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
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
full and clear Parliament We need not suspect or doubt it for in those very times there were such Parliaments and such degrees Nay Caesar himself found such degrees among the Britains a King and Druyds which were as Bishops and Archbishops as we may clear anon Dukes and Nobles besides the Commons So civil was our British Ancestors Of whom much more ere long And for the very first times of Christian Religion which was much higher than Austin the Father who might have been great Grandfather to Austin the Monk King Alfred's own Laws acknowledge that in this Island the Laws were then made by a Common Council of Bishops and other Wise men or elder men of the Wytan Old Bede seemeth plain enough for this in several places Servabant Reges Sacerdotes Privati Were the Commons before the Lords Optimates suum quique Ordinem And of the Saxons called in by Common Council Initum est Concilium quid agendum c. placuitque omnibus cum suo Rege Vortigorno ut Saxonum gentem in auxilium vocarent And of Ethelbert King of all the South to the River Humber Among other good works saith he quae consulendo conferebat etiam decreta Iudiciorum juxta exempla Romanorum Concilio Sapientiunt constituit And among other Laws of his in the same Bede that is one in special for Priviledge Ecclesiae Episcopi Reliquorum ordinum That this might also extend to the great Priviledge of Parliaments I could the rather believe from the Laws of the said King Ethelbert yet to be found in the old book of Rochester Textus Roffensis of which Sir Henry Spelman unto whom we owe so much for all Antiquities Where after provision for the things of God and the Church to which St. Edward's Laws allude the next Act is for Priviledge of Parliament it seems being for the punishing and sore fining of those that should do any damage Gif Kyning his Leode to him gehateth c. And in the old Chronicle of Canterbury we read of this King Ethelbert being at Canterbury with his Queen and Son and the Archbishop Austin Caeterisque Optimatibus convocato ibidem Communi Concilio tam Cleri quà m Populi With divers other proofs for Parliaments in Charters to that Church in print And Spot deserves as much One thing I must not omit that Bede observing how Religion was preached both to the King and to the Counts omnibus Comitibus saith there was a License granted for publick Preaching but when the King and divers great men were converted and baptized yet there was no force used to compel others to be of that Religion because he saith they were taught that Christs service must be voluntary and not forced But the Mirrour telleth us the King was bound to compel men to Salvation O happy men or unhappy King But the Britains would not be forced from their Rites by Austin the Monk Absque suae gentis imprimis Senatorum suffragio as a learned man translates King Alfred's Saxon Bede Which is also very clear in several places for setling of Christian Religion when it was freely chosen with destruction of Pagan Idolatry with Lent and other things confirmed by divers Acts of Parliament in time of Ercombert and King Edwin Mid his Witum mid his Ealdormanum So is the old Book of Peterburgh for a Parliament or Heatfield With which we may compare somewhat in Ingulph and more in Bede Ethelward and Huntingdon about the Parliaments which received and consirmed the General Councils and that which established the Division of Parishes and Patronage of Churches Of which Stow and the Antiquities of Canterbury but especially a Manuscript in Camdridge cited by Mr. Wheelock on the fourth or fifth of Bede I should not digress to Sigesberts founding the Vniversity of Cambridge had not King Alfred himself in this added good Notes to Bede By which we may see whence he learned what so many say he did to Oxford the younger Sister For which Polydore is plain enough besides so many better elder Authors It is also considerable that King Alfred calleth Cambridge or Grantacestre a City which Bede would make a Civitatula How little it might then be made by the Danes or others I know not But in old Nennius of the British Cities I find Cair Granth next before Cair Londen And Sir Simon d' Ewes affirmeth it to be ranked before London in Gildas Albarius and an old Saxon Anonymus besides that of the old but not the oldest book of Doomsday Nor must I omit the Records of Richard the First for the Customs of the City of Cambridge found by a Jury in an Assize of Darrein Presentment for the Church of St. Peters in Cambridge Of which the great Judge in his Reports or Commentaries To which I might adde what the Saxon Chronology speaketh of Grante Briege at the year 875 and 921 where we also find an ancient Military Sacrament or great Oath of Fealty more to be marked than may seem at first view Come we to the Saxon Laws extant in print They begin with King Ina whom some will have to be a Britain But in the Confessors Acts he is stiled Optimus Rex Anglorum qui electus fuit in Regem per Angelum qui primum obtinuit Monarchum Totius Regni hujus post adventum Angliorum And that himself and others of his People matched with the Britains But per Communae Concilium assensum omnium Episcoporum Principum Comitum omnium Sapientum Seniorum Populorum totius Regni Not onely a clear proof for Parliaments in King Ina's time but a good Comment on his Laws in print Providing about Matches Dowries and Women's Thirds and all by Parliament as the Proem it self expresses beside King Edward's Laws And for the Saxon Militia a Phrase used by Bede himself Nam egressi contra Gevissorum gentem omnes pariter cum suà Militia corruerunt King Ina's Laws afford us divers Acts of Parliament providing against Thieves Riots Routs and all unlawful Assemblies in several degrees and branches As also for Officers of the Militia to be ready on a great Fine to march upon all just occasions With which we may compare Mr. Lambert's Custos Paganus Sithecundman which some would have to be the Father to our Side-men See Whithred's Military Dooms Egbert is by all esteemed a great if not the first Monarch of the Saxons a great Warriour and a Conquerour But yet he neither made or managed the Militia without a great Common Council or Parliament For which besides all others we have a clear proof in the old Abbot of Croyland to which there was a great Charter confirmed Coram Pontificibus Proceribus Majoribus totius Angliae which were all together at London consulting how to provide against the Danish Pirates Pro Concilio capiendo contra Danicos Piratas c. That also Majores in this place might denote some lower than Earls or Lords may not onely be gathered from
the Close is Acta haec confirmata apud Londonium Communi Concilio omnium Primatum meorum c. I should be unjust to our Laws if I should omit the Process and Plea of Morgan Hen against Howell Dha the good Prince of Wales Upon complaint they were both summoned by King Edgar Ad curiam suam and their Pleas were pacately heard In Pleno Concilio repertum est justo Iudicio curiae Regis quod Howell Dha nequiter egisset extra Morgan Hen filium sui Huwen depulsus est Howell Dha ab his duabus Terris the Lands then in question sine recuperatione Postea Rex Edgarus dedit concessit Hueno Morgan Hen illas duas Terras Istradum Euwias in Episcopatu Landas constituas sicuti suam Propriam Hereditatem illas easdem duas Terras sibi Heredibus suis Per chartam suam sine Calumpnia alicujus Terreni hominis confirmavit communi nostro assensu testimonio omnium Archiepiscoporum Episcop Abbatum Comitum Baronum totius Angliae Walliae factum est coram Rege Edgaro in pleno concilio c. This Record of King Edgar is in Codicae Landavensi fol. 103. I find it cited by the great Antiquary Sir Henry Spelman and it may be compared with the Monk of Malmsbury and Matthew of Westminster I must not relate the Visions or Predictions of the Fates of this Kingdom which Historians record about the Reign of King Edgar they are in print and may be read of all Besides the Prophecies of both the Merlins for the Scottish Merlin was fuller and plainer than the British