of Letters have set down and expressed the mark or sign of the Holy Cross. Concerning Withred and a Turf of Land in Kent Camden has the same thing And King Ethelulph is said to have offered his Patent or Deed of Gift on the Altar of the holy Apostle St. Peter For a conclusion I know no reason why I may not set underneath the Verses of an old Poet wherein he hath comprised the instrument or Grant of founding an Abby which Ethelbald King of the Mercians gave to Kenulph Abbot of Crowland Verses I say but such as were made without Apollo's consent or knowledge Istum Kenulphum si quis vexaverit Anglus Rex condemno mihi cuncta catella sua Inde meis Monachis de damnis omnibus ultrà Vsque satisfaciat carcere clausus erit Adsunt ante Deum testes hujus dationis Anglorum proceres Pontificesque mei Sanctus Guthlacus Confessor Anachorita Hic jacet in cujus auribus ista loquâ—r Oret pro nobis sanctissimus iste Sacerdos Ad tumbam cujus haec mea donâ— dedi Which in Rhyme dogrel will run much after this hobling rate If any English vex this Kenulph shall I King condemn to me his Chattels all Thenceforth until my Monks he satisfie For damages in Prison he shall lye Witnesses of this Gift here in Gods fight Are English Peers and Prelates of my Right Saint Guthlac Confessor and Anchoret Lies here in whose Ears these words I speak yet May he pray for us that most holy Priest At whose Tomb these my Gifts I have addrest Thus they closed their Donations or Grants thus we our Remarks of the Saxons being now to pass to the Normans THE SECOND BOOK OF THE ENGLISH JANUS From the NORMAN Conquest to the Death of King Henry II. CHAP. I. William the Conquerour's Title He bestows Lands upon his followers and brings Bishops and Abbots under Military Service An account of the old English Laws called Merchenlage Danelage and Westsaxen-lage He is prevailed upon by the Barons to govern according to King Edward's Laws and at S. Albans takes his Oath so to do Yet some new Laws were added to those old ones WILLIAM Duke of Normandy upon pretence of a double Right both that of Blood inasmuch as Emme the Mother of Edward the Confessor was Daughter to Richard the first Duke of the Normans and withal that of Adoption having in Battel worsted Harald the Son of Godwin Earl of Kent obtain'd a large Inheritance and took possession of the Royal Government over all England After his Inauguration he liberally bestowed the Lands and Estates of the English upon his fellow-soldiers that little which remained so saith Matthew Paris he put under the yoke of a perpetual servitude Upon which account some while since the coming in of the Normans there was not in England except the King himself any one who held Land by right of Free-hold as they term it since in sooth one may well call all others to a man only Lords in trust of what they had as those who by swearing fealty and doing homage did perpetually own and acknowledge a Superior Lord of whom they held and by whom they were invested into their Estates All Bishopricks and Abbacies which held Baronies and so far forth had freedom from all Secular service the fore-cited Matthew is my Author he brought them under Military service enrolling every Bishoprick and Abbacy according to his own pleasure how many Souldiers he would have each of them find him and his Successors in time of Hostility or War Having thus according to this model ordered the Agrarian Law for the division and settlement of Lands he resolved to govern his Subjects we have it from Gervase of Tilbury by Laws and Ordinances in writing to which purpose he proposed also the English Laws according to their Tripartite or threefold distinction that is to say Merchenlage Danlage and Westsaxenlage Merchenlage that is the Law of the Mercians which was in force in the Counties of Glocester Worcester Hereford Warwick Oxford Chester Salop and Stafford Danlage that is the Law of the Danes which bore sway in Yorkshire Derby Nottingham Leicester Lincoln Northampton Bedford Buckingham Hertford Essex Middlesex Norfolk Suffolk Cambridge Huntingdon Westsaxenlage that is the Law of the West-Saxons to which all the rest of the thirty two Counties which are all that Malmesbury reckons up in Ethelred's time did belong to wit Kent Sussex Surrey Berks Southampton Winton Somerset Dorset and Devon Some of these English Laws he disliked and laid aside others he approved of and added to them some from beyond Sea out of Neustria he means Normandy which they did of old term Neustria corruptly instead of Westrich as being the more Western Kingdom of the Franks and given by Charles the Simple to Rollo for his Daughter Gilla her portion such of them as seemed most effectual for the preserving of the Kingdoms peace This saith he of Tilbury Now this is no rare thing among Writers for them to devise that William the Conqueror brought in as it were a clear new face of Laws to all intents and purposes 'T is true this must be acknowledg'd that he did make some new ones part whereof you may see in Lambard's Archaeonomia and part of them here subjoyned but so however that they take their denomination from the English rather than from the Normans although one may truly say according to what Lawyers dispute that the English Empire and Government was overthrown by him That he did more especially affect the Laws of the Danes which were not much unlike to those of the Norwegians to whom William was by his Grand-father allied in blood I read in the Annals of Roger Hoveden And that he openly declared that he would rule by them at hearing of which all the great men of the Countrey who had enacted the English Laws were presently struck into dumps and did unanimously petition him That he would permit them to have their own Laws and ancient Customs in which their Fathers had lived and they themselves had been born and bred up in forasmuch as it would be very hard for them to take up Laws that they knew not and to give judgement according to them But the King appearing unwilling and uneasie to be moved they at length prosecuted their purpose beseeching him that for the Soul of King Edward who had after his death given up the Crown and Kingdom to him and whose the Laws were and not any others that were strangers he would hearken to them and grant that they might continue under their own Countrey Laws Whereupon calling a Council he did at the last yield to the request of the Barons From that day forward therefore the Laws of King Edward which had before been made and appointed by his Grand-father Adgar seeing their authority were before the rest of the Laws of the Countrey respected confirmed and observed all over England But what then Doth it follow that
