was here also till the time of Henry the Second and St. Germane the Arch-Prelate came with the whole Convocation-House Cum omni Clero Britanniae Corripere Eum. Nennius saith that in a great Moot of Clergy and Laity he was so roughly handled that he rose up in a great Rage and Fled or at least sought how to Flye but he was Banned Maledictus est damnatus a beato Germano Afterwards Vortimer was chosen King 't is every where but after divers Victories he Dyed Poysoned as some thought by Vortiger He now Combineth with the Saxons and by their Power entreth the Scene again but with little Consent of the Britains and although he Acted a while yet he was Hissed off being odious to all till at length his Heart brake Nennius addeth that some said the Earth opened for him and St. Germane Writeth that his whole Family was Burnt from Heaven which was much ascribed to the Clergies Curse or Excommunication Which was in use among the Britains and that also upon their Princes of which we have many examples as of Teuder and Clotri for Homicide and Perjury and Hovel Glevissicg and Brochwell did hardly escape by a great Fine Iudicium Suffere non potuit of which Sir Henry Spelman in his Synods of Landaf It was then by much more heavy than of late Caesar observeth it among the Druids and in him it is Poena Gravissima adding also that such Persons were Abhorred by all as some Loathsome Disease and that they might have no Honour or Right of Law Neque iis petentibus Ius redditur And among St. Patricks Canons we find the Excommunicate excluded à Communione Mensa Missa Pace their Ceremonies in this seem a-kin to the Iewish Cherem nay to their Shammatha or St. Pauls Maranatha and it so continued among the Saxons also as we may see in the Laws of Canute making it Capital to protect or harbour any such But in the Confessors Acts when an Excommunicate fled to the Bishop for Absolution Eundo redeundo Pacem habeat else it seems they were as Out-Laws who might then be Killed by any that met them as the same Laws of Woolfshead in another Chapter Which may help us to Interpret those that speak of the Iews being Excommunicate nay and that also by Seculars in England of which in Matthew Paris and his Additaments but his Glossar rightly expresseth it by the University Phrase of Discommoning Townsmen which of old was much worse it seems than now After Vortiger Aurelius Ambrose à Convenientibus Britannis Convocato Regni Clero in Regem erectus est He might also be Inserted into Gildas for he dyed by Poyson if good Authors deceive us not At his Death a Comet like a Dragon and the Bards apply it to his Brother thence called Uther-Pendragon Florilegus addeth that he made two Dragons of Gold Offering one and carrying the other still before him whence the Dragon in our English Standard although some have asserted much of him they call St. George That which Westmonster or Polydore expresseth by Praecepit proceribus Regni Convenire Monmouth thus in Aurelius Iussit Clerum ac Populum submonere ad Aedictum ergo illius venerunt Pontifices Abbates ex uncquoque Ordine qui ei Subditi and again of Uther Convocato Regni Clero annuentibusque cunctis sublimatus est in Regem and again Communi Populorum Concilio This Uther-Pendragon is vouched and asserted in the famous Contest of Little Britains Subjection to Turon may it also allude to the Story of Brute of which Gratians Decrees and Matthew Paris ad An. 1199. Uther being Dead Convenerunt Pontifices cum Clero Regni Populo a Parliament agreed by all to Bury him Regio More in the Gyants Dance or Stonehenge which himself had gotten by Merlins help out of Ireland fixing it so near to Salisbury for a Monument of that Parliament which was thereabout Destroyed by the Saxons A Parliament I call it so I may In Nennius they are Seniores Vortigirini Regis but in Monmouth and those that follow him they are Principes Consules that is Comites Barones Cives called by the Kings Command Edict or Writ of Summons For Arthurs Parliaments it would be much Superfluous to produce more proof than what already is in Sir Iohn Price Cajus Leland or others that assert his History this I shall only add that in this of all we may Credit Monmouth who is so punctual in nothing as in vouching each County and City that made up his Parliaments Ex Diversis Provinciis proceres Brittonum Duces and among others Dux Doroberine Consules both of Counties and Cityes Boso Ridocensis id est Oxonefordiae Lot Consul Londonesiae c. And among Forreign Princes he Nameth the Kings of Ireland Island Godland Orcades Norway Denmark and others besides the twelve Peers of Gaul of whom also in divers other places that I speak not of the twelve Reguli which Brute found in Gaul nor was there a Prince of Note saith he citra Hispaniam who did not appear at his Summons which may be compared with that of K. Arthur among the Laws of the Confessor and in Horn as Authentick as Neubrigensis Come we to the Saxons what I cited before from the Mirror Tacitus Caesar or others may be fully asserted from their Histories I shall not insist upon Offa's Election although it be clear enough from his own Words ad Libertatis vestrae Tuitionem non meis meritis sed sola Liberalitate vestra unanimiter me convocastis and the Lives now Printed with Matthew Paris and his Henry the third mention divers if not all the Counties which made up K. Offa's Parliaments Nor will I spend time in Cuthred Beonerd or others Deposed by Parliament because the Monarchy was not yet so fully settled But in the Confessors Acts we find K. Ina Elected though by means of an Angel and the first Saxon Monarch of his Laws and Match with his Gaulish Walish Cambrian Queen before as also of his clear and full Parliaments in the Militia E're long we find a Parliament at Calcuth Conventus Pananglicus ad quem convenerunt omnes Principes tam Ecclesiastici quam seculares wherein by the King Arch-Bishop