The Lord Chancellours oath is thus That he shall doe right to all manner of people poore and rich according to the lawes and usages of the Realme s 10. R. 2. rot Parl. 8. The Barons of the Exchequer sweare no mans right to disturbe let or respite contrary to the lawes of the land t 4. Jnsti 109. which must be meant of the knowne and certain Law of the Land called in Magna Charta Legemterrae upon which all Commissions are grounded wherein is the clause to do what belongeth to Justice according to law and custome of England u 2. Jnsti 51. The illustrious Viscount of St Albane amongst his Aphorismes of universall Justice has this Let no Court deale in cases capitall our Lawes say Civill too but out of a knowne and certaine law God denounced death then he inflicted it nor is any mans life to be taken away who knew not first he had sinned against it w Augm. scient 402. By this Law of the Land although there is not nor cannot be any liberty which should protect the transgressors of it yet have all Offenders a legal tryall nor are possessours of the worst faith thrown out without the hand of the Law onely against those who attempt to subvert or weaken the Lawes there is a Writ to the Sheriffe in nature of a Commission to take the impugners and to bring them as the Register to the Gaole of Newgate x Regist 64 2. Justi 53. This as the Lord Cooke is lex terrae The Law of England to take a man without answer or summons in this case and the reason given is He that would subvert all Lawes deserves not the benefit of any Amongst the articles exhibited to King Henry the eight against Cardinall Wolsey he is charged with oppression in imprisoning Sir John Stanly and forcing him to release a farme taken by Covent Seale of the Abbot of Chester c. as the words by his power and might y Artic. 38. And that he threatned the Judges to make them deferre judgement z Artic. 39 that he granted many Injunctions the parties not called nor any bill put in by which diverse were cast out of their possessions of their Lands and Tenements a Artic. 21. The close was That by his cruelty iniquity and partiality he hath subverted the due course and order of the lawes His Inditement went higher and accused him That he intended the most ancient lawes of England wholly to subvert weaken and this whole Realme of England and the people of the same to the Lawes Imperiall commonly called the Civill Lawes and to their Canons for ever to subiugate c. b Mich. 21. H. 8. Coram Rege Now although the Civill Law deserves as much honour as can be given it and commands and is obeyed much abroad yet this Law of the Land held the possession here by a long unquestionable prescription and after the tryall of many ages got the affection of the people whose fathers grew up happily under it which was not easily to be removed the rather because seldome doth any Nation willingly submit to or welcome the Customes and Laws of another which they have not been acquainted with and our Judges who wil not in our Books part with one of its Maximes c 2. Jnst it 210. would not have fallen downe before the shrive of any unknown Themis and have offered up the whole tables It were no hard matter to heape up testimonies Vid chap. 3 if some would thinke it lawfull to trust men in their owne arts or professions and can it not but be more reasonable that such should be heard in the defensive then that those who professe full Hostilitie bringing with them onely mistakes of their owne prejudice should sit Judges of the tryal which is in their own cause and if thus far the reines be given to turbulent desperate spirits every thing how sacred soever may be arraigned at these tribunalls the articles of our faith will quickly totter nor will any principle be safe This discent will be fatall there being no stay in the precipice the bottome onely must receive men where he that falls is crushed to pieces what is worse those unhappy ones who follow cannot see their danger Thus we have seen what the common Law the Liberty and Franchise of the free people of England the law of the land is The law of antient time d. 27. E. 1. of old time used e 25. E. â— the old law f 42. E. 3. for ages according to the judgement of these Parliaments makes the law more venerable it is an addition of honour to it Now it followes in order to speake something of the Antiquity of this law The Antiquity of the Law But as the beginnings of things sometimes are rather guessed at then knowne it is no wonder that there should be no generall agreement here of opinions some will make the Law a Colossus of the Sun knocking the Starres with its head more ancient then the Dipthera or Evanders mother others a late small spark struck from the clashing of the Norman Swords the child rather of Bellona then Jove terrible in the Cradle the truth being mistaken by both To relye upon the authority of a Chancelour or rather chiefe Justice in the time of King Henry the sixth upon which the * r. 2. Epi. r. 6. Epist antiquity should be raised was lesse then that of Aventine who professed History where after a prodigious linke of German Kings before the Arcadian Moone he will needs bring his Dutch to the Wars of Troy which he proves out of the laws of Charles the 4. who lived lesse then two hundred yeare before Aventine and some three hundred yeares before us from which he is peremptory there must be no appeal g Boicar Hist 49. for a great Lawyer continually imployed in the publick affaires or in his study where his many volumes upon the law show the whole man might well be taken up to faile in a piece of History if he may justly be said to faile this way who onely trusted another who was carelesse It is no blemish such as can deserve the censorian rod of our Criticks besides all men love to consecrate their originalls This is allowed to antiquity saies Livie mixing things humane with divine to make the beginnings of Cities more majestick and we may say as he doth of his Rome of our Lawes if it be lawfull to canonize any to carry them up to Heaven or fetch them downe from thence that glory alone is due though it needs not to the most sacred lawes of the land Sir John Fortescue his words are to this effect That if the lawes of England had not bin most excellent the Romans who cry up their Civill Law Saxons Danes or Normans had altered them h de lg Ang l. c. 17. by which our Lawes must be Brittish at least and our
Hovedens words this I will note here that Henry the second made Ranulphe of Glanville chief Justice of England by whose wisdome the laws underwritten were made which we call of England make no new law nor that chief Justice a law-maker they explain what is intended by the laws of Henry the first his Grandfather for the laws there underwritten w Hoved. pars pest 6â—0 are meerly King Edwards laws confirmed by William the first king Richard the first swears to keep the good laws c. x Paris in Rich 1. without saying of St. Edward which yet can be no other those as is shown had got the name those must be meant by the expression good lawes the kings before and after swore to keep them K. Iohn absolved from the Popes thunder though at his Coronation by that oath to destroy bad laws substitute the good to exercise right Justice he had sworn the same y Ma. Par. 197. is forced to swear that he will as there revoke or restore the good laws of his ancestors here the expression good lawes is interpreted and especially the lawes of king Edward z Id. 239. In the same place where king John commands that the lawes of his Grandfather Henry be kept this must be intended of the first laws of his great Grandfather Henry the seconds Grandfather so often mentioned in the controversie betwixt Henry the second and that Martyr of the Roman make without a cause disobedient unruly Becket a Hov. 492. in H. 2 called by that king as before his Grandfathers lawes I say his great Grandfather Henry the first before here recited where Henry the first grants lagam Edwardi regis the Law of king Edward A Charter of which Stephen the Archbishop of Canterbury produces in the very next page of Mat. Paris after the absolution which well might be produced several transcripts of that Charter being sent by Henry the first to be preserved in the Abbies of all the Counties and there tells the Barons of the kings promise which he forced him as he says at his absolution to make that was to take away all injust laws and the good and just laws to wit as he still the laws of king Edward to revoke for restore and cause to be observed by all in the realm And now as he goes on there is found a certain Charter of king Henry the first by which if ye will your lost liberties you may to the Antient state revoke the transcript agreed word for word with the Charter b Ma. Pa. hist 55.210 the great sticklers for the lost liberties for the good and just laws for St. Edwards laws are all of them Normans or Norman-French such as came in since Edward and being setled here for some generations now made a great part of the whole amongst which are Fitz-walter Marshal of the Hoste of God and of holy Church this was his stile in the succeeding wars Vescy Percy Ros de Bruis Stuteville as there Saerie of Quincy Earle of Winchester the Earle of Clare descended from the Norman Gislebert Bigod Vere Fitz-Warin Marshal Beauchamp Manduit Fitz Allen Mandeville * Estoteville Munhrey * Mowbrey Montfichet Munifichet Montacute de Gant Laval c c id 254. These when king John asked them what laws they would have answered not Sir We are the Norman Conquerours give us this people for a spoile a prey make them our villains but quite another thing they offer him a Scedule for the greatest part as this Monk containing the antient laws and customes of the realm the chapters of the laws and liberties says he which the great men the Barnage or Baronage as in other places he cals them sought to be confirmed were partly written above in the Charter of king Hen. partly taken out of the ancient laws of king Edward d id ibid. Alll which lawes with much adoe were confirmed by king John this Scedule is the same and everywhere agrees with our Magna Charta or grand Charter and that of the Forrest granted and confirmed by king Henry the third called then by this Author the long required liberties e id 323. or rather by the whole Clergy and Nobility who tel the king they would give him the fifteenth which he desired if he would grant them the