before the first Parliament under King James has been made against those Swill-bowls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Swabbers of drunken Feasts and lusty Rowers In full brimm'd Rummers that do ply their Dars who by their carowses tipling up Nestor's years as if they were celebrating the Goddess Anna Perenna do at the same time drink others Healths and mischief and spoil their own and the Publick 39. There was no choice of Prelates these are the words of Ingulph again that was merely free and canonical but the Court conferred all Dignities as well of Bishops as of Abbots by the Kings Ring and Staff according to his good pleasure The Election or choice was in the Clergy and the Monks but they desired him whom they had chosen of the King Edmund in King Ethelred's time was after this manner made Bishop of the Holy Island on the Coast of Northumberland And King Edgar in his Patent which he signed to the Abby of Glastenbury retained to himself and his Heirs the power of bestowing the Pastoral Staff to the Brother Elect. 40. To as many as King Knute retained with him in England to wit to the Danes for by their hands also was the Scepter of this Kingdom managed it was granted that they should have a firm peace all over so that if any of the English killed any of those men whom the King had brought along with him if he could not clear himself by the Judgment of God that is by Ordeal to wit by water and burning hot iron Justice should be done upon him But if he run away and could not be taken there should be paid for him sixty six marks and they were gathered in the Village where the Party was slain and therefore because they had not the murderer forth coming and if in such Village by reason of their poverty they could not be gathered then they should be gathered in the Hundred to be paid into the Kings Treasure In this manner writes Henry Bracton who observes that hence the business of Englishshire came into fashion in the Inquests of murder 41. Hand-Writings i.e. Patents and Grants till Edward the Confessors time were confirmed by the subscriptions of faithful Persons presâ—nt a thing practised too among the Britans in King Arthur's time as John Price informs us out of a very ancient Book of the Church of Landaff Those subscriptions were accompanied with Golden Crosses and other sacred Seals or like stamps 42. King Harald made a Law that whosoever of the Welch should be found with a Weapon about him without the bound which he had set them to wit Offa's dike he should have his Right Hand cut off by the Kings Officers This dike our Chorographer tells us was cut by Offa King of the Mercians and drawn along from the mouth of the River Dee to the mouth of the River Wye for about eighty miles in length on purpose to keep the English and Welch asunder CHAP. XXV The Royal Consorts great Priviledge of Granting Felons Estates forfeited to the King Estates granted by the King with three Exceptions of Expedition Bridge and Castle The Ceremony of the Kings presenting a Turf at the Altar of that Church to which he gave Land Such a Grant of King Ethelbald comprized in old Verse THe Donations or Grants of the Royal Consort though not by the Kings Authority contrary to what the Priviledge of any other Wife is were ratified also in that Age as they were by the Roman Law Which by the Patent of Aethelswith Wife to Burghred King of the Mercians granted to Cuthwuls in the year 868. hath been long since made out by Sir Edward Coke Lord Chief Justice of the Common Pleas Where also King Ethelred's ancient Charter proves that the Estates of Felons those I mean who concern themselves in Burglaries and Robberies are forfeited to the King Having already mentioned those Hand-writings or Grants which are from one hand and t'other conveyances of Tenure the fewel of quarrels I have a mind over and above what has been said to set down also these Remarks as being to our purpose and taken from the Saxons As for instance that those are most frequent whereby Estates are conveyed to be held with the best and fairest right yet most commonly these three things excepted to wit Expedition Repairing of Bridges and Building of Castles And that those to whom the Grants were made were very seldom acquitted upon this account These three exceptions are noted by the term of a three-knotted necessity in an old Charter wherein King Cedwalla granted to Wilfrid the first Bishop of Shelsey in Sussex the Village of Paganham in the said County For though in the Grants of King Ethelulph the Church be free says Ingulph and there be a concession of all things for the release of our Souls and pardon of our sins to serve God alone without Expedition and building of Bridge and fortifying of Castle to the intent that the Clergy might wholly attend Divine Service Yet in that publick debate of Parliament in the Reign of Henry the third concerning the ancient State Freedom and Government of the English Church and concerning the hourly exactions of the Pope and the Leeches Jugglers and Decoys of Rome that strolled up and down the Country to pick Peoples Pockets to the great prejudice of the Common-wealth they did indeed stand for the priviledge of the Church and produced as Witnesses thereof the Instruments and Grants of Kings who nevertheless were not so much inclined to countenance that liberty of the Church but that as Matthew Paris observes They always reserved to themselves for the publick advantage of the Kingdom three