in Vortigers time That I say nothing of Cadwalladers Vision or Alans Council which was long before the other Alane wrote on Merlin or of the famous Eagle of Shaftsbury that agreed with others in the Britains recovering their Kingdom again after their grand Visit at Rome whence they must bring Cadwalladers bones This leadeth me also to the Sybils Prophecy of three British Princes that should conquer Rome Brennus was one King Arthur some make the second Et quis fuit alter And of these Sybils or one of them sending a book to King Bladud so famous for the Bath and Greek-Schools or University at Stamford the Scotish Merlin seemeth to have written if among others I mistake not Baleus But of Edgar's Parliaments one was at Salisbury so we read in Chaucer or the old Fructus Temporum by Iulian Notary at St. Albans And of another of his Parliaments at Bath the Saxon Chronology at the year 973. His Laws are now printed and their Title is The Acts of King Edgar and his Parliament Mid his Witena Getheate gerred c. Here we find much considerable of Thanes which all will have to be Noble-men but it must be with them a Saxon word And Dhenian is to serve whence the Princes Motto Ic Dhaen For so it should rather be than in Dutch Ich Dien But why should Noble-men or those that were the freest have their name from serving Here they flie to Knights-service King-service or I know not what most proper as they say to free and Noble-men But from a Judge or Fleta we may be taught that the Saxon Dhaen or Thaen is a Servant but Thayn a Free-man And in this sence it seemeth to be used here As also in Denmark and Ireland Nor did the Britains differ much whose Haene or Hane is an Eldar although Hyne be sometimes used for a Servant And so the Irish Tane is Elder whence their Tanistry or Eldership the cause or sad occasion of such bloudshed These British Hanes the Saxons in compliance called Ealdermen St. Edward's Laws afford so much and it may be Thanes although with them they had the name of Greeues or Graves suiting well with Elders Hanes or Senators With which we may compare the Phrase of Seniores which we read so oft in Gildas Nennius Monmouth and others of the British and first Saxons times in Britain I should be tedious in but glancing over the Acts of Parliament in Edgar's time That of the Standard at Winchester is considerable and that of one Coyn through all the Kingdom The Mirrour is plain in making it an Act of Parliament in Saxon times That no King of this Realm should change his Money or embase or enhanse it or make other but of silver Sans l' assent de tout ses Counties Which the Translator is bold to turn Without the Assent of the Lords and all the Commons We may not omit the Act against unjust Judges or Complaints to the King except Justice could not be had at home For which also the Hundred-Courts were again confirmed and the Grand Folkmootes or Sheriffs Turnes established by Act of Parliament Of which and of their relation to Peace and War more in Edward's Laws which may afford a Comment for the Saxon Militia I need not speak of the Parliament at Calna it is famous enough where Considentibus totius Angliae Senatoribus the Roof fell down and hurt them most but St. Dunston Of which Wigornensis Iornalensis Malmsbury Matthew of Westminster and so many others may be cited King Ethelred's Laws have this Title in Lumbard Sapientum Concilium quod Ethelredus Rex promovendae pacis causa habuit Wodstoci Merciae quae legibus Anglorum gubernatur aefter Aengla-Lage Post Anglis Lagam as an old Author turneth it In those Acts we read of Ordale Sythan the Gemot waes aet Bromdune Post Bromdune Concilium It seems a Parliament And again Iussum ac scitum hoc nostrum si quis neglexerit aut profuâ quisque virili parte non obierit ex nostra omnium sententiâ Regi 100 Dependito By which it appeareth to be a Parliament and not the King only that made those Laws That which Sir Henry Spelman calleth Concilium AE 〈…〉 e Generale was clearly one of King Ethelred's Parliaments and the very Title is De Witena Geâ—ednessan and tha Geraednessa the Englaraed Witan gee 〈…〉 c. And divers Chapters begin Witena Geraednesse is enacted by Parliament And the old Latin Copy of this Parliament telleth us that in it were Vniversi Anglorum Optimates Ethelredi Regis Edicto convocato Plebis multitudine collectae Regis Edicto A Writ of Summons to all the Lords and for choice of the Commons a full and clear Parliament In this Parliament were divers Acts for the Militia both by Land and Sea as most Parliaments after King Edgar and among others for Castles Forts Cities Bridges and time of the Fleets setting out to Sea It is made Treason for any to destroy a Ship that was provided for the State-service Navem in Reipublicae expeditionem designatam as a learned man translateth the Saxon. And no Souldier must depart without leave on forfeit of all his Estate None may oppose the Laws but his Head or a grievous Mulct according to the Offences quality must recompence It was here also enacted That Efferatur
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
since the late Oaths of Allegiance and Supremacy which have seemed to abate the use I say not the Force of the old Leet Oath of Grand Fealty Which was perhaps never taken or much understood by some of those that appear most zealous in crying up Allegiance For it is natural to us all to be most confident in that which we least understand They seem to have done much wrong to the King and Crown and to have made so many averse from the very Name of a King who by too much Zeal did strain our English Legiance out beyond all bounds of English Laws and then they would fly out to Forreign Laws as if the Moulds and Sphears of Kingly Power or Subjects Duty were by nature equal in all Climates and in every Kingdom Yet I know not that we need be much afraid to appeal to the Laws of any Civil State especially to those of Iudah which if some had known more they would have pressed less for our Pattern But all English Kings had English Bounds by Law and so we Swore Allegiance and no otherwise by Law It was a Pang of Zeal or strange Affection more than Reason or Religion which did make so many once at Cambridge Swear to Edward the Senior To Will what he Willed c Of which the Saxon Chronology But I hope it is not fatal to that Place or to any others in this Kingdom For I cannot learn that e're our Law did force or wish us to oblige our selves by Oath to Think Speak or Doe as any King would doe or have us for to doe if contrary to Law and right Reason Our Law dispenseth much with Womens Homage and of old they were not pressed to it for a Woman might not say I am your Man nor to a man but to her own Husband Sir I am your Woman yet she was to Swear Fealty So were the Bishops also to Swear Fealty except in Frank almoigne but the Law dispensed with a Bishops or Church-mans Homage so that he needed not to say My Lord or Liege I am your Man The Reason is because he was or should be the Man of God and might not give himself so much away to others as any other whatsoever And the reason of this may reach to all our Fealty so far as to perswade us to consider what it is we cannot nor we may not give away to any Man or Angel Was it not an hard Covenant tendred by Nahash that he would protect all those or own them for his Subjects that would put out their right Eyes and yet this had been more reasonable and Just than to have required absolute Allegiance without any Limitation or Salvo at all For this had been to have bid them pluck out their Souls or at least to uncase them from that which nature hath made the Cabinet of Souls that curious Orient Mother of Pearl Right Reason which doth make us Men that I say nothing of that which makes us Christians or Religious Men. We sinned if we wholly gave our selves unto a King without any Limitation or Restriction whatsoever For by so doing we unman our selves and give away to a Man what we owe not what we may not give to any mortal Creature whatsoever Let us discuss it then by Law and Reason what is our Legal Fealty how Made how Limited how Kept or how Dissolved Let us inquire what Duty what