long required liberties which says this Historian the king granted and presently Charters were writ one of the common liberties c. And strengthened with his seal and one sent into every County But says he the tenors of the Charters is had above more expresly for here he recites not a word of them So that as he still the Charters of both the kings are not not found in any thing unlike u 5. H. 3 l. 1. Mort. dancest In. 323. in an 1224 the 8 of the King as he yet th charters has an 9. In the year foregoing this King was sought to by the Archbishop of Canterbury Stephen and the other great men the Barons at Oxford where he held his Court to confirm the liberties and free customes c w id 316. Which he did not then do but sent his letters or writs to all theâ— Sheriffs of the realm to cause twelve knights or legal men of every County to enquire upon oath what were the libertics in England in the time of king Heary his Grandfather so he is yet called x id 317 Ma. Wâ—st the breakers of the Charters are Excommunicated with candles burning cast away extinguished and cast away stinking y Id. 861. Thus we see the stream of the laws of king Edward the ancient liberties and free customes some times running freely sometimes weakly sometimes stopped in their course at last have brake through all the Dams have mixed and incorporated with the great Charter whose basis and foundation they are z Nobilis D. Rog. Twisâ— den praefat in Ll. w. 1. H. 1 there still in being and still the fountain of the Common Law The great Charter raised upon this basis in one of the Statutes of confirmation is commanded by king Edward the first to be allowed by the Justices in judgement as the Common Law a 25. E. 1 c. 1 So that well might the Lord Cook say The great Charter is but a confirmation or restitution of the Common Law b Iast 81 It hath been confirmed above 30 times and by a Statute if any Statute be made against one of these Charters it is to be void c 42 E. 3 c. 1 â— which if it were intended not of the time past but of the time to come I see no such absurdity in it as some mens over wise policies would fancie some parts of it being as moral and immutable as the Decalogue it selfe As those That no man shall distraine for more service then is due no man shall be amerced for a small fault but after the manner of his fault no man shall bee destroyed
of our old English Church he that killed a man in publike war was enjoyned a penance of 40 daies l Concil sax 383. By the Common law killing by misadventure or in a mans own defence was murder founded upon the judicial law before the Cities of refuge the forfeiture of both was as in the case of murder before the Statutes of Marlebr and Gloucest the forfeiture of goods and chattels remaines yet If he that kills by misadventure escapes the Towne where the Fact was committed is to be amerced m Fitzher Corone 302 2. Iust 148 149. So where the killing is se defendendo n 2. Inst 315. Mens lives are so precious in the Law that the death of a man cannot be justified the Defendant in an appeale cannot justifie the death se defendendo but must plead not guilty o B. Appeal 122. A verdict that A. killed B. se defendendo is not good the special matter must be set down that the Court may adjudge the killing to be upon inevitable necessity p Corone 302 Maiming wounding menace of life and member in defence of the possession of Lands or Goods is not justifiable An infant of nine yeers killed another infant and hid him c. the opinion of the Justices was that he should be hanged but execution wat respited c. q Corone 57 3. H. 7 d. 12 If a man be drowned by mischance in any pit not fenced the Town is to be amerced r Coroue 304.320 v. 339.402 421. so where a man dyed suddenly of a Feaver and was buried without viewing by the Coronour Å¿ ibid. 329. a Lunatick kills a man he must sue for his Charter of pardon t ibid. 351. And where the worst of men suffer those punishments which Justice inflicts which it were cruelty destructive to Government and Society to forbear it is well said to punish the Homicide and sacrilegious is not effusion of blood but ministery of the Lawes I say where justice doe strike it is with an humane severity the offender with us does not carry to the place of execution his own Crosse he is not first whipped then nailed naked to the unhappy tree as it is called we have no Italum Robur Robur or strong hold as it is Englished in a stinking prison horrible for darknesse where malefactors necks were broke by tumbling them headlong from the stock of a tree there fastned in the earth No rack or brake where the party innocent oftentimes was tormented till he accused and condemned himselfe being hoised upon it and fastned with ropes to it his hands at the upper part and feet at the nether part his joynts were not onely racked but the tormentors oft burnt and tore the flesh from his sides with hot plates and Iron pincers Those who would have introduced the Civil law in the time of King Hen. the 6. brought the rack into the Tower * 3 Just c. 1. as a beginning to it Hereupon as is observed the most reverend Sir Iohn Fortescue Chancellor or rather chiefe Justice of England writ in commendations of our Lawes where he maintains that all tortures are contrary to them There is no Law saies the Lord Coke to warrant them in this land Although there were no ful proofs against some of those horrible miners in the Gunpowder treason yet was it not thought fit if the discovery could be made any other way to take the extraordinary of the rack Some other legalartes were used yet I cannot tell what could have been extraordinary or illegall in the case of such Hellish parricides who if they could superas evadere ad auras and assume bodies could not much exceed themselves Garnet and Hall betrayed themselves by their own conference which was permitted to catch them That conference is called by the Earle of Salisbury The finger of God Thereby so he tels Garnet the Lords had some proofe of matter against him which must have been discovered otherwise by violence and coertion a matter saies the Earle ordinary in other Kingdoms but forborn here c. v Proceed against the Gunpowder Traytors He addes His Majesty King James and the Lords were wel contented to draw all from Garnet without racking or any such bitter torments We have no dejectio è soxe like that headlong throwing down from a rock in the Tarpeian mount Nothing like the Gemonian staires whether the malefactour was either dragged * According to Tacitus Aun l 5. and cast into the Teuere It is said there was not so much left of Sejanus untorne by the people which the Hangman might fix his hook on to draw into the River or as others haled by the Executioners hook thrust into his throat and having his thighs broken burnt clad in a coat dawbd on the inside with pitch and brimstone We have no sawing asunder from the head downward no condemning to a Fencing schoole to beasts mines or mettals no banishment deportation no most barren Gyaros to confine men to not so much as relegation is known in our Lawes No empaling no wheele No deflowring Virgins by the Hangman before they be put to * Quia in auditum saies Tacitus trium virali supplicio virginem affici it had bin far lesse to have broke the custome then to â—â—de this â—â—k â—o keep it L. 5. Ann. death Before Villainage expired here the villain might bind his Lord to the peace he could not kill him if he maimed him he might be indicted fined and ransomed By Magna Charta which is affirmance of the Common law No free man is to be amerced but according to the manner of his offence Misericordia is the word used for amercement there must be mercy in it saving his countenance salvo contenmento c. the Merchant saving his Merchandise the villain his wainage x Chap. 14 Glanu l. 9. c. 11. No amercement is to be set here upon private men but by affeerours who are to affirm upon oath what penalty the offender has deserved as Bracton to doe things fairly neither carried away out of love nor hatred The Writ of Moderata misericordia of moderate amercement is grounded upon this Statute which it reciteth and gives remedy to the party who is excessively amerced If the Jury give excessive damages against any man Attaint lyes usury is not to run against the heir within age y Stat. Mert. c. 56 among the Saxons it was unlawfull hence where rent is to be doubled for default of payment it shall not be doubled during minority of the heir Distresses are to be reasonable and if there be any other chattels sufficient sheep and beasts of the plough are not to be touched It would be infinite to goe on I should as we say not onely want day but a long life were too short to make a survey of all the parts to contract all the graces of this body and pourtray them so that they may be a little and
whom death with so much infamy so often really before their eyes cannot fright will never think any torment whatsoever where life is left them though with more misery then can be spoken terrible But it is thought horrible and grievous that a mans life which is invaluable in the law should be taken away for a thing of nothing for 12 pence Which says the most learned Knight is the antient law of the English Nay for lesse by the antient law of the English I may say so King Aethelstanes lawes begin with thieves and speak thus First that man spare no thiefe so I render it according to the words who in the manner having in his hand taken is above twelve yeers old c above eight ponce n c.r. either eight pence or twelve pence The law is full of equity this king gives a ram c. in the Preface as the Saxon worth four pence that which as Sir Henry Spelman sold heretofore for twelve pence would now be worth 20 or 40 s. in the Assise of bread long after the Saxons in the 51 of Hen. 3. eight bushels of wheat are valued but at twelve pence and although now the 12 keepes not the old rate but the modern yet things are prized in trials of life far below their worth and no man loses his life but where the thing stoln in estimate rises to more then many twelve pences That title of Cosroes amongst his others a king who hateth war may justly be given to our laws Peace the greatest blessing of this life and without which nothing else can be a blessing is everywhere provided for everywhere charged and commanded Peace is commanded to be kept in the Pallace or Hall of the king the forfeiture of the breach