things to wit Expedition and the repairing or making up of Bridge or Castle that by them they might withstand the incursions of the Enemy And King Eâ—helbald hath this form I grant that all the Monasteries and Churches of my Kingdom be discharged from publick Customs or Taxes Works or Services and Burdens or Payments or Attendances unless it be the building and repairing of Castles or Bridges which cannot be released to any one I take no notice how King Ethelred the twelfth perhaps but by no means the fifteenth wherein an Historian of ours has blundred hath signed the third year of his Reign by the term of an Olympiad after the manner of the Greek computation or reckoning As likewise I pass other things of the like kind which are many times used and practised according to the fancy of the Clerks or Notaries However the last words which are the close of these Grants and Patents are not to be slighted These we may see in that of Cedwalla King of the South-Saxons made to Theadore Arch-Bishop of Canterbury in the year 687. thus For a further confirmation of my grant I Cedwalla have laid a Turf of the Land aforesaid upon the holy Altar of my Saviour And with my own hand being ignorant
Patents signed with Crosses and subscribed with Witnesses names do give an undoubted credit and assurance to what I have said John Ross informs us that Henry Beauclerk was the first that made use of one of Wax and Matthew of Canterbury that Edward the first did first hang it at the bottom of his Royal Writings by way of Label whereas before his Predecessors fastned it to the left side Such a writing of Henry the first in favour of Anselm the last Author makes mention of and such an one of William's Duke of the Normans though a very short one and very small written Brian-Twine in his Apology for the Antiquity of the famous University of Oxford the great Study and support of England and my ever highly honoured Mother saith he had seen in the Library of the Right Honourable my Lord Lumley But let a circumcised Jew or who else will for me believe that story concerning the first Seal of Wax and the first fastning of it to the Writing A great many waxen ones of the French Peers that I may say something of those in wax and Golden ones of their Kings to wit betwixt the years 600 and 700 we meet with fashioned like Scutcheons or Coats of Arms in those Patterns or Copies which Francis de Rosieres has in his first Tome of the Pedigree or Blazonry of the Dukes of Lorain set down by way of Preface Nor was it possible that the Normans should not have that in use which had been so anciently practised by the French Let me add this out of the ancient Register of Abendon That Richard Earl of Chester who flourished in the time of Henry the first ordered to sign a certain Writing with the Seal of his Mother Ermentrude seeing that being not girt with a Soldiers Belt i. e. not yet made Knight all sorts of Letters directed by him were inclosed with his Mothers Seal How what is that I hear Had the Knightly dignity and Order the singular priviledge as it was once at Rome to wear Gold-Rings For Rings as 't is related out of Ateius Capito were especially designed and ingraven for Seals Let Phoebus who knows all things out of his Oracle tell us For Servants or Slaves so says Justus Lipsius and remarks it from those that had been dug up in Holland and common Soldiers were allowed iron ones to sign or to seal with which therefore Flavius Vopiscus calls annulos sigillaricios i. e. seal-Rings and so your ordinary Masters of Families had such with a Key hanging at it to seal and lock up their provision and utensils But saith Ateius of the ancient time Neither was it lawful to have more than one Ring nor for any one to have one neither but for Freemen whom alone trust might become which is preserved under Seal and therefore the Servants of a Family had not the Right and Priviledge of Rings I come home to our selves now CHAP. III. Other ways of granting and conveying Estates by a Sword c. particularly by a Horn. Godwin's trick to get Boseham of the Arch-Bishop of Canterbury Pleadings in French The French Language and Hand when came in fashion Coverfeu Laws against taking of Deer against Murder against Rape 3. AT first many Lands and Estates were collated or bestowed by bare word of mouth without Writing or Charter only with the Lords Sword or Helmet or a Horn or a Cup and very many Tenements with a Spur with a Currycomb with a Bow and some with an Arrow But these things were in the beginning of the Norman Reign in after times this fashion was altered says Ingulph I and these things were before the Normans Government Let King Edgar his Staff cut in the middle and given to Glastenbury Abbey for a testimony of his Grant be also here for a testimony And our Antiquary has it of Pusey in Berkshire That those who go by the name of Pusey do still hold by a Horn which heretofore had been bestowed upon their Ancestors by Knute the Danish King In like manner to the same purpose an old Book tells this story That one Vlphus the Son of Toraldus turned aside into York and filled the Horn that he was used to drink out of with Wine and before the Altar upon his bended knees drinking it gave away to God and to St. Peter the Prince of the Apostles all his Lands and Revenues Which Horn of his saith Camden we have been told was kept or reserved down to our Fathers memory We may see the conveyance of Estate how easie it was in those days and clear from the punctilio's of Law and withal how free from the captious malice of those petty-foggers who would intangle Titles and find flaws in them and from the swelling Bundles and Rolls of Parchments now in use But commend me to Godwin Earl of Kent who was to use Hâ—gesander's word too great a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 catcher at Syllables and as the Comedian says more shifting than a Potters wheel Give me saith he to the Arch-Bishop of Canterbury Boseham The Arch-Bishop admiring what it was he would be at in that question saith I give you Boseham He straight upon the confidence