Allegiance is commanded by the Laws and what they did not mean they would not have us give to mortal Man Shall we behold the Sun Reflected or Refracted in a Stream of Water shall we consider the King as Cloathed in the Dress or habit of some other Lord For every Lord the meanest and the lowest is or may be to his Vassals as a little King to his Subjects Such was the Plea of Lanfranc as before at Pinenden and so it was adjudged and confirmed by that Parliament that he should be in his Demesn as was the King in his And the old Laws of Alfred Ethelstane Edgar and Canute with the good Laws of Hen. the first do as much forbid and punish Treason against Inferiour Lords as against the King himself for to them also is Homage done and Fealty Sworn by their Vassals saying My Liege I am your Man and bear you Faith of Life Member and Terrene honour saving the Faith I owe to other Lords Or thus My Lord I will bear you true Faith and do you true Service as my Duty to you is so the Statute of Edw. the Second that is according to my Fee And the Mirrour will tell us that it was an Abuse for the King himself to require it any otherwise for it did not consist in a Point but had much Latitude and several Degrees according to the several Fees And if any such Tenant were pressed on more Service or other than his Fee required or were injured he might Implead his Liege in Law For what his Duty was neither himself nor his Liege Lord might determine but the Law For a Villain who of all Vassals was most Fettered most forbidden to molest his Lord yet might be Demandant in some Real or Plaintiff in some Personal Actions where the Lord might not make plain defence as they speak Nay and Villains also did often bring Actions of Trespass And in Cases of others as of Orphans where the Villain is Executor in Trust he may implead his Lord who can not deny to answear though he do it with a Salvo lest such a Suit might make his Villain free as much as if he had made him an Obligation or a Deed of some Annuity or a Lease for Term or Infeofment with Seisin or had sued him in Law for what he might have had without a Suit For these did Enfranchise the Villain as much as being in a City or Castle without claim or Challenge for a Year and a Day or his Lords giving him by the Right Hand to the Sheriff in full County Court shewing him the open Doors and free wayes and delivering to him a Sword and a Lance or other Free Arms which are the wayes of Manumission in the Laws of King William and Hen. the first where we also find the Text so much Commented by Glanvil Bracton Britton Fleta with the Mirror and others They all agree in this that the Bond and Obligation is Mutual and that the Lords Kiss whispereth as much Respect and Defence as the Vassals Kneeling doth his Reverence Nay there is in Law so great an Obligation on the Lord and so great a Charge often in Guarranty which of old was much larger than now in Homage Ancestrell That the Lord would often refuse and delay to take his Tenants Homage So that there was a Writ made commanding him to take it and by it to Oblige himself to his Tenant whom he was to Defend and his Trespass on him in Law had a very great Aggravation because the Vassal was to be sub defensione Ligea as we found the
their limitations by our Laws their Title by Succession or Election at the Common Law If Bracton or if Fleta may be Judges of this Question they will tell us that in their times our King was Elective Non a Regnando dicitur sed a Bene Regendo ad hoc Electus est And again ad haec autem Creatus Rex Electus ut Iustitiam faciat Universis Not only Created but Elected it is where they treat of Iudges and of Iurisdiction And of our Saxon Ancestors the Mirror is very plain that they did Elect or chuse their King from among themselves Eslierent de eux un Roy à reigner sir eux and being Elected they did so and so Limit him by Oath and Laws In this we might appeal to Tacitus of our Ancestors For theirs who did both Elect and Bound their Kings and Generals Reges ex Nobilitate Duces ex Virtute sumunt and of their King he saith the Power was so bounded that he could not call it Free Nec infinita aut libera Potestas and that in Conciliis Their Kings Authority was in perswasion rather than Command Suadendi potius quam jubendi potestate Caesar seemeth to conceive they had no King or fixed Common Governour in time of Peace but for War saith he they Choose out Generals qui Bello praesint ut vitae necisque habeant Potestatem In our Brittish Ancestors he found a King but by Election of a great Common-Council by whose consent he observeth that Cassivelane was chosen King and General against his Landing Summa Imperii Bellique administrandi communi Concilio permissa est Cassivellauno and again Nostro adventu permoti Britanni hunc toti bello imperioque praefecerant That the Brittans agreed much with the Gauls in their Customs I do not deny but I know not why this should make the Gauls to be the Elder Brothers as some teach us because our Britain is an Island Yet it may be much disputed if not proved that it once was joyned to Gaul or France in one Continent for which we might produce some of the old Poets and others before Twine and Verstegan However it is clear enough from Caesar and Pliny that the Gauls were much moulded by the Brittish Druids although they seemed more Polite in Iuvenal's time and afterwards being more Frank they afforded a Christian Queen to Ethelbert and the Model of a great School to Sigesbert which yet must not wrong Alcuinus who from hence moulded the University of Paris if we may Believe all that write of Charlemaign And if we add Strabo to those cited before we shall find they Chose both Generals and all great Magistrates When they had a King the Crown passed by Election and was so limited that Ambiotrix one of their Kings acknowledged Ut non minus in se Iuris Multitudo quà m ipse in Multitudinem So in Caesar. Their Common-Council much consisted of Equites and such perhaps our Knights of Shires Electi de plebe and Druydes their Clergy who did over-rule them all by their Banns and Sacred Oak Misleto as if it had grown in Dodona's Grove Their grand Corporation was dissolved by Roman Edicts in Gaul by Claudius as Seneca Suetonius but in Rome by Tiberius if not Augustus in Pliny but Vopiscus keepeth a Druydess to presage the Empire to Dioclesian when he had killed the Boar and Ammianus may afford them in Rome in Iulian or Constantius But in Scotland or Ireland they remained longer if we may believe their Annals of Columbanus and of William the Irish Abbot But in Dioclesian's time Amphibalus the famous Brittan fled from Rome to his Friend St. Alban who dyed for him in his Cloaths it is said but we find him Condemned by Law and styled Lord of Verulam Prince of Knights and Steward of Brittain in his Shrine and Iacob de Voragine ' Ere long we find him made a Bishop in the Holy Isle and there he did Succeed the Brittish Druyds and his Scholars were enow with their Blood and Carkasses to make the name of Litchfield But the turning of Druyds into our Bishops in Lucius's time is no more certain I think than that those were the Flamins or Arch Flamins of whom we hear so much of late but of old few or none relate it but only Monmouth The Name of Flamin came to Brittain from the Grecians or the Romans who had Druyds from the Brittans where they were most Sacred Priests at first but three but when every God and Godded Man or Daemon had his Flamin they became extreamly innumerable Yet the first three still kept their Distance Place and Seniority from whence the Phrase of Arch-Flamin which yet I dare not assert to have been in Brittain or to be so much as known in the time of Lucius or the name of Archbishop But of this Sir Henry Spelman of Lucius's Epistles in Gratian and Mr. Patrick Young on Clements Epistle to the Corinthians But Fenestella with his Names of Bishop Arch-Bishop Cardinal Patriarch Metropolitan c. is now come out with another Title of a later Age than he that lived in Tiberius But to return to our Brittish Druyds moulding the State and yet they would not speak of State but in or by a Common-Council