being the losse of all the offendor has and his life at discretion in the church the house field and town the mulct of wrangling was made 30.8 o Ll. Ina. c. 6. Ll. Alfr. c. 7. Ll Edv. sen c. 4. Ll. Etheldr c. 6 Every man was to give pledges heretofore of his good behaviour the violation of Faith so given was punished and is called breach of the peace Every breach of the peace was such violation Everymans house as the law since expresses it is to be his Castle He who infringed the freedome or liberty of the house called râ—m soone by house breaking forfeited all he had and his life was to be at the kings wil p Ll. Edm. c. 6. Grith or frithbrice were the terms for breach of the peace King Cnut in his laws first wills that Gods peace and the peace of the Church be kept then his own q Ll. Cnuti c. 12.14 and again We must provide for peace or the amendment of it most desired by dwellers and most odious to thieves r c. 8. Amongst the Prerogatives of the West Saxon kings are these breach of peace house freedom Å¿ c. 12.14 The Statute called Westm the first speaks Let the peace of the Land be maintained in all points The first of R. 2. Let the peace be well and surely kept c. according to the Law of the Land In the title of the Statutes of the 50 of Ed. 3. are these words To the honour of God and of holy Church and quietnesse of the people Which used to be the title of Parliaments t â— Inst 9. The Statute of Hen. the 7. concerning Justices of peace has That the subjecti may live in surety uner his peace in their bodies and goods Inprimis interest reipub ut pax observetaer is a mixime of the Common Law affirmed by Parliament u 2. Inst 158. In all Actions for any thing done against a Statute law where the words vi armis are left out yet the Writ has contra pacem against the peace w r. 9.50 Every affraying as Mr. Lambard or putting in fear is breach of the peace The laws do not onely make orders for the maintenance of the peace but as to the execution of the charge have appointed general and particular Officers and Ministers to manage this part and to undergo this care The Lord Chancellour Lord High Steward of England Lord Marshal c. Justices of the kings Bench says Mr. Lambard had authority inclosed in their Offices for the conservation of the peace all England over The Justices of the Common pleas are said to be conservators onely in special places The Master of the Rolles was a general conservator by prescription Coroners and Sheriffs are to be conservators within their Counties Justices of the peace instead of the ancient conservators antiquated are especially warders of the peace so are Tithing men Borougheads Constables and petty Constables in their limits As the first of Ed. 3. x 1. E. 3. c. 15.4 E. 3. c. 2. In every County good men and lawful that been no maintainers of evil nor barretours in the Country shall be assigned to be Justices of the peace As the 18 of that king Two or three of the most substantial men with other learned in the Law as the 34. A Lord with three or feur of the most substantial c. By a Statute of King Henry the 6. The Justice must have Lands and Tenements to the value of xx l. by the yeer he is to be sworn duly and without favour to keep 13. R. 2. c. 7 and put in execution all the Statutes and Ordinances touching his Office As by the Iaws of all Nations civil Religion and the Priesthood have their priviledges and honour so no laws ever favoured piety and the Church more then these and this fully and so often that if it be made by any an objection of prejudice it cannot be denied it must be confessed by all hands Those of the Roman new creed have in every age very clamorously and furiously slandered our Laws not onely as short and imperfect but as unjust to be detested by all the faithfull y Becket in Ma. Par. 101. Such as without a saving the honour of God and of holy Church z Hoved. Savil. 492. are not to be sworn to against the faith as the Bishop of Rochester may be thought to mean a Graft 1187. The exemption of the Clergie taken away by the Laws of Clarendon where yet only the old Laws were restored was thought as legal an impiety as heinous as could be yet Bellarmine though a man more nimble then ten thousand Beckets durst not make it of Divine Right Jure Divine valde conforme is as much as he thinks it is Not of Divine Right that were too high not of Humane that were as much too low but very conformable to Divine Right which is a ridiculous conforformity and makes it neither the one nor the other Within five years in the time of King Henry the 2. there were above one hundred murthers committed in England by Priests and men within Orders so that it was time to take heed of these
Hist Savil Edit 907. Sometimes the Chief Justice is called Warden of the Realm Vice Lord of England and Justice of England as the Alderman of England was most Honourable in the Saxon times So was the Justice after which was the same from the first time the word is heard of till Henry the third if we except Hugh of Bocland and Ranulphe of Glanville we shall not finde one of these Justices but he was a Bishop a Peere or at least of the Nobility of one of the illustrious families Aubreye of Ver Earle of Guisnes high Chamberlain of England Justice and as some Portgrave of London father of Aubreye of Ver the first Earl of Oxford which familie so Mr. Cambden justly is the most antient fundatissima familia amongst the English Earles as Matt. Paris was ready in the variety of causes exercised in them a In Sitph reg And of Geofrey Fitzpeter Then dyed Geofry Fitzpeter Earle of Essex and Justice of great power and authority a generous man skilful in the lawes allyed either by blood or friendship to all the great men or Barons of England b Id. in Johrege Henry after king son of Henry the second was chiefe Justice of England By the Statute of 31 of Hen. the 8. c c. 10. which ranks the publique great Officers The Lord Chancellour or Lord Keeper is the first man The great Chamberlain of England Constable Marshal and Amiral are to sit below him the Justices are accounted Peers and fellows of Peers Magna Charta sayes No free man shall be amerced but by his Peers and according to the manner of his offence It is observed As to the amercement of an Earle Baron or Bishop for the Parity of those who should amerce them when this Charter was made that the Justices and Barons of the Exchequer were sufficient Bracton as the most learned Mr. Selden cites him sayes Earles or Barons are not to be amerced but by their Peeres and according to the manner of their offence as the Statute is and this by the Barons of the Exchequer or before the king d 1. H. 6 7 v. D. Spelmver he Baron Scaccer All Judges sayes the same Mr Selden were held antiently as Barons which appears in an old law of Henry the first which is Regis Judices sint Barones Comitatus qui liberas in eis terras habent per quos debent causae singulorum alterna prosecutione tractari Villani vero Cotseti vel Ferdingi Cocseti vel Perdingi in legibus nuper editis sed perperam vel qui sunt viles inopes personae non sunt inter Judices numerandi e c. 29. The Barons of Counties who had free lands in them were to be Judges not common base fellows hence as Mr. Selden again are the Iudges of the Exchequer called Barons The black book of the Exchequer makes it manifest the Judges of the Exchequer before Hen. 3. or Edw. the 1. for thereabouts the Exchequer had its ordidinary and perpetual Barons were of the Baronage by these words f part 1. c. 4 There sits the chief Iustice of our Lord the King first after the King c. and the great men or Barons of the Realm most familiarly assistants in the kings secrets By the decree of king Iames g 28. Mai. 10. Jac. reg The Chancelour and under Treasurer of the Exchequer Chancelour of the Duchie chiefe Justices Master of the Rolles chiefe Baron of the Exchequer all the other Judges and Barons are to have precedency of place before the younger sons of Viscounts and Barons and before all Baronets c. there the degree of the Coif is called an honourable order the Serjeant is called by Writ The words used to be we have ordained you to the state and degree of a Serjeant at Law Vos and Vobis in election of Serjeants and summons of Judges to Parliament ever applyed to persons of quality are used One Statute speaks where he taketh the same State upon him h 8 H. 6. c. 10. And another At the Creation of the Serjeants of the Law i 8 E. 4. â— 2. Which is observed ever to be applyed to dignity k Rep. 10. Epist The Patrons of causes called pleading advocates and Narratores Counters of the Bench or Prolocutors of old as Paris l Hist 516. vit Abb. 142. all Lawyers were antiently of the Clergie And those now who are so curious for neatnesse of that order may thank their predecessours for that rudenesse which is so unpardonable by them in the Latine of the Law No Clerk but he was a Lawyer saies Malmesbury in * Lib. 4. Ed. 1. Savil. 123. William the second we read that Mr. Ambrose the Clerke of Abbot Robert of St. Albanes most skilful in the law an Italian by Nation amongst the first of the lawyers of England for time knowledge and manners is sent to Rome m Vitae Abb. St. Alb. 74. Adam of Linley is said to be Abbot John the 1. his Counsellor in all his weighty affaires a curteous man honest and skilful in the lawes n Ibid. after Archdeacon of Ely for most of them held Church-livings he was after speciall Counsellour and Clerk saies this this Monke to the Archbishop of Canterbury Stephane John Mansel of whom we read so much in the History of Hen. the 3. is called the Kings speciall Councellour and Clerk as much as Atturney generall since o Ibid. 142 Hence it is that the ancient habit of secular Judges was the same and yet is with that of the Ecclesiasticks p D. Wats Gloss ad Paris William of Bussey Seneschal and chiefe Counsellor of William of Valentia would have losed saies the same Monk the staies of his Coife to shew his Clerkly tonsure his shaven crown q 984 985 Hist And again he sayes The Clerks who such Writs dictate write signe and give counsell r 206. Aâ—â—it They are restrained by Pope Innocent the 4. his Decretales who forbid any such to be assumed to Church dignities c. unlesse he be learned in other liberall Sciences Philosophy and Divinity were laid by as the words there the multitude of clerks ran to the hearing of secular laws Å¿ ibid. 190.101 Hugh of Paâ—shul clerk is made justice of England by Hen. the 3 t Hist 405 So was the famous John Mansel before Keeper of the great Seale There have been seven Wardens of the Kingdome or Viceroyes of the Clergy twelve great chiefe Justices neere 160 times have Clergy men been Chancellours about 80. of them Treasurers of England all the Keepers of the privy Scale of old the Masters of the Rolls till the 26. of King Hen. the 8. the Justices of Eire of Assise till Edw. the third were of that order u D. Spel. Epist ad concâ—l men whom the Lawes were beholding to w 1 Inst â—ect 524. rep 5. Câ—wd 2. Just 265. else they had been told