of this deceit without any more ado entred upon an Estate of the Arch Bishops of that name on the Sea-coasts of Sussex as if it had been his own by Inheritance And with the testimony of his people about him spoke of the Arch-Bishop before the King as the donor of it and quietly enjoyed it Those things I spoke of before to wit of Sword Horn c. smell of that way of investing into Fees which we meet with in Obertus de Orto but are very unlike to that solemn ceremony which is from ancient time even still used in conveying of an Estate and delivering possession wherein a green Turf or the bough of a growing Tree is required 4. They did so much abhor the English tongue 't is the Abbot of Crowland saith it that the Laws of the Land and the Statutes of the English Kings were handled or pleaded in the French language For till the thirty sixth year of Edward the third all businesses of Law were pleaded in French That also in Schools the Rudiments of Grammatical Institution were delivered to Boys in French and not in English Also that the English way and manner of Writing was laid aside and the French mode was made use of in all Charters or Instruments and Books Indeed it was such a fault to be ignorant in the French or not to be able to speak it that mainly upon this account in the Reign of William Rufus Vlstan Bishop of Worcester was censured as unworthy of his place and deprived of his dignity who as to other things according to the simplicity of that Age was Scholar enough The Abbot whom I quoted speaks thus of the French Character The Saxon hand was used by all the Saxons and Mercians in all their
hand-writings till the time of King Alfred who had by French Tutors been very well trained up in all Literature but from the time of the said King it did by disuse come to be of little account and the French hand because it being more legible and more delightful to sight had the preheminence grew more and more every day in vogue and use among all the English Nevertheless however this business went we are told that in the memory of our Fathers and that by an ancient order there were Lectures of the English-Saxon language read at Tavistock Abby in Devonshire 5. That his new Kingdom might not be disturbed by Riots and disorders in the night he ordered that at the Ringing of a Bell which they called the Curfew-Bell all the Lights and Fires should in every little Cottage a little after the dusk of the Evening be put out 6. He that should take a Deer or aprum a Boar so says Huntingdon but perhaps 't is caprum a Buck or a Roe was to have his eyes thrust or plucked out saith Matthew Paris 7. If any one had slain any one 't is Huntingdon writes this be it upon what cause or occasion soever he was sentenced to a Capital punishment he was to die for it 8. If one had forced any woman so I read aliquam any woman not aliquem any man as 't is in the common Prints he was to have his Privities cut off Forced her I sure enough and perhaps he that lay with a woman with her consent was notwithstanding that served in the same kind too And in this case I would have you hear what that great Lawyer Albericus Gentilis his opinion is This I say saith he that a man hath a greater injury done him if the woman were not ravished per force but were debauched and made willing because in this case her mind is estranged from her Husband but in that other not CHAP. IV. Sheriffs and Ihries were before this time Tha four Terms Judges to Act without Appeal Justices of Peace The Kingr payments made at first in Provisions Afterwards ehanged into Mony which the Sheriff of each County was to pay in to the Exchequer The Constable of Dover and Warder of the Cinque Ports why made A disorder in Church-affairs Reformed POlydore Virgil brings in at this time the first Sheriffs of Counties and here places the beginning of Juries or determining of Tryals by the judgment of Twelve but is out in them both This of Juries is convinced by a Law of Ethelred in Lambard's explications of Law-terms and by those irrefragable arguments which the famous Sir Edward Coke brings against it That other mistake of Sheriffs is confuted by what we have formerly noted out of Ingulph and by what we shall hereafter somewhere have occasion to remark Mars being impleaded in the Areopagus the place of Judgment at Athens for the murder of Halirothius the Son of Neptune whom he had slain for Ravishing his Daughter Alcippa upon his Tryal by twelve Gods was acquitted by six Sentences or Votes For if the number were equal and no majority the Person was not condemned but discharged My meaning why I put in this Story is to shew the most ancient use of this number of twelve in Tryals elsewhere as well as amongst us An Italian might well mistake in a concern of England yet take it not ill at my hands that I have given you this upon his credit 9. He appointed that four times every year there should be kept Conventions or Meetings for several days in such place as he himself should give order In which Meetings the Judges sitting apart by themselves should keep Court and do Justice These are our four Tserms 10. He appointed other Judges who without appeal should exercise Jurisdiction and Judgment from whom as from the bosom of the Prince all that were ingaged in quarrels addressing thither might have right done them and refer their controverlies to them 11. He appointed other Rulers or Magistrates who might take care to see misdemeanors punished these he called Justices of Peace Now one may well imagine that this name of Office is most certainly of a later date and a foreign Writer is to be excused by those rights which are afforded to Guests and Strangers since acting a Busiris his part against them would be downright barbarous I say he is to be excused so far as not to have his mistakes in the History of the English Nation too heavily charged upon him 12. In the Primitive State of the Kingdom after the Conquest Gervase of Tilbury in his Dialogue of the Exchequer saith this is a thing handled down from our Forefathers the Kings had payments made them out of