as was touched before in the Militia and among these the same Caesar will tell us that there was a chief or President but chosen by Deserts and not by a blind way of Succession Si sint Pares plures suffragio adlegitur nonnunquam etiam armis de principatu contendunt Nor is it probable the Brittans should be great Patrons of Monarchical Succession which could hardly well consist with their Gavelkind which is not only in Kent but in divers other Places of England and in Wales from the Brittans as we may learn from Parliament in 27 Hen. 8. and in K. Edwards Statute of Wales with Littletons Parceners And his Commentator makes it one mark of the ancient Brittans and from them also to Ireland and from the Brittish Gavelkind do all the Children yet among us part their Fathers Arms of which also the great Judge on Littletons Villenage But on the Parceners he deriveth the Crowns descent to the Eldest from the Trojans to the Brittans so indeed do many others with Monmouth and Basingstock Yet our Best Herald the Learned Cambden will deride the Story of the Trojans coming hither but his many Arguments to prove the first Inhabitants to be a Kin to the Gauls do no more convince me that the Trojans might not come hither afterwards than that the Normans did not come because the Saxons were before them I repeat nothing from Gyraldus Cambrensis Matthew Paris Hoveden Huntingdon or others who derided Monmouth till they were convinced by some Brittish Writers which themselves found besides all the Greek and Latin Authors cited by Virunnius Leland Sir John Price and divers others that I say nothing of the Scottish Chronicles or of the Learned man that shewed King
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
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
Leges ignotas Judicare de eis quas Nesciebant How it was in Parliament while there were only Barons by Tenure would be more enquired But of later times Commons have adjudged Commons and have joyned with the Lords in adjudging Lords of which there are divers Cases cited in the Fourth Part of Institutes Cap. 1. pag. 23. It may be considered that many Kingdoms and Common-wealths that were not Kingdoms in all Ages did consist of Three Estates as of Three Principles in Nature or Bodies Natural which might occasion the Phrase of Tribe in many other besides the Romans who in Three Estates were not so Ancient as the Grecians or Aegyptians that I speak not of the Gauls Britans or the Eastern Nations And if any would observe it might be possible to find the Prophets hinting a Trinity in divers Kingdoms or Estates and that not only for moulding but for overthrowing them Besides the Three Captivities or Three overturnings of the Iewish State and the Three blows of the Goat on the Ram in Daniel as alluding to the Three great Battles which did break the Persian Empire And why may not the Sacred Trinity be shadowed out in Bodies Politick as well as in Natural And if so our Three Estates may be branched as our Writs into Original Iudicial and Executive as shadows of the Being Wisdom and Activity Divine If I may not grant yet I cannot deny Original Power to the Commons Iudicial to the Lords Executive to the King as the Spirit to the Body or if you will the Head or Fountain of Sense and Motion But he must see by two Eyes and hear by two Ears as I touched before yet his very pardoning although it be by Law much limited doth seem to speak his Power Executive And so his Writs do speak aright Because my Courts have so and so judged Therefore I do so and so command the Judgment shall be executed And if any will assert the Militia to this Power Executive I shall also grant it to the King So that it may be alwayes under the Power Original and Judicial This might belong to the Lords and that to the Commons And the plain truth is I do not find more Arguments to prove the Judicial Power to belong to the Lords than I do for rhe Legislative in the Commons And as it seemeth to be above so below also it may be much disputed That the Legislative Judicial and Executive power should be in distinct Subjects by the Law of Nature For if Law-makers be Judges of those that break their Laws they seem to Judge in their own Causes which our Law and Nature it self so much avoideth and abhorreth So it seemeth also to forbid both the Law-maker and Iudge to execute And by express Act of Parliament it is provided That Sheriffs be not Justices where they be Sheriffs But if Execution be alwayes consonant to Judgment and This to the Law there is still most sweet Harmony and as I may say a Sacred Unity in Trinity represented That the Commons should have most Right to the Power Original or Legislative in Nature I shall leave to be disputed by others I shall only touch some few Particulars which have made me sometimes to suspect that by our Laws and Model of this Kingdom it both was and should be so How the Roman Historian found the Judicial power given to the Lords by our Old Ancestors I did observe before he is as plain for the Legislative in the Commons Nay to the Lords themselves he saith in Judging was adjoyned a Committee of Commons both for Counsel and Authority Ex plebe Comites consilium simul Authoritas And again he sheweth how the Lords did sit in Council about the less Affairs but of greater all both Lords and Commons So also that those things which the Commons did determine Quorum Arbitrium penes Plebem apud Principes pertractentur they should be debated with the Lords for their Advice but not their Legislative Votes And the Mirror a good Comment on Tacitus in this sheweth how our Lords were raised out of the Commons and giveth them a power Judicial but where is their Ligislative Nay the Modus of Parliament will not only tell us that the Commons have better and stronger Votes than the Lords but that there may be a Parliament without the Lords as well as Prelates For there was a time in which there was neither Bishop nor Earl nec Baro so the Irish Modus and yet there were Parliaments without them but never without the Commons So that if the Commons be not summoned or for Cause Reasonable cannot or will not come for Specialties in which they blame the King Parliamentum tenebitur pro Nullo quamvis omnes Alii status plenarie ibidem interfuerint And the Kings Oath is to confirm the Just Laws which the Commons not the Lords but Commons shall Elect or Choose quas Vulgus Elegerit So in Latine and in French of Edw. 2. and Edw. 3. Les quiels la Communante aur ' eslu And in English of Hen. 8. and other Times which the Commons of the Realm shall choose And if we look into the Old Writs of Summons we shall find the Commons called ad consentiendum faciendum and the Old Writ addeth quod quilibet omnes de Comitatu facerent vel faceret Ii personaliter interessent As it is in the Modus of Parliament with sufficient intimation that without the Commons nothing could be done which the late Writs express thus Ita quod dicta Negotia Infecta non remaneant pro defectu potestatis c. But the Lords are called de quibusdam arduis tractaturi consilium Impensuri only as Counsellors not as Law-makers For the very same words are in the Writs for the Judges and others coming to Parliament although they do not Vote in making Laws This may also shew us how the Lords themselves did Elect the Knights of Shires and by Statute of Rich. 2. are to contribute to the charges of the County Knights who were to sit and Vote in Parliament as Law-makers for the whole County whereas the Lords were there but as Judges and the Kings Counsellors And is it probable they should retain to their own Persons that for which they delegated others who were there to do quod quilibet omnes facerent personaliter even all that all the Lords themselves should do as Freeholders not as Lords or the Kings Patentees who might so be his Councellors or Iudges rather than Law-makers this was more left it seems to the Commons who for this and other Reasons should not be Common Iudges as I think in private Causes or of private Persons but of Iudges or of such as the Mirror speaketh of whom elsewhere there was no Common Justice to be had But if the Lords had not a Legislative Right why did the Commons send up the Bills to them how came the Lords to joyn with the Commons in Passing of Acts