Colonie of the German Saxons so are their lawes full of their and our Customes agreeing together in many things yet k Dn. Spel. gloss 440. When Austin the Monk was sent hither by Gregory the great to convert the Saxons in the yeer 597. Not one hundred and fifty yeers after the entrance of the Saxons he was commanded by him to take interpreters with him out of France in his way l Bede l. 1.25 and it was unlikely while the Saxons yet kept the language of their Countrimen they should have forgot their Customes contrary to the manner of all the other Tribes of that Nation The first Saxon lawes writ by them after their Conquest are those of Ethelbert of Kent the first Christian and Monarch then which says Venerable Bede amongst the other good deeds he did his people set constitutions of right judgements according to the example of the Romans with the Counsel or advice of his wise men Mid srotera geþeat Which he commanded to be writ in English and which are held says he of his time long after Aetbelbert to this day m l. 2. c. 5. These were short and rude like the age Next are those of Ine the West-Saxon those of Offa the Mercian Kings of Alfred King of England founder so Ingulphus of the English policie and order ever since observed called by the book of Ramsie The renowned King Alfred founder of the English Laws Who is first said by Master Lombard and others of the greatest name to have divided this land into Shires Hundreds and Tithings c. to establish jurisdiction in every of them n Archaolog 15. again it is said he gave not onely lawes but Magistrates Shires Hundreds c. which so one place speaks we have often observed o Gloss tit Ll. Angl. Iugulph Though no man can honour the sacred memory of this most glorious Prince more then my self and I know viros magnos sequi est pena sapere yet I cannot believe this Malmesbury speaks onely of the Hundreds and Tythings the invention of which he attributes to this King p de Gest reg c. 4. He might which the Glossary is once contented with review the Lawes of Aethelbert Ina and Offa transcribe and insert whatsoever was worthy into his lawes and impose them upon the Angles the English generally as the Danes submitted to him in which name the Jutes and Saxons were included he might adde much and polish what he found being never idle ever imployed for the good of his people either in his Courts and Councels of State or in the head of his Army But he that looks upon the lawes of King Ine will find enough to assure him that King Alfred laid not the first stones of the Government which by whomsoever laid were laid before King Alfreds great Grandfather was born there being neer 200 yeers betwixt these two kings q Fasti Savil Not to recite the lawes upon offences we read in the lawes of King Ine of the Shire the Alderman and the Kings Alderman One law speaks thus If any man shall let a thief escape or hide the theft c. If he be an Alderman þolige hisscire he shall forfeit his Shire c r Ll. Ina c. 36. Another If any man shall demand Justice or right before the Shireman the Earle or other Judge Å¿ c. 8. v.c. 6.51 c. The Proaeme mid eallum minum ealder mannum and with all my Aldermen the chapter of breach of the peace In the Kings Town Aldermans Town Kings Thames Town c. t c. 46. Thorold a Benefactor to Crowland Abby long before King Alfred in two old Charters is called by King Kenulph Vice Comes Lincoln and by King Withlaf quondam Vic. Com. Lincoln sometimes Sheriffe of Lincoln u Concil Sax 3â—8 Ingulph 854.857 Venerable Bede who flourished in the time of King Ina tells us in the days of King Edwin King of the Northan hymbres Paulinus the first Archbishop of Yorke converted to the Faith Blecca with his family Line cole ere szre geÆ¿efan w Bede l. â— c. 16. l. 5. c. 4. p. 375. The Gerefe of Lincoln and elsewhere says he Hanwald the gesiþ a word rendred comes with his geref w th his Sheriffe Aethelwine betrayed King Oswine x l 3. c. 14. l. 4.22 l. 5. c. 4 5. Hundreds and Tythings are not named in the Lawes of the Kings Ina or Aelfred In King Ina's Laws pledges borgas are named by which probably we may think Tythings to have been then One Law wills if the geneat the husbandman as now we speak steal and run away that the Lord pay the angild the price c. if he have no pledges y Ll. Ina. c. 21. Ll Edg c. 6. Cnati 19.27.35 After the laws of King Aelfred those of Edward the Elder of Aethelstone Edmund Edgar Aetheldred and of Cnut the Dane succeeded all which were distinguished and ranked under three heads The first of the Weft-Saxons under whom as united and submitted were comprised the Saxons generally caled Æ¿estseaxna laga the West Saxon Law The second of the Mercians or Angles called Myrcna laga the Mercian law the best and most select of which King Aelfred as before took into his laws not rashly as he says in his Preface He durst not as his words are because he knew not what the next age would like set forth much of his own What he did still as he pleased his wife men w Praefat. in Ll. Alf. those of his Counsel The Ãeâ—elaga was the last of these called the Danes law of all which we may say as is observed out of Ovid. Facies non omnibus una Nec diversa tamen qualem dicet esse sororum Yet King Cnut as much resemblance as there was lik't it not out of all these laws he composed one Common Law which King Edward the Confessor observed z Malmesb de gest reg l. 2. c. 11 â— See here ch 3. His title says The laws of St. Edward begin quas in Anglia tenuit which he held Edward the third before the Conquest as one set forth one Common Law called the lawes of Edward to this day a Ranulph cester l. 1. c. 550. Hov. 600. Ll. Ed c. 35. in Hoved. which because they were just and honest as the Paraphraste upon the Laws of St. Edward he recalled from the deep abysse and delivered to be kept as his own As another he was the lawful restorer of the English laws b Gemetic l. 6. c 9. all this may be he restoâ—ed them and recalled them from the deep Abysse they might be forgotten dedicated as the Paraphrast speaks to oblivion wholly but not as he addes from the time of King Edgar in the reigns of Harold the first and Hardicnut Besides restoring and addition he commanded this law should be kept as his own and being a king of the Saxon blood and falling last upon the work it is
must needs then be The Hundred which was ten tythings a Germanie Institution q Gapit Car. Calui apud siluacum where every man was bound to attend in the North called Wapentake then the Trything Thryhing or Leet the Jurisdiction of which extended over the third part of a Province containing three or four Hundreds r Ll. Ed. c. 34. The County Court called gerefas gemot the Sheriffs gemot or Court to be held by the Institution of King Edward the elder every fourth weeke where the Sheriff was to decide civill and prediall causes and every sfraec as there plea was to have an end at the day Å¿ Ll. Ed. sen c. 11. The supreme Provinciall Court was the Sciregemot or Shire Court the same which now we call the Sheriffs turne kept twice the yeare where the Thanes or Noblesse were bound with the Freeholders to be present the Bishop was Judge for Church-matters and the Alderman of whom below for things secular here was the Assembly of all the Hundreds t Ll. Eadg c. 5. ll Aethelst m. s c. 20. Il. Cnuti c. 7 â— p. 2. here Causes Civill and Criminall were determined This Court and its Jurisdiction was very ancient being famous and used in the same manner amongst the Franks and Lombards as may be seen by their lawes u Ll. Car. Lud. Im. l 4. c. 26. Car. m. Lom l. 2. tit 52. Ll. Aleman tit 36. VVilliam the first divided the Jurisdiction and confined the Bishop with his Causes Ecclesiasticall to a Court by himself which were discussed in the Hundred and Court of the Shire before which appears by that sanction of this King directed to the Earls Sheriffs and all the French and English so it speakes who have lands in the Bishopricke of Remigius Bishop of Lincolne though there onely the Hundred bee named w Not in eadm 167. yet there is added The Episcopall lawes which were not well kept nor according to precepts of holy Canons c. and as this is recited elsewhere They shall bring nothing to the Hundreds or Judgement of secular men x M. S tab Rob. Winch. Arch. Cant. in eadm 168. and every secular Court is alike forbidden to Church-men by the Canons In one or other of these Courts in the lesse or greater all causes were to be determined at mens homes and at their owne doors if the parties would rest there no man ought to sue out of the County to draw his Plea from thence without good cause which might be pretended then and in every remove ought really to be now as appears by the Tolt Pone Accedas ad Guriam and Recordare This good cause was if the Suitor could not have Justice at home or what he had was rigour and summum jus then might appeales be to the Palace to the King there whose Court is called the High Court of Justice for law and equity y Ll. Aelfr c. 38. Ll. Edg. c. 2.11 Cnuti c. 16. after the manner of the ancient Jewish Commonwealth a course observed sayes the most knowing Knight all Europe ore z Gloss tit Cancellaria Our antient Kings as he swore before the Realm and the Priesthood right Judgement to doe in the Realme and Justice to keep by counsell of the Peers of the Realme a Ll. Edu Con. c. 16. viz. In this Court every City and Borough had their Courts the Burgmote kept thrice the yeere the Wardmote the Husting the most antient and supreme Court of the City of London is of Saxon extract which every Munday used to be held now on Tuesday yet does the stile still say held on Munday Lincolne Winchester Yorke and Shepey have their Hustings it held Pleas as it does of things reall and mixt Judges there were too in the manner we finde after the Normans who changed