their Lands not in sums of Gold or Silver but only in Victuals or Provisions Out of which the Kings house was supplied with necessaries for daily use and they who were deputed to this service the Purveyors knew what quantity arose from each several land But yet as to Soldiers pay or donatives and for other necessaries concerning the Pleas of the Kingdom or Conventions as also from Cities and Castles where they did not exercise Husbandry or Tillage in such instances payments were made in ready mony Wherefore this Institution lasted all the time of William the First to the time of King Henry his Son so that I my self Gervase flourished in the Reign of Henry the second have seen some people who did at set times carry from the Kings Lands victuals or provisions of food to Court. And the Officers also of the Kings house knew very well having it upon account which Counties were to send in Wheat which to send in several sorts of flesh and Provender for the Horses These things being paid according to the appointed manner and proportion of every thing the Kings Officers reckoned to the Sheriffs by reducing it into a sum of pence to wit for a measure of Wheat to make bread for a hundred men one shilling for the body of a pasture-fed Beef one shilling for a Ram or a Sheep four pence for the allowance of twenty horses likewise four pence But in process of time when as the said King was busie in remote parts beyond Sea to appease Tumults and Insurrections it so happened that ready mony was highly necessary for him to supply his occasions In the mean time there came in multitudes a great company of Husbandmen with complaints to the Kings Court or which troubled him more they frequently came in his way as he was passing by holding up their Ploughshares in token that their Husbandry was running to decay for they were put to a world of trouble upon occasion of the provisions which they carried from their own quarters through several parts of the Kingdom Thereupon the King being moved with their complaints did by the resolved advice of his Lords appoint throughout the Kingdom such persons as he knew were for their prudence and
discretion fit for the service These persons going about and that they might believe their own eyes taking a view of the several Lands having made an estimate of the provisions which were paid out of them they reduced it into a sum of pence But for the total sum which arose out of all the Lands in one County they ordered that the Sheriff of that County should be bound to the Exchequer Adding this withal that he should pay it at the Scale Now the manner of paying the tryal of the weight and of the metal by Chymical operation the Melter or Coyner and the surveyor of the Mint are more largely handled and explained by my self in some other work of mine 13. That he might the more firmly retain Kent to himself that being accounted as it were the Key of England 't is the famous Mr. Camden tells the Story he set a Constable over Dover-Castle and made the same person Warden of the Cinque Ports according to the old usage of the Romans Those are Hastings Dover Hith Rumney and Sandwich to which are joyned Winchelsey and Rye as Principals and other little Towns as Members 14. To put the last hand to William I add out of the Archives this Law not to be accounted among the last or least of his William by the Grace of God King of the English to all Counts or Earls Viscounts or Sheriffs and to all French born and English men who have Lands in the Bishoprick of Remigius greeting This Remigius was the first who translated the Episcopal See from Dorchester to Lincoln Be it known unto you all and the rest of my Liege Subjects who abide in England that I by the common advice of my Arch-Bishops and the rest of the Bishops and Abbots and all the Princes of my Kingdom have thought fit to order the amendment of the Episcopal Laws which have been down to my time in the Kingdom of the Angles not well nor according to the Precepts of the holy Canons ordained or administred Wherefore I do command and by my Royal Authority strictly charge that no Bishop or Arch-deacon do henceforth hold Pleas in the Hundred concerning Episcopal Laws nor bring any cause which belongs to the Government of Souls i. e. to spiritual affairs to the judgment of secular men but that whosoever according to the Episcopal Laws shall for what cause or fault soever be summoned shall come to a place which the Bishop shall chuse and name for this purpose and there make answer concerning his cause and do right to God and his Bishop not according to the Hundred but according to the Canons and Episcopal Laws For in the time of the Saxon Empire there were wont to be present at those Country Meetings the Hundred Courts an Alderman and a Bishop the one for Spirituals the other for Temporals as appears by King Edgar's Laws CHAP. V. William Rufus succeeds Annats now paid to the King Why claimed by the Pope No one to go out of the Land without leave Hunting of Deer made Felony AFter the death of William his second Son WILLIAM sirnamed RVFVS succeeded in his room All Justice of Laws as Florentius of Worcester tells us was now husht in silence and Causes being put under a Vacation without hearing money alone bore sway among the great ones Ipsaque majestas auro corrupta jacebat that is And Majesty it self being brib'd with gold Lay as a prostitute expos'd to th' hold 15. The right or duty of First-Fruits or as they are commonly called the Annats which our Kings claimed from vacant Abbies and Bishopricks Polydor Virgil will have to have had its first original from Rufus Now the Popes of Rome laid claim to them anciently a sort of Tribute which upon what right it was grounded the Council of Basil will inform us and by what opinion and resolution of Divines and Lawyers confirmed Francis Duarenus in his Sacred Offices of the Church will instruct us 'T is certain that Chronologers make mention that at his death the Bishopricks of Canterbury Winchester and Salisbury and twelve Monasteries beside being without Prelates and Abbots paid in their Revenues to the Exchequer 16. He forbad by publick Edict or Proclamation sayes the same Author that any one should go out of England without his leave and Passport We read that he forbad Anselm the Arch-Bishop that he should not go to wait upon Pope Vrban but that he comprehended all Subjects whatsoever in this his Royal order I confess I have not met with any where in my reading but in Polydor. 