a Common Council in his time and before In the same Laws this William whom some call the Conquerour granteth that Cities Burroughs Castles Hundreds and Wapentakes should be so kept and watched as the Sheriffs Aldermen c. should best order for the good of the Kingdom per Commune concilium by such Common Council and a little after giveth this Reason Because they were founded for publick defence of the Kingdom and People thereof idcirco observari debent cum omni libertate integritate ratione a very happy Trinity And for Service with such Arms as were by Common Council assessed The same King called the Conqueror hath indeed such a Law That all Earls Barons Knights c. should have and keep themselves in Arms and Horses as it became and behoved them So much of this Law the King's Declaration cited for the Commission of Array But the following Words of that Law quite dash such Array for the Close of all is according to what they ought to us by their Fees and Tenure to do by Law sicut eis statuimus per commune Concilium Totius Regni Even by Parliament for the Common Council of the whole Kingdom These Laws of King William with the Additions and Emendations of the Confessor's were afterwards confirmed by King Henry the 1 st as appeareth by his Charter not only in the Exchequer but in other Places also besides that we have in Matthew Paris a Copy of which was kept in every County And the same Charter was again confirmed by King Iohn they know it may be proved and again by King Henry the 3 d. and so it came into the great Charter and by Consequence Confirmed in more than thirty Parliaments In which also there hath often been most especial Care of this touching the Militia being one of the main Causes of those Statutes entituled Confirmationes Chartarum and of those De Tallagio non concedendo except by common Consent in Parliament besides many later Statutes in King Edward the 3 d. and Henry the 4 th with other Times I deny not that in Henry the 4 th there did issue out a Commission of Array But it is as true that in the last Parliament of the same King Henry the 4 th it was again declared as the undoubted Right of this Kingdom not to be charged with ought for Defence of the Realm or Safeguard of the Seas but by their own Will and Consent in Parliament By which we may learn how to interpret all the Precedents acted by the King for his Array and by how much the more is it true that some Commissioners of Array have been confirmed by Parliament which is always needful to Confirm any such Array Which yet is not proved ever to be Paralelld in any Parliament for ought I can find For in all yet seen there is no such boundless Authority given to two or three Strangers or others to compel all Men but themselves to provide and bear Arms how and when and where it shall seem good to such Commissioners Which at once seemeth to Dissolve all Laws of Liberty Which by the Mirrour with other old Lawyers is chiefly placed in this not to be tyed to any Man but by ones own Consent In explaining of which they are Large in shewing how the Tenures of the Crown were appointed for Defence of the Kingdom and none tyed to Service but according to this Tenure which was assessed by Common Consent And if such Commissions of Array might be Legal from the King Escuage is so far from the worst or hardest Tenure as it was commonly thought that it would prove the best and easiest in all the Kingdom For if the Escuage be uncertain by Tenure None that hath read so much as Littleton can be Ignorant that by the Commom Law and Custom of the Kingdom it is not to be assessed by the King or any other but by Common assent in Parliament which hath now done much to settle this also And if Certain then is the King as really limited as the Tenant So that the King cannot command or require his Tenant but according to his Tenure expressed Not when he will For it must only be in time of War and this is not to be determined by the King but by the Courts of Iustice. When they are open as appeareth by all the Law-Books in the Case of Roger Mortimer Thomas Earl of Lancaster and divers others Nor in all times of War but only in a Voyage Royal to which Escuage is most properly tyed and this must not be determined by the King who may be a Child Sick Incomposed nor by his Marshal or Constable but by the Courts of Justice Nor in a Voyage Royal as long as the King may please But according to the Tenure usually forty Days for each Knights Fee and it hath been demurred in Law when those forty Days should begin They are Littleton's own Words and very Pregnant as if he thought that by Law the King could have no Host or Muster but by Consent of the Commons and he was as like to know our Laws as most Men living now Nor is the Tenant to serve but according to his Tenure in Gascoyn Wales Ireland Scotland to which Escuage proper but rather from the Scute or Shield and the Books have divers Cases where the King hath required Service denyed by Limits in Tenures which the Courts of Iustice especially Parliament in all Ages did determine Nor is the King to determine how the Knights shall serve him whether in Person or not For this is by Law at the Tenants Choice And if the Knight or his Proxy will not attend or stay out his Time yet cannot the King proceed against him but in a Court of Iustice and not by Marshal Law Yet the Marshal's Certificate is a Legal Evidence that the Tenants did not appear in Service but his Reasons must be heard with all just Pleas. Nor with what Arms or Horses the Tenants may serve all is expresly limited if the Tenure be certain and if not Certain it must as all Lawyers know be assessed by Parliament which did also at first establish that which now is Certain Nor would it be difficult for a mean Historian to shew how in all Ages the Militia was as well disposed and managed as it was Moulded by Common Consent which is very considerable and the rather because all that wrot for the Array did most or only run out in this That the King had the sole disposal of the Militia not attending that if this had been proved which never was that I know yet this was only but half and it may be the least half of the Question For by that strange Commission of Array the King did not only challenge the Right of Disposal of the Legal Militia already setled but also of Moulding and Making a new Militia not yet made or ever thought of that I could learn by any of our Ancestors If I were forced to enter the
quem injurià afficiant Beseeching them mainly to mind this That they wronged none A most pious Christian Motion And our Monthly County-Courts are as old as this Parliament at Exon. The Acts are printed But I must not digress to their Ordeals appointed there for Perjury In this Kings Reign the Pope sent his Bull to excommunicate the King and all his Subjects For that Per 7 annos destituta fuerat Episcopis omnis Regio Gavisorum id est West-Saxonum Whereupon the King summoned a Parliament Convocavit Synodum Senatorum Gentis Anglorum As saith the Monk of Malmsbury Et Eligerunt constituerunt Singulos Episcopos Singulis Provinciis Gavisorum For the Bishops Shire used to be equal to the Earls or the Ealdormens Shire with whom he sate in Folkmoote Et quod Olim duo habuerunt in quinque diviserunt King Ethelstane came next He was the first of all the English Kings that ruled over all the Island conquering Wales and regaining Scotland Which being subject to England as a Dukedom thereof was advanced to a Politick and Royal Kingdom As the learned Fortescue doth plainly affirm And for this against all that Buchanan writeth I need onely refer to the Authors and Records cited by the great Master of Antiquities with other Learning Mr. Selden in his short but pithy Notes on it with Hengham To which we may adde somewhat in Polydore and the Saxon Chronology from the year 934 but especially from Oswald's Laws and others of the famous Edgar vouching Ethelstane for Scotland Of which we read in many places beside the fourth Part of the great Reports But that