only their name from Aldermen to Justices There was the Alderman of all England Chief Justice as Ailwin Founder of the Church of Ramsey was called upon his Tomb The Kings Alderman as the most knowing Knight thinks b Gloss tit Aldermannus like the Missi c In Capit Gar. m. Franc. ll as our Justices in Eire or of Assize The Alderman of the County Iesse then the Earle but equall with the Bishop which three sate together in the County the Earle was to take care of the Commonwealth the Bishop of the Church the Alderman of the County to declare and expound the law c Gloss ibid. Besides as to execution of publike Justice upon the contumacious he might which our Posse of the County resembles use force raise the people This difference is plaine in that law of King Aethelstane Be Æ¿erum of the estimation of heads d P. 55. part 2 ll v. ll Jnae c. 8 Faedus Regum Aeâ—fr Gath. m. s in gless citant where the were gild or price of an Archbishop and an Earls life who are joyned as equall is fifteen thousand thâ—imsa of a Bishops and Aldermans who next follow and are joyned but eight thousand c. Sometimes the same things are said of both the Earle and Alderman so that they may easily be thought in those places the same This was a Salic Institution to substitute thus two or three under the Earle whom they called Sagibarons as Ingulphus who is altogether for King Aelfred King divided the Governours of Provinces who before were called Vicedomini into two offices into Judges whom now we cal Justices and into Sheriffs yet he has in our Charter Bingulph a Vicedominus which Title the Justices yet in Ingulphus retained and Alferi a Sheriff e In An. 948. The Saxons had their Hold or Heretoch their Military Commander in every County Places had their Bilaga by-lawes besides the Common Law Law made by consent of Neighbours now by the Homage in a Court Baron Suiters in the Leet or view of Frankpledge in towns by the Inhabitants and Neighbours as M. Lamhard The Saxons our Ancestors retained the manner of the old Germans their owne Elders who in Tacitus Jura per pagos vieâ—sque reddehant made distribution of Justice not onely in one Towne or in the Princes Palace but also at sundry other speciall places within the Countrey and as he truly the Normans who invaded the Posterity of the same Saxons here did not so much alter the substance as the name of the Saxons order f Archâ—ion 89. But to satisfie those to whom the Normans may be as odious as their Conquest although perhaps they may be Normans themselves most likely descended by some Mother from them and may seem as fond as if now at Millaine or Pavie after so many hundred yeares they would indeavour to distinguish the Lombard and Insubrian the Insubrian Gaule from the Italian in France the Gaule and German-Franke in Spaine the Carpetane and Wisigoth I say to satisfie them I will prove by the testimony of those who lived then when this Norman change is imagined
to be that there was no such overturning of things as is believed The Title of the Lawes called the Lawes of King William the first published by M. Selden with his learned Notes upon Eadmer and since with the Saxon Lawes is this These are the Lawes and Customes which William the King granted to the whole people of England after the Conquest of the Land these were those which the King Edward his Cousen beld before him In these Lawes recited by Hoveden in the life of King Henry the second ' King Edwards Lawes are confirmed in these words This we command That all men have and hold the Law of Edward the King in all things together with those Lawes which we have added for the profit of the English g Pars Poster 661. This Confirmation was not freely given but in this manner King William having heard the Lawes of the Danes and Normans and approved them as the Chronicle of Lichfield having approved the Lawes of those of Norfolke Suffolke Grantbridge and Deira c. he commanded they should be observed through the Kingdome as more just then any others because himselfe and his Barons were Norwegians by extraction not a word is there of any resolution to introduce his Norman Laws this the English thought a more killing blow then that of his Victory they beseech him and by the soule of King Edward c. to permit them to injoy their owne ancient Laws and Customes under which their Fathers lived themselves were borne and bred up to wit the Lawes of holy King Edward and they tell him it could not but be very hard to receive Lawes unknowne and to judge of those things they understood not h The Paraphrast of these Laws Chron. Lich. The King long resolute at last yeelds and as these with much authority were venerate and through the whole Realme corroborate and before other Lawes of the Realm the Lawes of King Edward not because he found them but because be restored them sayes Gemeticensis of the same age with King William i l c. 9. The Chronicle of Lichfield and Hoveden are more large with which agrees the first Chapter of the Lawes of good King Edward thus it speaks Which King William confirmed all of them use neer the same expressions By Precept of King William say they are elected out of every of the Counties of all England twelve of the most wise men who were injoyned before King William that in what they might neither declining to the right hand nor the left in a direct way they should lay open the Constitutions of their Laws and Customes nothing omitting nothing adding nothing out of prevarication changing k Hoved. 601 Chron. Lâ—ch ll Ed. c. â— Further yet in that Chronicle Aldred the Archbishop of Yorke not Thomas Archbishop of Canterbury as the Paraphrast would have it there being no Thomas of that See till lawlesse Beckets dayes who as this and Malmesbury crowned him l Malmsâ— l. 3. 〈◊〉 vita Pontific and Hugh Bishop of London by command of the king writ with their own hands what the foresaid jurates said from the laws of holy mother the Church beginning c. Ingulphus Secretary to William in Normandy and after made Abbot of Crowland by him is witnesse enough alone and as he I brought this time with me from London where he had been about the businesse of his house to my Monastery the laws of the most just king Edward which my Lord William the renowned king of England had proclaimed authentick and perpetual all England over to be kept under most grievous penalties commended to his Iustices in the same tongue they were set forth m Ingulph p. ult This proclamation was not all to allay the stormes which perhaps the violation of these laws had raised for the good of peace says an ancient Monk He swears upon all the reliques of the Church of S. Albane touching the hol Gospel Abot Fretherick ministring the Oath the good and approved ancient laws of the realm which the holy and pious Kings of England his ancestors and especially King Edward set forth inviolably to keep n Vita Ab. S. Aâ—b 8. s â—0 that the English laws were in use then I can prove out of that famous plea of Pinnendeâ—e betwixt Lanfranck Archbishop of Canterbury and Odo Bishop of Baieux and Earl of Kent there it is said the King comanded al the County without delay to sit all the French of the County especially the English in the antient laws customes skilled to assemble o Not. ad Eâ—d 198. William the 2. promises onely easie laws justice equity and mercy and laws desirable p Hunting l. 7.372 ead 13. Ma Par. 14 Heved in h. 1. which his successour Henry the first construes and there could be no other meaning to be meant of these laws he swears To take away all the injustices and oppressions of his brother promises the good and holy laws to keep and to strengthen the liberties and ancient customes which flourished in the realm in the time of S. Edward the King q Ead. 55. Malmsb. in Hen. 1.156 Ma. Pa. 55. and in his laws he says The law of King Edw. I grant you with those amendments made by my father with the counsel of his Barons r Ll. Hen 1. c. 2. Ma. Pa. 56. and in the same place those things which hence forward shall be done shall be amended secundum lagam according to the law of King Edward yet after he imposes a new law a medley out of the salick ripuarian and other forreign laws with some pieces out of King Cnuts Danish laws which were but a small time observed and could not take any thing from the lawes of King Edward king Stephen confirms the laws in these words all the liberties and good laws which Henry King of England my Vnkle granted them and I grant them all the good laws and good customes which they enjoyed in the reign of King Edward s Ex lib. autiqu Ll. The Londoners request of Maetildis the Empresse daughter of Hen. the 1. That they may be suffered to use the laws of Edward because as they they were the best and not the laws of her father Henry because they were grievous which she refused whence great commotions were made t Florent wig in an 11 42. cont which grievous laws certainly were that salic rapuarian Danish medly and likely enough a commotion in those boisterous times would follow the refusal many of the disquiets and tumults of those first reigns being raised upon the pretence of the breach of these laws a pretence so taking that the Noâ—mans themselves either coloured their insurrections with it or else preferred these before their own laws and ran the hazard of their lives fortune in earnest for them Henry the 2. commanded the laws of his Grandfather to be observed u Hov p. pricr in H. 2. of which below