17. He did so severely forbid hunting of Deer saith William of Malmesbury that it was Felony and a hanging matter to have taken a Stag or Buck. CHAP. VI. Henry the First why called Beauclerk His Letters of Repeal An Order for the Relief of Lands What a Hereot was Of the Marriage of the Kings Homagers Daughter c. Of an Orphans Marriage Of the Widows Dowry Of other Homagers the like Coynage-money remitted Of the disposal of Estates The Goods of those that dye Intestate now and long since in the Churches Jurisdiction as also the business of Wills Of Forfeitures Of Misdemeanors Of Forests Of the Fee de Hanberk King Edward's Law restored WIlliam who had by direful Fates been shewn to the World was followed by his Brother Henry who for his singular Learning which was to him instead of a Royal Name was called Beau-clerk He took care of the Common-wealth by amending and making good what had slipt far aside from the bounds of Justice and by softning with wholsome remedies those new unheard of and most grievous injuries which Ralph afterwards Bishop of Durham being Lord Chief Justice of the whole Kingdom plagued the people with He sends Letters of Repeal to the High Sheriffs to the intent that the Citizens and people might enjoy their liberty and free rights again See here a Copy of them as they are set down in Matthew Paris HENRY by the Grace of God King of England to Hugh of Bockland High Sheriff and to all his Liege people as well French as English in Herefordshire Greeting Know ye that I through the mercy of God and by the common advice of the Barons of the Kingdom of England have been crowned King And because the Kingdom was opprest with unjust exactions I out of regard to God and that love which I bear towards you all do make the holy Church of God free so that I will neither sell it nor will I put it to farm nor upon the death of Arch-Bishop or Bishop or Abbot will I take any thing of the domain of the Church or of the men thereof till a Successor enter upon it And all evil Customs wherewith the Kingdom of England was unjustly oppressed I do henceforward take away which evil usages I do here in part set down 18. If any one of my Barons Counts or others that hold of me shall dye his Heir shall not redeem his Land
the Advowson and Presentation of Churches Estates not to be given to Monasteries without the Kings leave Clergymen to answer in the Kings Court A Clergyman convict out of the Churches Protection None to go out of the Realm without the Kings leave This Repealed by King John Excommunicate Persons to find Surety Laymen how to be impleaded in the Ecclesiastical Court A Lay-Jury to swear there in what case No Homager or Officer of the Kings to be Excommunicated till He or his Justice be acquainted AT length though late first Henry the Son of Jeoffry Plantagenet Count of Anger 's by the Empress Mawd came to his Grandfatherrs Inheritance Having demolished and levelled to the ground the Castles which had in King Stephen's time been built to the number of eleven hundred and fifteen and having retrieved the right of Majesty into its due bounds he confirmed the Laws of his Grandfather Moreover at Clarendon in Wiltshire near Salisbury John of Oxford being President by the Kings own Mandate there being also present the Arch-Bishops Bishops Abbots Priors Earls Barons and Peers of the Realm other Laws are recognized and passed whilst at first those who were for the King on one side those who were for the Pope on the other with might and main stickle to have it go their way these latter pleading that the secular Court of Justice did not at all suit with them upon pretence that they had a priviledge of Immunity But this would not serve their turn for such kind of Constitutions as we are now setting down had the Vogue 44. If any Controversie concerning the Advowson and Presentation of Churches arise betwixt Laymen or betwixt Laymen and Clergymen or betwixt Clergymen among themselves let it be handled and determined in the Court of the Lord our King 45. The Churches which are in the Kings Fee cannot be given to perpetuity without his assent and concession Even in the Saxons times it seems it was not lawful without the Kings favour first obtained to give away Estates to Monasteries for so the old Book of Abington says A Servant of King Ethelred's called Vlfric Spot built the Abby of Burton in Staffordshire and gave to it all his Paternal Estate appraised at seven hundred pounds and that this donation might be good in Law he gave King Ethelred three hundred Marks of Gold for his confirmation of it and to every Bishop five Marks and over and above to Alfric Arch-Bishop of Canterbury the Village of Dumbleton 46. Clergymen being arighted and accused of any matter whatsoever having been summoned by the Kings Justice let them come into his Court there to make answer to that of which it shall be thought fit that there answer ought to be made So that the Kings Justice send into the Court of Holy Church to see after what manner the business there shall be handled 47. If a Clergyman shall be convicted or shall confess the Fact the Church ought not from thenceforth to give him protection 48. It is not lawful for Arch-Bishops Bishops and Persons of the Kingdom to go out of the Realm without leave of our Lord the King And if they do go out if the King please they shall give him security that neither in going nor in returning or in making stay they seek or devise any mischief or damage against our Lord the King Whether you refer that Writ we meet with in the Register or Record NE EXEAS REGNVM for Subjects not to depart the Kingdom to this time or instance or with Polydore Virgil to William Rufus