victorious Monarch suffered the Scot to reign under him saying That it was more glorious to make a King than to be a King A pious Prince to whom we owe for translating the Bible from Hebrew which some think he did by some Converted Jews Among his Laws now extant we find divers enacted in Celebri Gratanleano Concilio where there were Archiep. Optimates Sapientes ab Ethelstano vocati frequentissimi And again at Exon we find him Mid his Wytan and their Wergylds for the King Archbishop Eorles Bishops Ealdermen and other Degrees may suffice to prove them to be Acts of Parliament With those several Degrees there mentioned we may compare the Laws of King Edgar and Canute in divers places one of the Ranks of their Nobility as a General or great Commander in Wars which may be observed for the Militia Edmund succeeded and at London holds a Parliament of Clergy and Laity ge Godcundra ge Worulcundra And again Mid Witena getheahte gegodra hada gelewedra And to the Parliament he giveth solemn Thanks for their Aid in setling the Kingdoms Peace His Laws are printed And we omit his Charter to the Church of Glastonbury which was made cum Concilio Consensu Optimatum as we read in Malmsbury But I must not omit that Parliament of his recorded in the Mirrour where we find a kind of Appeal or a legal Accusation of Treason brought by Roceline against Walligrat in full Parliament in the time of King Edmund In King Edred's Reign there was a Parliament solemnly summoned by Writ as we read at large in the Abbot of Crowland To which there was then a great Charter confirmed being drawn or dictated by Turketulus then Abbot but he had been Lord Chancellor And the date is in Festo Nat ' B. Mariae cum Vniversi Magnates Regni per Regis Edictum summoniti tam Archiepiscopi Episcopi ac Abbates quam Caeteri totius Regni Proceres Optimates Londoniis Convenissent ad tractandum de Negotiis Publicis totius Regni in Communi Concilio Edgar was a great Monarch and as great a Conqueror by Sea as Ethelstane by Land It might be easier to shew his four Seas of which so many speak than to set their exact bounds Yet it may not be unworthy of our thoughts to consider how our Ancestors did often divide the Office of their Admirals usually as Nature hath parted our Seas as thinking it indeed too great an honour and a burthen for a Subject to be Admiral of all the Seas of such an Island But the late Cardinal of France did wisely it was thought dispose or rather retain that Office as the best Jewel of that Kingdom which yet by Sea might yield to this But I must not digress nor can I determine the bounds of Edgar's Conquest to the North they say to Norway or the West Of which some speak as if they would but give us hints for farther search and Queries I dare not affirm that in those days our Saxon or British Ancestors did know America But if we may credit any Records besides the Scriptures I believe or know it might be said and proved well that this new World was known and partly inhabited by Britains or by Saxons from this Island three or four hundred years before the Spaniards coming thither Nay the more I consider the Discourses which did pass between the Spaniards and the Mexicans the more I could believe the King himself of Mexico might possibly descend from those that went from hence to Florida or rather Mexico So that we need not wonder at the British Words or Beads the Crucifix or other Reliques which the Spaniards found at their Arrival And for this besides so many other Authors we have much among the British Annals Those in special left by Caradoc of Lancarvan or from him continued by the Beirdhs of Conwey and Stratford gathered and translated by the learned Llhoyd To which we may adde what Doctor Powell hath of this out of Records and best approved British Authors in the Life of Owen Gwyned or David and Madoe his Sons about the Reign of King Stephen To which at least for that which concerneth Hanno or the old Navigations with Plato's Atlantis or what else appeareth in Aristotle Theophrastus Virgil Seneca with others it may not be amiss to compare two late and very learned French Authors of Peleg and orbis maritimus very worthy I think of good perusal But to return to Edgar's Parliaments How that great Council did often dispose the King himself we must discourse in a fitter place We shall now but observe that good Historians tell us that King Edgar by the Council of the Kingdom did repeal the Acts of Edwin both his brother and predecessor Convocato ad Brandanfordeam Regni Concilio fratris Edwini Acta decreta rescindit And the famous Oswald's Law was signed by this King Cum consensu Concilio astipulatione Archiepiscoporum Principium Magnatum It is printed and found in ancient Authors King Edgar's Charter to Glastonbury reciting the Acts of so many Kings before him was confirmed Generali assensu Pontificum Abbatum Optimatum If we may believe the old Monk And the Charter is to be read at large Archiepiscopis adhortantibus consentiente etiam annuente Brithelmo Fontanensi Episcopo caeterisque Episcopis Abbatibus Primatibus And
hither for Treason or any other Crime whatsoever Another Charter he granted to the same Minister Cum Concilio Decreto Archiep. Episcop Comitum aliorumque Meorum Optimatum And a third Charter addeth Aliorumque omnium Optimatum And a little lower Coram Episcopis Abbatibus Comitibus omnibus Optimatibus Angliae omnique Populo A very clear and full Parliament His Laws are in print I must not so much as glance but as he that followed the great King so swiftly that his steps could not be seen upon the Sand. May not his third Chapter extend to Priviledge of Parliament ad Dedicat. ad Synod ad Capitul venient Si Summoniti sint c. sit summa Pax. Hoveden will help sometimes for a Comment That of Out-Laws should be explained It is Ore Lagali Regis which is Per Iudicium Coronaterum or in the great and old City Per Iudicium Recordatoris See King Ethelred's Charter to Vlfrie of the Lands of Ethelsig outlawed for Theof Rep. part 6. Pref. But of Woolff-head and the Outlaws being slain upon Resistance I have spoken already As also of Tythes and King Ethelbert's Parliaments in these Laws mentioned and of Rome-scot Danegeld and Weigrylds But of these again ere long Of the Kings Duty and Oath we must speak more in due time Of his Pardon before as it might stand with the Oath of his Crown Here also we find that when his Pardoning Power was largest yet it could not reach to Murder or Treason or other Crimes but so as they must abjure and if they stay and be found any might do Iustice on them without Iudgment It is the 19th Chapter Somewhat we said of Degrees or Counts Earls Thanes or Barons The Phrase doth here occur but of elder times by much nay long before King Ethelbert's Barons if we may believe Historians But of this again in due time Of the Iews also before Iudaei omnia sua Regis seemeth hard but it had a gentle Comment in succeeding times and here also they must be defended Sub tutela defensiones Regis Ligeà The Phrase may be remembred till we meet it again King Iohn did but confirm King Richard's Charter to the Iews See Hoveden and Matthew Paris of Richard and Iohn Walsing Edw. 1. Neustria Pax per breve Regis is a short Expression but it might have a long gloss and be compared with all our books laying this for a principle or foundation of Law That Writs were made by Parliament and without such common Consent could not be changed Of which the Mirrour Bracton Fleta divers others But of another Breve de pace before the Combat in Right or Assize Glanvil Hengham and the Register Of Frank-pledge Tythings Counties Hundreds and Wapentake somewhat before This Law may fill up Lipsius on his Tacitus nor is it useless for the Militia Hac de causâ totius ille conventus dicitur Wapentac eo quod per Armorum i. e. Weapun tactum ad vincem confoederati sunt There is an old Comment on that de moribus Germanorum that may help and please in all of Hundreds Wapentakes Cities Counties with Counts or Eolders of which before in State and Church But to these of the Church I did not then adde their Power and Custom of healing the Sick by anoynting them