of Geolph sonne of Malt in Halington four Oxganges of land of Jnland which the Margent once corrects by Luland for Juland both which make it non-sense there is added and ten Oxganges in service The words Mannor Mansions Teuements Marshes common of Pasture of all Beasts are frequently met with in the antient Grants made by the Mercian and West Saxon Kings to the Monastery of Crowland f Inulphus Savil 859 864 881. with the termes acres hides Carues Oxeganges Yardlands Firmes Rents c. many of those Mannours had their Royalties or huge Priviledges as Ingulphus calls them annexed both of Jurisdiction in some parts lessened since and profit King Edgars Chatter this Monastery describes and grants them I grant and confirme sayes he c. free from all secular charge and that they have all the free Customes with all that which is called Soc Sac Tol and Team Infangthef Weife and Streye g Id. 881. amongst which Sac in the Halmot since Court Baron was common to all Mannors In the great Plea of Pennedene of which before the Archbishop is said to darrein all the Liberties and Customes of his Church Soca Saca Tol Team Flymena Fyrmthe for Flymen firm Grithbrice Forsteal Haunfare for Heinfare and Infangennetheof h Not. in Ead. 196. most of which are now worne out unknowne in these base Courts yet I will say something of them not that I pretend to give full satisfaction being in some of them unsatisfied my selfe as they are upon whom I relye for Soca D. Cowell cites S. Edwards Lawes i c. 23. He sayes some will have it an Inquest as if it were seek some Suit of Court others an exemption of the Tenents from any publike duties without the Mannor or Liberty called still soke soon socne is in Saxon liberty * Ll. Cnuti c. 69 4. free Jurisdiction frithsocne is a sanctuary a liberty of peace k Ll. Eccles r. Cnuti c. 2 In the lives of the Abbots of S. Alhanes we read with all the lands which William Chamberlaine or the Chamberlain held in the Soke of Luiton l 69. it is the Liberty or Jurisdiction of the Lordship within which the Lord may hold his Court to which the Tenants ought to resort to doe their Suit and out of which they are not to be drawne Sac is conusance of Pleas Tol is said to be a liberty to buy and sell within the Mannour m Ll. Edu c. 24. more likely some duty paid to the Lord upon such sales Team in other Saxon out of the Lawes is progenie by some made a power to have and and dispose of villains and their race it is so I gather from the Saxon laws cognizance in a Court-Baron of things claimed stollen where he in whose hands the goods were found might vouch his Vendor and he over till the Thiefe was discovered if hee were teames ƿyrþe as King Cnuts Lawes speak if he deserved the right as having bought before legall witnesses otherwise not and he was to pay the penalty imposed at the third Voucher the Owner is to have his goods the team was to be in the place where the goods were found no man was bound fylgean team to follow it I know not whether timþ is used in the Laws of Ine for vouch getiman in those of Aelfred for the Voucher as geteaman in those of King Edward the elder and King Aetheldred timan and teaman to vouch team for vouching tymoe he hath vouched in Aethelstanes Lawes tyman team in those of Aetheldred team teames tyme in Cnuts in the same sense n Ll Ina l. 74. Alfr. 4. Edv. sen 2. Aethelft 24 Aetheld 9 10. Cnuti 21 22. Edv 3.25 the other terms may be rendred by Mulct of sustaining Fugitives or Out-lawes of breach of the peace forestalling departing of a Servant Tryall of a Thiefe taken within the Jurisdiction There were Parks in the Saxon times which though it be a digression I thought fit to observe this appears by the word Deorfald Deerfold and by the Doomesday where they are are called Parcisylvatici bestiarum Wood Parks of Beasts Forrests too here are as antient called Bucholt and Buchurst is the same holt and hurst both signifying a Wood. King Cnut in his Lawes o c. 77. v. manne Ferest D Sp. gloss verb. Forresta gives any man leave to hunt in his owne Woods or Fields forbidding onely to meddle with the Kings Venison in the places of freedom other Forrest lawes were after set forth by the same Cnut one of which in the thirty chap. gives leave to hunt but not so generaly it names not woods If the Saxon original were as narrow which no man now knowes yet I see not why these laws should be suspected for it as they are p 4. Inst where this chapter is thought to be a prohibition to hunt which it is not It agrees with the law before men were to avoid the kings game not wheresoever according to the word but wheresoever he will have it according to the other law gefƿiþod priviledged free What the Thane was and how he held his Lands and Lordships I will next enquire The word Thane Thegen thein thegne we finde theowan too and all these ways it is written is used sometimes indifferently in some places meerly for the kings servants meerly for a servant as in Doomesday Cola the bunter Vluiet the hunter Godwin the Falconer c. and in a Saxon Sermon q In Beda 〈…〉 382 The Queen of Seba tells Soloman blessed are thy servants theguas and theowan the Apostles are called thenes r Bede 483. yet in other places it may be observed directly and properly restrained to intended of a Thane holding Taine Land though he might in some honourable way or other serve the king too Such might he be in Bede whom as the fable speaks no bonds could hold when his brother was at Masse praying for his soule as supposing him slain in the battel with Elwin king Egfreds brother who feared to confesse that he was the kings Thegne but said he was a folelic man and again those that were with him saw by his face and carriage that he was not one of the poor folk but that he was of noble race ſ Bede l. 4. c. 22. and being questioned answered he was the Kings Thegne There is the Kings Thane the ðeoden mean or under Thane The first the Kings Baron the other the Lord of a Mannor t v. ll reg Cnuti c. 69. as a most learned Antiquary Neither were there with them the Saxons any other created titles after the Prince or Etheling honorary it seems but this of Earle and their Thanes according to the Charter of the Confessor for the Lands of St. Pauls Church there which runs thus Edward king Gret mine Bisceops and mine Forles and alle mine Thegnes ou Thau shiren wher mine Prestes in Paulus Minister habband Land u D. Seld. tit Hon. He acknowledges there were
the feudal honorary ninrges Ãegne Kings Thane who held of the K. in chief that his land only was honorary Taineland that he held by service of personal attendance by service of an Office or military attendance he maks the ðeoden Medmera Ãegne or under Thane to be feudal too * Which sein Concil Sax. 406. Now in print and the same with a Vavassour out of the M S. of Athelstanes laws sometimes at the Library of St. James he cites Si Ceorlman prove batur ut habeat 5. hidos terrae ad ut Waram which should be utfaram expeditionem regis c. That is says he held of the King by knight service w Tit. Hon. 2. edit 622 624. In Doomesday tit Bockingham scire is Burchard Teigue 1. Baro Regis Edwardi That is Baron of King Edward Amongst the witnesses to the priviledge of King Aeiheldred granted to the Monastery of Christ Church in Ganterbury is Aethelmere the kings Discthene translated dapifer Leafric his braegel thene Master of the Wardrobe Siward the kings thene a t raed of his Councel x Concil 500 501. which certainly were Thanes or Barons by the service of these places We read of those in the Saxon Cronologie who served not n ordinary lived not continually at Court * v Sax. Cron. 534 543. or neer the kings person like those in the Confessors Chatters here yet are called the Kings Thenes The words are these And in those three yeers many of the kings most choice Thenes dyed amongst which were Suithulfe Bishop of Rochester and Ceolmund Alderman or Earle in Kent and Beorhtulf Alderman amongst the West-Saxons and Wulfred Alderman in Hamptonshire and Ealheard Bishop at Dorchester and Eadulf the kings Thane amongst the South Saxons and Beornwulf the Gerefe in Winchester and Ecgulf the kings Master of the Horse his horse Thene and many other of the most noble y Cronolog Sax. 545. Which I shall make yet more cleer when I come to speak of Hereot out of the Laws of King Cnut This Law is meant of the lesse or under Thane If any Thegne which in his bockland opposite to so cland which passed without writing hath a Church and a burial place c z Ll Edg. 2 to make it more full as before is said that the policie of these Germane Nations tended much to war the very ceorlâ—â— or plowman could not under such a penalty keepe at home when an Army was to march a Lâ— Ina. c. 52. and whosoever withdrew himself from the march forfeited all he had b Concil â— Aeâ—ham c. 24. if the king were in the expedition The Doomesday says In the City of Hereford The Burger serving with his horse when he dies The King shall have his horse and armes As there Wallingford in the time of King Edward the confessor conteined 276 hages or houses rendring ten pounds of rent or gable and who remained there performed the kings service with their horses or by water We finde in the Saxons times in a gift of lands reservations of services and creation of Tenures king Aelfred at peace with Guthrun the Dane whom he wins over to the Faith gives him the Provinces of the cast Angles and Northumberland to be possessed by Foedal and hereditary right c Concil Sax. 379. Asser men vens John Pik who writ in the reign of king Henry the first says king Aelfred gave these Provinces c. Vnder fealty of the King that he might preserve that by hereditary right which he had invaded by robbery Malmesbury relates this in the same words d de gest reg l. 2. c. 4. in the Chronology we finde Here Edmund the King wasted all Cumberland and gave it to King Malcolne king of the Scots on condition that by Sea and Land he should assist him in his wars ê§ he Æ¿aere his mid Æ¿yrhta that he were his fellow in action e Cronal Sâ—x in an 945. of the first of which Harding has To whom the King gave then all Eastenglond To hold of him the Lond. Malmesbury reports in the life of King Edgar That there came to his Court Kunadie King of Scots Maleolne king of Cumberland the arch Pirate Admiral Maccuf all the kings of the Welsh Dusual Gifreth Huual Hoel Dha Jacob and Judethil whom Edgar bound to himself in a perpetual oath f l. 2. 4. c. 8. v. tit Hon. which may be called Fealty Where the same Harding recites the beneficiary Clyents or Princes who had sworne Fealty sayes Mr. * Mare claus 280. Selden to king Cnut he addes So did the Kings of Wales of high Parage And all the North-West Ocean For their Kingdomes and their Lands than There is an example of the creation of knight service here before the Normans in the lives of the Abbots of St. Albans Then sayes the Monk in the time of Abbot Leofstane and Edward the Confessor The Chilterne a small country neer the Monastery was full of Woods in which lodged divers beasts wolves not then it seems extinct bores wild bulls and deere and which were more mischievous thieves out lawes banished men and fugitives Abbot Leofstane to the profit of this Monastery granted to a certain stout knight Thurnoth and to his two comerades Waldef and Thurman the Manner of Flamsted on condition that the said knight Thurnoth with his comerades forenamed and their heirs should preserve the west parts abounding most with thievs as well from noysome beasts as theeves and answer such losse as by their neglect should happen and if common war should happen with all their diligence and power defend the Church of St. Albans which they saith he and their heirs faithfully performed till king William conquered England then that Manor was taken from them because they would not endure the Norman yoke but a certain Noble man Roger of Thony to whom that Manor fell stoutly performed that service g Vit. Ab. 46 In Doomesday is said That the Church of holy Mary of Worcester has the hundred called Oswalds hawe in which lye 300 hides of which the Bishop of that Church from the constitution of antient times has redditiones socharum regis servitium suum Which is made Socage rents and knight service 3. Rep. Praef. In an old Charter of the age of Doomesday book are these words To Edwin and all the Teigues and Drenges and to all the men of St. Cuthbert of Goldinghamshire greeting the same as Sir Hen. Spelman with Barons knights and Freeholders In Domesd tit Cestresc Of this Manour another Land fifteen men whom they called Drenches for fifteen Manors held and tit eod in Villa Wallingtone To that Manor belonged thirty four Drenches and so many Maenors they had It is cleere so the Glossary that these Drenches were a kinde of vassals but not ignoble who held by knight service one of which Drenches he conceives Edwin in Norfolk whose posterity was after called Shireburn to have been who proving