or to later times is no very great matter Nor will it be worth our while curiously to handle that question For who in things of such uncertainty is able to fetch out the truth Nor will I abuse my leasure or spend time about things unapproachable An sit hic dubito sed hic tamen auguror esse Says the Poet in another case And so say I. Whether it be here or no Is a Question I confess And yet for all that I trow Here it is too as I guess Out of King John's great Charter as they call it you may also compare or make up this Repeal of that Law in part Let it be lawful henceforward for any one to go out of our Realm and to return safely and securely by Land and by Water upon our Royal word unless in time of War for some short time for the common advantage of the Kingdom excepting those that are imprisoned and out-lawed according to the Law of the Kingdom and any People or Nation that are in actual War against us And Merchants concerning whom let such Order be taken as is afore directed I return to King Henry 49. Excommunicate Persons ought not to give suretiship for the Remainder nor to take an Oath but only to find Surety and Pledge to stand to the Judgment of the Church that they may be absolved 50. Persons of the Laity ought not to be accused or impleaded but by certain and legal Accusers and Witnesses in the presence of the Arch-Bishop or Bishop so that the Arch-Deacon may not lose his right nor any thing which he ought to have therefrom 51. If they be such Persons who are in fault as no one will or dare to accuse let the Sheriff being thereunto required by him cause twelve legal men of the Voisinage or of the Village to swear before the Bishop that they will manifest or make known the truth of the matter according to their Conscience 52. Let no one who holds of the King in capite nor any one of the Kings Officers or Servants of his Domain be excommunicated nor the Lands of any of them be put under an Interdict or prohibition unless first our Lord the King if he be in the Land be spoke with or his Justice if he be out of the Land that they may do right by him And so that what shall appertain to the Kings Court may be determined there and as to what shall belong to the Ecclesiastical Court it may be sent thither and there treated of CHAP. XI Other Laws of Church affairs Concerning Appeals A Suit betwixt a Clergyman and a Layman where to be Tryed In what case one who relates to the King may be put under an Interdict The difference betwixt that and Excommunication Bishops to be present at Tryals of Criminals until Sentence of Death c. pass Profits of vacant Bishopricks c. belong to the King The next Bishop to be Chosen in the Kings Chappel and to do Homage before Consecration Deforcements to the Bishop to be righted by the King And on the contrary Chattels forfeit to the King not to be detained by the Church Pleas of debts whatsoever in the Kings Court Yeomens Sons not to go into Orders without the Lords leave 53. COncerning Appeals if at any time there shall be occasion for them they are to proceed from the Arch-Deacon to the Bishop and from the Bishop to
Pledge i. e. having a free Tenure let his heirs remain in such Seisin as their Father had on the day he was alive and dyed of his fee and let them have his Chattels out of which they may make also the devise or partition of the deceased that is the sharing of his goods according to his will and afterwards may require of their Lord and do for their relief and other things which they ought to do as touching their Fee i. e. in order to their entring upon the estate 71. If the heir be under age let the Lord of the Fee take his homage and have him in custody or keeping for as long time as he ought let the other Lords if there be more of them take his homage and let him do to them that which he ought to do 72. Let the Wife of the deceased have her Dowry and that part of his Chattels which of right comes to her In former times peradventure it was a like generally practised by the English that the Wife and Children should have each their lawful Thirds of the estate each of them I say if they were in being but half to the Wife if there were no issue and as much to the Children if the Wife did not survive her Husband as it was practised by the Romans of old according to the Falcidian Law and of later time by the Novells of Justinian that they should have their Quarter part For I see that those of Normandy of Arras of Ireland people that lay round about them had the same custom Of this you are to see Glanvill Bracton the Register of Briefs or Writs and William Lindwood beside the Records or yearly Reports of our Law 73. Let the Justices take the Fealties of our Lord the King before the close of Easter and at furthest before the close of Pentecost namely of all Earls Barons Knights and Free-holders and even of Rusticks or Vassals such as have a mind to stay in the Realm and he who will not do featly let him be taken into custody as an enemy of our Lord the King 74. The Justices have also this to give in charge that all those who have not as yet done their homage and allegiance to our Lord the King do at a term of time which they shall name to them come in and do homage and allegiance to the King as to their Liege Lord. 75. Let the Justices do all acts of Justice and rights belonging to our Lord the King by a Writ of our Lord the King or of them who shall be in his place or stead as to a half-Knights fee and under a Knights ' fee in an old Book which pretends to more antiquity by far than it ought concerning the manner of holding Parliaments is said to be twenty pounds worth of Land in yearly revenue but the number prefixt before the Red Book of the Exchequer goes at the rate of Six Hundred and Eighty Acres unless the complaint be of that great concern that it cannot be determined without our Lord the King or of that nature that the Justices by reason of their own doubting refer it to him or to those who shall be in his place and stead Nevertheless let them to the utmost of their ability intend and endeavour the service and advantage