For which the Saxon Canons of Aelfrick may be perused In this Chapter of Greeves with the Appendix de Heretochiis we may see the whole Model of the old Militia with the Power of Headboroughs Constables Bayliffs Aldermen Sheriffs Lieutenants or Generals all the Greeves both in the Gree and Vae Peace and War for so the Law is pleased to criticize and for Peace we do agree The Law is in print and may be read of all in which it is so clearly stated and asserted by these Laws I should do wrong to take them in pieces Not onely in matters of common Justice or serving of Writs or petty Cases of Peace as some have pleased to express it but when any unexpected doubtful mischief ariseth against the Kingdoms or against the Crown Nay when it proceedeth so far as to War Battel or pitched Fields the Heretoches must order the War Ordinabant acies alas constituebans Prout decuit prout eis melius visum est ad honorem Coronae ad Vtilitatem Regni And lest yet there might be any mistake the same Law telleth us That those Heretoches ductores exercitus capitales Constabularii vel Mareshalli exercitus were and still ought to be chosen Per Commune Concilium by Common Council and for the common good and profit of the Kingdom even as the Sheriffs saith that Law ought to be chosen Again the former Laws are renewed for those that flie and those that die in the War and of their Heriots which here are again remitted with all Relief Of which before I am the longer in this because it was this very Chapter which has been so strangely cited and that also from a place as much suspected as any of all these Laws which I do â—ot speak as if I thought they might not be strongly asserted even there where the oldest Copies are defective And for one instance of many I might produce that piece about the Kings Oath which is cleared not onely by the Mirrour and divers others but by another passage in the oldest of these very Laws themselves by comparing it with what is there said of King Edward 's own Oath to his Kingdom Of which much more hereafter on occasion To that of King Arthur's King Edgar's and King Ethelstane's Conquests much might be added in special touching Scotland Of which before And now I adde That what is here ascribed to Eleutherius may be much asserted and enlarged from those that have clearly stated the bounds extent and jurisdiction of the Province and Diocess of York for to it belonged as I find in a very good Author all the Church of Scotland long before it was divided into modern Bishopricks That of Norway and their Affinities with England and Oath of Fealty may now be little worth but in this that is added at the close of that Law So did King Edward establish Per Commune Concilium totius Regni By the Common Council of the whole Kingdom or by Parliament which may well be added to each and every of those Statutes How the Militia was on particular persons or places assessed by Common Assent hath been observed and cleared already I shall now only adde this That when such Assessments were made by Common Council it was then no more in the Kings power to release them than it was to impose them before or without such Common Assent For this might be cited in more than an hundred Charters to religious houses and places of greatest Franchise in which there is such an usual exception to the Trined-necessity of Military Expedition Castle or Burgbote and Bricqbote for here also as with the Romans they were especially Pontifices
with the Statutes of King William after the Saxon Laws I must but run and glance His Charter acknowledgeth his Crown to the Mercy of God and the Common Councel Communi Concilio assensu Baronum Regni Angliae It confirmeth King Edwards Laws with all those Emendations which King William added for the profit of the Kingdom It forbiddeth all Levies nay the Monetagium Commune but what was agreed and setled in King Edwards Reign And the Test of that Charter is by Arch-Bishops Bishops Barons Comitatibus Vice-Comitatibus optimatibus totius Regni Angliae apud Westmonasterienses quando Coronatus fui This was copied out into every County and kept in every Abby So much also we find in Matthew Paris Of his Charter to London I may touch in another place This I must not omit in his Laws Sive agenda proecipiat levia permittat hortatur maxima vitanda prohibeat yet still the Laws must be Manifesta Iusta Honesta Possibilis a kind of sacred Tetragram It is the 4th Chapter And the next is the Basis or Foundation of our Law process and of all Judicials In all Causes Accusers Parties or Defenders Witnesses and Iudges be and must be distinct Nec perigrina sint judicia vel a non suo judice vel loco vel Tempore celebrata nec inâ—e dubia vel absente accusato dicta sit sententia c. Nihil fiat absque Accusatore nam Deus Dominus Noster Iesus Christus Iudam furem esse sciebat sed quia non accusatus ideo non abreptus Testes Legitimi sint presentes absque ulla imfamia vel suspicione vel manifesta Macula Recte Sacerdotes accusare non possunt Laicos Nec oportet quemquam Iudicari vel dampnari priusquam Legitimos Accusatores habeat presentes Locumque Defendendi accipiat ad abluenda crimina c. And again Pulsatus ante suum judicem si voluerit causam suam dicat non ante suum Iudicem pulsatus si voluerit taceat Si quis Iudices suspectos habeat advocet aut contradicat Appellantem vitiatam causam appellationis Remedio sublevantem non debet afflictio vel detentionis injuriare Custodia Unusquisque per PARES suos Iudicandus est ejusdem Provinciae Quicquid adversus Adsentes vel non a suis judicibus penitus evacuetur Chap. the 5th and the 31th Iuramentum debet habere Comites Voritatem Iustitiam Iudicium si ista defecerint non juramentum sed perjurium est Qui per lapidem falsum Iurat perjurus est Deus ista accipit sicut ille cui juratur accipit Iuramenta filii filiae nesciente Patre vota Monachi nesciente Abbate juramenta pueri irrito sunt Are These the Laws of England or of Nature rather These we owe to Beauclerck which he owed much to Cambridge See Malms of Plato's Kings Touching the Militia beside that in General confirming King Edwards and King Williams Emendations There are some particular as of Tenants by Knights Service to be freed from Gilds c. That so they might be more ready for the Defence of the Kingdom and in it the Kings Service This agreeth with the old Writ de essend Quiet de Tallagio Which the Tenant in Chivalry might require of Right And Tenants in Dower or Widows had the like Priviledge of which the Old Register natura brevium That also of Edgar or Canute for Cowards in Land or Sea-fight is renued with that of Boocland as before Much also of Helfeng Releifs are agreed and setled For Earls and the Kings Thaynes with others called Meane Thaynes But in some Chapters Thaynes are equal to Barons And all Tenants En chief at Clarendon were stiled Barons and Relief is Cosin German to the Saxon Heriot Being for the Heir or Militia whence Heretoche in King Edwards Laws But the Dutch Here is also Dominus as Senior in so many Nations since the time of Charles the Great And some will have the Saxon Heregeat to be the Her 's Geat or Beast of the Lord or Here which of old was paid before or rather than the Mortuary And from this Here som would derive Haeres So that all Heirs should be Her 's or Lords as Homines were Yeomen You Men or Young Men but Homines in Law as with us Men are Servi Such they say were Yeomen and none Gentlemen but such as came from Barons or at least the Tenants in Capite if not in Antient Demesn But for this see Edw. 1. Tit. Attorney 103 And the Learned Ianus Dane-geld is here also reduced to 12 d. the Hyde as of Old from which it rambled to 3 4 6 8 10 or 12. strict provision is also made for keeping of Arms and against using or lending them for the dammage of Others Nay a mulct is set upon him whose Lance or Sword doth much Trespass though against his will He is to be severely punished that disarmeth any unjustly and must answer all the mischief that ensueth such disarming To this Kings time belongeth the case of William the Kings Chamberlain de Londonia who refused to find a man for the Army as his Tenour required