before William the first that he sided not against him and that being found true he and all those in his condition h Weentun Monum hiâ— example â—n Câ—â—ington of Sir Rob. Cotten like to lose all were confirmed in their Lands and Lordships to have and hold those are the words of the confirmation as wholly and peaceably as ever they did before the conquest By the Records of Term. Trin. 21 E. 3. Comit. Ebor Com. Northumb Rot. 191. This Drench is described thus That the foresaid Vghtred held the said lands viz. In Northumberland of our Lord the king and of his progenitors kings of England by the service of a Drench which service in the parts foresaid is such that of whomsoever he holds any thing there by such service it is held and if the Tenant dye his heire being within age the Wardship of the heir and land belongeth to the Lord of which c i D. Spelm. gloss verbâ— Dronches with the marriage Whether wardship and marriage as the Lord Cook k 4. Inst 193. no badges of servitude be of the same antiquity with king Aelfred I will not take upon me to determine the Lord Cook as also the Mirrour in the place cited by him are for the affirmative l Inst 1. p. 76.4 Inst 292. mire sect 3. graft 911. c. By a law if any man dye intestate the Lord is to have nothing but what is due by the name of Hereoâ— m Ll. Cnuâ—â— c. 68. by Mr. Lambard this is acknowledged Engish-Saxon and thought to be the same with relief one place sayes Relief or rather Herent n Not. in radwes 152 and Hereot or relief o 154. 161 id compares the Hereota to the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Hereor is a service and acknowledgement of the seigniory of another a tribute so Dr. Cowel given to the Lord amongst the Saxons for his better preparation toward the war In the Monastical institutions of king Edgar Hereot is called geÆ¿unlic gae ul a customary Cens or duty said to be given to the kings by the great men of this Country after geþtenege their death It is forbidden by this king to be given for all Abbots and Abbesses p In not ad eadm before as it seemeth not so free as here the words By the great men after their death make it quite another thing though it is called so from relief which is for the heir and never paid but where there is one q Gloss verbo Hereot The Hereot was to be reasonable and here again we shall see the ranks of the Saxon noblesse The Earls eight horses four sadled four not four Helmets four coats of maile and eight spears as many shields four swords and two hundred * Saxon â— Marks of Gold The greater Thanes the kings Thanes four horses two sadled two not two swords four spears as many shields an helmet a coat of maile and fifty marks of Gold The Medmere or under Thane one horse ready his weapon or as amongst the West Saxons his neck ransome amongst the Mercians two pounds amongst the Easâ—-Angels two pounds The Kings Thanes Hereot amongst the Danes who has free jurisdiction ðe his socne haebâ—e foure pound and if he be further knowne to the King two Horses one sadled the other not one Sword two Speares two Shields and fifty markes of gold The conclusion has not Infimae conditionis Thani as the Latin is But he that has lesse and lesse may be he two pound r Ll Conti. c 69. other Lords had their Hereot too The Lawes of Kings William which as the title were the same which King Edward obserued calles this which in these Lawes is Hereot reliefe and the Earle Kings Thegne and Underthane who are here charged as is said there are called and named Cnute Barun and Vavasour and charged much in the same manner Å¿ â— 22 23 24 v. c. 20. with little difference King Edwards Latin Lawes where any man falls in warre before his Lord by Land or else where forgives his reliefe t c. 3â— and gives his Heires his Lands and Money without diminution u ibid. I will observe a little out of those old grants and Charters which preceed the Normans by which the religious heretofore made their titles onely carefull to get and to be free where we shall finde other men were not so The confirmation of Pope Agatho of the new raised Monastery of Medeshamstede after Peterborough before the age of Charters w An. 680. Concil Sax. 164. recites the immunities It was to be in no ðeudom in no kinde of servitude neither to King Bishop nor Earle No man was to have any rent or tribute there in the Councel of Becanceld King Withered freed the Church from all difficulties of saecular servitude from feeding the King Princes Aldermen Earles from all works the greater and lesser grievances c. x Concil Becanceld Au. 694. Concil Sax. 190. Witlafe King of the Mercians in the yeare 833. confirmes to the Monastery of Crowland their Lands and Tenements thus I grant deliver and confirme those Lands and Tenements c. for a peaceable and perpetuall possession to have from me and my Heires whosoever Kings of the Mercians after me to succeed in puram Eleemosynam in perpetuall and pure frankalmoigne Libere quiete et solute or as we now use it quit and discharged from all saecular charges exactions and tributes whatsoever by what name soever y Ingulp hist Concil Sax. 328. as another place amongst many things done said Ceolnoth the Archbishop before the whole Councell of Kingston shewed That the aforesaid Kings Egbert and Aethelwulfe his Son gave to Christ-Church at Canterbury the Mannor called Mallings in South-saxon free from all secular seruice and tribute royal except these three expedition military fird or firdfare upon the Herebanne the proclamation or edict military and to repair Bridges Castles Brugbote and Burgbote z Concil 340. by some not to be released * Charta Eâ—dbaldi Mâ—lmsb de gest reg l. 1. Iâ—ae reg Glelienb Concit 228. which was not true The most learned Mr. Selden saies in England before the Normans were military fiefes the Earles and Thanes were bound to a kind of Knight service all the Lands of the Kingdom except some priviledged c. held of the Crown mediatly or immediately but saies he the expedition mulitary c. those three were not so much by reason of tenure as general subjection to occasions of the state a Tit. Hon. 1 Edit 321. likely so yet to recite the opinions of others there are that thinke this firdfare to be the same with our escuage the Charter of Kenulph An. 821. the Mercian King to Abingdon discharges all services but the expedition of twelue men with their shields cum scutis burgbote c. as the most knowing Knight In the antient Charters
intent to hurt the adversary they see not before how great it is and however are too weak of themselves were the right of their side and most plain to manage it to the best advantage It may seem strange too why the ordinary course of our Circuits should not now be sufficient why we should need quicker returns of this sun of Justice unlesse we think our selves the worst of all men and our age the most corrupt every day falling further from the piety of our forefathers and more prone to oppresse and devoure one another were there a recession from the known Law after a few of the first judgements not to go on far it may be feared there would be no small discord and contrarieties in the determinations where the Courts should be so numerous not derived from one fountaine nor judging by one rule that would be Law and right in one County which would be wrong in another and which is the greatest curse in the Law that which should be most certain would be without any certainty at all To proceed instead of Conservators of the peace at the common Law now antiquated there are Justices of peace of larger power then the Irenarchae of old appointed to take care not so much of the publique discipline and correction of manners as for the peace and security of the highwaies m Cod. Thead in rub de Irenarch l. 1. Their name shews why they were instituted They are in their sessions quarterly to heare and determine all Felonies breaches of the peace contempts and trespasses They are to suppresse riots and tumults to restore possessions forceably taken away to examine felons apprehended and brought before them To provide according to the Statutes for impotent people and maimed souldiers to punish rogues beggers forestallers and ingrossers c. to commit or bind over offenders to the Sessions or Gaole to take recognizances for the peace c. such a form saies the Lord Coke of subordinate government for tranquillity and quiet c. as no part of the Christian world hath the like if the same be duly executed n 4 Inst 170. suites There are other Coures for administration of justice of narrower jurisdiction and confined in smaller limits of some of which I have spoken before yet able to put an end so small differences and ordinary trespasses not to be prevented sometimes amongst neighbours if men would be so contented Who commonly themselves make the Courts below thin and are the causes of the troubles they seem to detest let the quarrel be as trivial as is