But the Abbot of Abbingdon of whom he held in presentia sapientum in a Witen Moot rem ventilari fecit c. Unde cum Lege Patriae decretum processisset ipsum exortem Terrae merito deberi fieri c. by Friends it was composed and the Tenant enjoyed his Land I find it from Sir Robert Cottons inestimable Treasury cited by Mr. Selden on Hengham Nor can I deny but this with divers other cases might forfeit the Land But as in case of Alienation of such Tenures a Statute of Edward the 3d. provided that the King shall not retain the Forfeits but shall only take a Fine Reasonable which the Chancery must also assess by due Process So is our Law very tender in all cases of Forfeit And among the old Wytes Wardwyte was for the Militia being an acquittance of Mercy to him that had not found a man for the Servise according to his Tenure Of which old Fleta with others The Laws of this King do evince the Tryal per PARES to be long before the great Charter Nor would it be hard to shew it before King Henry and besides all other hints through Elder times the case is well known of Roger Fitz Osborn apprehended by Tiptoft Sheriff of Worcestershire and condemned for Treason in King William the Norman per judicium parium suorum Of which antient Historians before the Commentator on Magna Charta I should not omit King Henry's Charter to the Abbot of Bee confirming his antient Customs and Priviledges prescribed for St. Edmonds time for Grand Assizes c. yet to be found in the Book of Assizes lib. 26. Pl. 24. and in the 3d. or 8th part of the great Reports and in the Comment on Magna Charta cap. 11. but here it is from Ethelred and Edward the Confessor One of
bring any Letters of Excommunication or attempt a Voyage beyond Sea without a Licence And for sequestration of the Peter pence till further order If that I have cited already were not clear enough for Parliament in these we may have more from Wendover or Matthew Paris where we are expresly told that the great meeting at Clarendon of which before was made up of a Lord President de mandato ipsius Regis with Arch-Bishops Abbots Earls Barons and to these also are added Proceres Regni which may here speak the Commons as in Hoveden Populus so often expressed of that Parliament For it may be remembred that Virgil himself doth acknowledge the Commons also to be very frequently called to Parliament from the time of King William as we may read in his large description of our Parliaments in Henry the first To which also for this Parliament at Clarendon we might cite very many Historians besides Gervase and the Quadrilogus or Becket's Life by 4 cited on Eadmerus and in Ianus from which there is much to be added to that in Matthew Paris Where it is also asserted that these Constitutions of Clarendon were not only agreed but expresly sworn by all the degrees of Parliament Episcopi Clerus cum Comitibus Baronibus ac Proceribus cunctis Iuraverunt c. as also that these were but a Recognition or Recordation of some part of the Customs and Liberties antecessorum suorum Of which also Florilegus thus coram lege Magnatibus facta est Recordatio regiarum Libertatum Consuetudinum Cui Archiepiscopus assensum non praebuit c. Nor would it be hard to shew very many if not all of them agreed in Elder times Of Foreign Appeals we spake before and the Writ Ne Exeas Regnum is as old as Rufus if we may beleive Polidore or better Authors To that of Appeals from Ecclesiastical Courts to the King or Delegates I can add very little to what is in Caudries Case in the 5th part of the great Reports with the preface to the 6th That against Excommunication of the Kings Tenants or as the Elder Law was of the Barons is cleared enough in the Notes on Eadmerus from the first Norman Records To which may be added a Law of Henry the first of the Wills or Legacies of his Barons vel Hominum with which the Learned Ianus compareth an Old Law of Canute and toucheth the power of the Ordinary in Case of Intestates which is prescribed from most antient Parliaments but the Original doth not appear I must not spend time in heaping up the many proofs of Parliament for the Assizes of Clarendon which were again renued at Northampton Hoveden is large and clear for them all and for the Circuits and Iudges in Eyre by full Parliment Communi omnium Concilio But the Mirror and those that write of Alfred will afford us these in many older Parliaments From that Assize of Arms for every Fee we may learn to expound the Statute of Winchester and others speaking of a former antient Assize which is here found at large To which I may add that what is here spoken of the Iustices presenting to the King may be expounded to the King of Parliament As is fully expressed not only in Fleta but in the said Statute of Winchester The Iustices assigned shall present the dafaults at every Parliament The defaults of Arms for the Militia And by this time I shall not need to speak of Escuage in H. 2d assessed by Parliament for Tholouse Wales and Ireland of which Gervase the red Book in the Exchequer and Matth. Paris with the Notes of Hengham To which I might add Matth. of Westmin de unaquaque Carrucata terrae totius Angliae quatuor denarii Concessi sunt collecti for the Holy Land But when he had the offer of the Kingdom of Ierusalem Convocato Clero Regni ac Populo it was rejected Concilio universo as the Monk of St. Albans speaketh Of K. Rich. Coronation and his Oath before the Nobles Clero Populo Hoveden is very large From him it may be found in others And of the Jews in those times to whom he was a Friend as his Charters shew and very sorry for their sufferings who did help him much for his Eastern Wars as some relate with Polydore See Mr. Selden on Arundeliana Marmora his great Charter to the King of Scotland of many Liberties for which he did recieve 10000 Marks but still retaining the antient Dues to this Crown is every where For which I must not forget what was before in H. the 2d Malcolm became his man 't is said and did him Homage but on some disgust he was not Knighted by our King as was wont and Matth. Paris addeth also that the Scottish Kings Horse was the English Marshals Fee at such a Knighting But Hoveden telleth us that about two years after the same King came again and was then Knighted by King Henry Of his Parliaments and their Power in War and Peace I might cite very clear proofs The League with France was agreed by both Kingdoms Archiep. Episcop in verbo veritatis that was the mode in those days for them as for the Lords since in verbo Honoris Comites Borones Regnorum praestito Sacramento juraverunt And his Sea Statutes were made de Communi proborum virorum Consilio as the Charter it self expresseth it in Hoveden Wendover or Matth. Paris Who doth add that per Consilium magnatum there were made Iusticiarii super totum Navigium Angliae c. Which with divers Records of H. 3d. may be added to the Admiral or Saxon Aen mere eal Over all the Sea How the Lord Chancellor being left the Custos Regni did on pretence of the Kings Warrants pole the People is at large in Hoveden and others But in the Monk of St. Albans we may read that er'e long in Parliament of Commons also assensu Communium definitum est it was enacted that none should so domineer in England to disgrace the Church and oppress the People And that all the Castles which the said L. Chanc. had committed to his Clients or disposed without the Parliaments assent should be presently delivered up and in particular the Tower of London where he then was and was glad to yield and make his peace with much submission for to save his Life For which also Polydore Virgil is worth perusing And in him we also find the North committed to the Bishop of Durham who of an old Bishop was made a young Novice Earl but he paid dear for his honour and how the Chancellor excused himself by the Kings Command As if saith Polydore the Kings Command might disannul the Law Quasi fas esset jus omne principis jussu rescindere Of the Kings Voyage to the East I shall not speak nor of the famous Prophesies he found touching Antichrist and the Revelation They are in Hoveden besides all others Where we also find him ransomed