imaginable for an Asses shadow yet as in some Countries the custome is to threaten they wil have a London proces for him the poorest clownes wil trudge to London on foot from the farthest parts of the North or West more miserably then Carriers horses and undoe themselves which is no hard matter with one journey rather then not discharge their full spight who if they return not back as merrily as they set out they may thank themselves But because delay is charged up on the Courts not onely as an heynous crime but such as must by all means be born with them inseparably inherent to them something I wil speak of that I wil make it evident that delay is more odious to the Law then to those who complaine of it and that it bred from nothing else but the corruption without We finde in the Saxon lawes not onely one which fines the Shieriffe for doubtlesse of him is the word gtrtfan there meant o V. Ll. edu sen c. 5.11 who sentences not according to right after the testimony of witnesses p ibid. Ll. c 5. but also another commanding the Shieriffe to keep his Court to have his Assembly which now we call the County Court as the words and institution of King Edward the elder every moneth And that every man may have justice and every plea an end at the day when it comes whoso omitteth this still as the Law he shall make amends c. q ibid. c. 11 like that of the twelve Tables SOL OCCASVS SVPREMA TEMPESTAS ESTO We need not wonder that suits could be so prepared or rather that so little could be in them that they could be dispatched in a day if the plainnesse of the age before noted be considered when the folcland the possession of the rural man passed without writing and the bocland not to be aliened if there were such a condition in the writing r Ll. Aelfr c. 37. in a few words No man might change any thing but in the presence of the gtrtfan or Baily or of the Masse Prieâ—t or of the Hordre or of the Lord or the soile c Å¿ Ll. Aethelst c. 10. and no man might buy beyond twenty pence but within a Town before the Portgreve other tenth man or with the Shieriffes witnesse in the Folcmote t ibid. c. 12 To look downward Magna Charta has it We sell no man nor deny or delay no man justice and right u c. 29. It is a maxime in Law Lex semper dilationes exhorret The Law alwaies as Markam eschewes delaies w 22 H 6.40 a.v. w. 1. c. 40 44 45. w. 2. c. 25. sta Glou. c. 2. The Barons of the Exchequer are commanded to doe right to all men without delaie x 20 E. 3. c. 2.28 E. 1. c. 10. they are sworn to it y 4 Jnst 109. The common Law requires often that full and speedy justice according to the words of those wâ—its be done to the parties z Na. Br. 23.182 4 Just 67. all writs of Praecipe quod reddat are That justly and without delay he render c. all Judiciall Writs are without delay c. When any Court makes delayes and will not give judgement the Writ de procedendo ad judicium lies The words of which are Because the rendring of judgement of the plea which is before you c. hath taken long delayes c. We command you that you proceed to give judgement thereupon with that speed which is according to Law and Custome When execution is denyed the Writ of execution of judgement lyes by which the Justices are commanded to canse execution to be done without delay of the judgement lately given a Na. Br. 20. v. 2. Jâ—s 270 271. There was a Court raised by Statute for redresse of delayes in the great Courts where yet the delaies are not imputed to any foul play of the Ministers of justice The words are Because diverse mischiefes have happened of that that c. the judgements have been delayed sometimes by difficulty sometimes by diverse opinion of the Judges and sometimes for some other cause it is assented c. a Prelate two Earles and two Barons henceforth at every Parliament shall be chosen which shall have Commission and power of the King to beare c. the complaints of those that will complain to
6. And again there in the Chapter of the Maletot u c. 7. The ill Toll or Charge of 40 s. upon every sack of Wool is taken away where are these words We have granted for us and our Heirs not to take c. without common consent and good will By the Statute called de Tallagio non concedendo No Tollage nor aid was to be set or levied but by common consent w 34 E. 1. All new Offices with new Fees are within this Statute x 2 Inst 533. No man is to be charged by any benevolence which is condemned by a Statute as against the Law y 1 R. 3.2 He who judges things impartially must confesse the English ever to have been the most happy and most free of all people while they enjoyed the benefit of these lawes and are likely yet to continue â—s happy under them for the time to come But as some there are as is noted who will allow no authority but their own not reason it selfe nothing without themselves so some there may be rather for a Sect then the truth more willingly following a great name then reason chusing number rather then weight and worth carryed away with authority as they call it such as will yeeld to nothing else If any such there be I will please them they shall have authority with truth weight and worth together Not that I bring in other vouchers as if I refused those or thought them not sufficient who as have shown before are the true and undoubted Judges of the lawes In the Councel at Oxford of the English and Danes held in the sixt yeere of King Cnut The English and Danes are said to agree about keeping the Laws of King Edward the first Wherefore they were commanded by King Cnut to be translated into the Latine Tongue and for the equity of them those are the words to be kept as wel in Denmark as in England z Mat. West flor Hist l. 1. 311. Wigorn. 311. Although it is said the English laws * Gloss ver Lex Dan. were silent spake not in the times of the Danes which might generally be true yet in the reigne of of this King it was otherwise as appeares by his excellent lawes of Winchester full of piety and justice a Concil saex 569. These were the famous lawes observed by King Edw. the Confessour after many of the laws of K. Aetheldred many of those of the renowned Councel of Aeaham under the same Aetheldred are amongst them In the Epistle of King Cnut writ to the English when he was coming from Rome He saies He bad vowed to govern the Realms subject to him justly and piously and judgement in all things to observe At his returne saies Malmesbury he was as good as his word For all the Laws by the ancient Kings and especially by his ancestour Aetheldred given under penalties be commanded to be observed for ever which now men swear to keep under the name of King Edward not that he ordained them but because he observed them b Malmâ—b de Gest Reg. l 2. c. 11. p. 75. How much the ancient Englishman loved and prised the Common lawes is evident by what has been before said concerning the Magna Charta and the setling them And it is more evident by the odiousnesse which subversion and the subverters of the Lawes have lain under in all ages There is a Writ in the Register as before to take the impugners of the Lawes and bring them to Newgate c Regist 64. In the complaint of the Bishops of Henry the thirds reigne against the strangers Poictouins his favourites are these words As also because the Law of the land sworn and confirmed and by excommunication strengthned this was the Magna Chaeta together with justice they confound and pervert d Ma. Pa. 396. The Earle Marshall Richard complaines of these Poictouins to this King as men who impooy themselves to the oppression of the Lawes and liberties e ibid. 384. Stephane of Segrave the chiefe Justice is charged in another place with corrupting the laws and introducing new ones f ibid. 392. The same King is told by those Bishops That if the subjects bad been governed according to justice and right judgement of the land c. those troubles had not hapned The Statute banishing the Spencers the father and son has this Article To the destruction of the great men and of the people they put out the good and fit ministers and placed others in their room false and wicked men of their Covin who would not suffer right or law to be had and They made such men Justices who were not at all conversant in the law of the land to hear and determine things Empsons indictment runs Nor having God before his eyes c. falfely deceitfully and treasonously the Law of England subverting g 4 Just 199. The Articles against Cardinal Wolsey before mentioned begin Hath by divers and sundry waies and fashions committed high and notable and grievous offences misusing altering and subverting the order of the lawes His articles are there by the introduction said to be but a few in comparison of all his enormities excesses and transgressions against the Laws These Articles were subscribed by the Dukes of Norfolk and Suffolk the Marquesses of Dorset and Exceter the Earls of Oxford Northumberland Shrewsbury the Lords Fitzwalter Rochford Darcy Mounjoye and Sandys c. all which as those others taking subversion to be so heinous an offence must needs be imagined to esteem the Lawes highly Lewis of France invited hither by the Barons in King John his time in the entrance to his new principality is made to sweare to restore to every of them the good Lawes h Ma. Pa. 282. As others to maintain ad keep the institutions of the Countrey Those who desired a stranger for their master would not be governed by new and strange laws amongst the covenants of marriage betwixt Queen Mary of England and Philip the second of Spain there is one to this effect That he the King Philip should make no invasion of State against the laws and customes of the Realm neither violate the Priviledges thereto belonging i Hollinsh p. 1118. And amongst those covenants of marriage treated betwixt Elizabeth of most happy memory and Francis Hercules of Valois Duke of Anjou the same care and warinesse is had one of the conditons is That the Duke shall change nothing in the laws but shall conserve all the customes of England k Comd. Eliz. 338. The Lord Treasurer Burleigh the Earles of Lincoln Sussex Bedford and Leicester Sir Christopher Hatton and Sir Francis Walsingham were delegates for the Queen men too wise to tie themselves and others to preserve those things which are neither worth a care nor being The Statute 28 of Edw. the 3 l An. Dom. 1363. speaks thus The good ancient Laws customes and Franchises of the said Realm The