of our Lord the King 76. Let the Justices provide and take care that the Castles already demolisht be utterly demolished and that those that are to be demolished be well levelled to the ground And if they shall not do this our Lord the King may please to have the judgement of his Court against them as against those who shew contempt of his Precept 77. A Thief or Robber as soon as he is taken let him be put into the Sheriffs hands to be kept in safe custody and if the Sheriff shall be out of the way let him be carried or brought to the next Constable of a Castle and let him have him in custody until he deliver him up to the Sheriff 78. Let the Justices according to the custom of the Land cause inquiry to be made of those who have departed or gone out of the Realm And if they shall refuse to return within a term of time that shall be named and to stand to right in the Kings Court i. e. to make their appearance and there to answer if any thing shall be brought in against them let them after that be outlawed and the names of the Outlaws be brought at Easter and at the Feast of St. Michael to the Exchequer and from thence be sent to our Lord the King These Laws were agreed upon at Northampton CHAP. XVIII Some Laws in favour of the Clergy Of forfeitures on the account of Forest or hunting Of Knights fees Who to bear Arms and what Arms. Arms not to be alienated No Jew to bear Arms. Arms not to be carryed out of England Rich men under suspicion to clear themselves by Oath Who allowed to swear against a Free-man Timber for building of Ships not to be carryed out of England None but Free-men to bear Arms. Free-men who Rusticks or Villains not such 79. THat henceforth a Clergy-man be not dragg'd and drawn before a Secular Judge personally for any crime or transgression unless it be for Forest or a Lay-fee out of which a Lay-service is due to the King or to some other Secular Lord. This priviledge of the Clergy the King granted to Hugh the Popes Cardinal Legate by the Title of S. Michael à Petra who arrived here on purpose to advance the Popish interest 80. Furthermore that Arch-Bishopricks Bishopricks or Abbacies be not held in the Kings hand above a year unless there be an evident cause or an urgent necessity for it 81. That the Murderers or Slayers of Clergy-men being convicted or having confest before a Justice or Judge of the Realm be punished in the presence of the Bishop 82. That Clergy-men be not obliged to make Duel i. e. not to clear themselves as others upon some occasion did by single combat 83. He ordained at Woodstock we transcribe these words out of Hoveden that whosoever should make a forfeit to him concerning his Forest or his hunting once he should be tyed to find safe Pledges or Sureties and if he should make a second forfeit in like manner safe Pledges should be taken of him but if the same person should forfeit the third time then for his third forfeit no pledges should be taken but the proper body of him who made the forfeit Moreover we meet with these Military Laws or Laws of Knights fees made for Tenants and other people of the common sort 84. He who hath one Knights fee 't is the aforesaid Hoveden speaks let him have an Habergeon or Coat of Male and a Helmet or Head piece and a Buckler or Target and a Lance and let every Knight have so many Habergeons and Helmets and Targets and Lances as he shall have Knights fees in his demeans 85.
sometime or other been true since mony both in its Coyns and Summs hath in several Ages of the World risen and fallen according to its plenty or scarcity Lin. 42. Being arighted and accused of any matter Or rather in the Law-spelling arrested in Latin rectatus that is ad rectum vocatus convened before a Magistrate and charged with a crime Thus ad rectum habere is in Bracton to have a man forth coming so as he may be charged and put upon his tryal It may be also rendred taken upon suspicion It is written sometime retatus and irretitus Pag. 70. lin 33. To give suretiship for the Remainder I confess I do not well know how to apply to this place that sense which our Common Law takes the word Remainder in for a power or hope to enjoy Lands Tenements or Rents after anothers estate or term expired when an estate doth not revert to the Lord or Granter of it but remains to be enjoyed by some third person What if we say that as Bishops could not because their estates are of Alms grant any part of their Demeans ad remanentiam for ever or to perpetuity so here Excommunicate persons were not obliged dare vadium ad remanentiam to find sureties for continuance or for perpetuity that is for their future good behaviour but only to stand to the judgement of the Church in that particular case for which they were at present sentenced CHAP. XI Pag. 72. lin 24. If a Claim or Suit shall arise In the Latin si calumnia emerserit a known and frequent word in our Law which signifies a Claim or Challenge otherwise termed clameum Lin. 37. Till it shall by Plea be deraigned or dereyned which is in French dereyné in the Latin disrationatum which as it hath several significations in Law so here it imports after a full debate and fair hearing the determination of the matter by the judgement of the Court. CHAP. XII Pag. 75. lin 2. By the name of Yumen The same say some as the Danes call yong men Others derive the word from the Saxon geman or the old Dutch Gemen that is common and so it signifies a Commoner Sir Tho. Smith calls him Yoman whom our Laws term legalem hominem a Free-man born so Camden renders it by Ingenuus who is able to spend of his own free Land in yearly Revenue to the summ of Forty Shillings such as we now I suppose call Free-holders who have a Voice at the Election of Parliament-men But here the word is taken in a larger sense so as to include servile Tenure also or Villenage CHAP. XIII Pag. 77. lin 5. Leude men From the Saxon Leod the common people It signified in Law a Subject a Liege man a Vassal a Tenant hence in High-dutch a Servant was called Leute in Old English a Lout But in common acception Lewd was formerly taken for a Lay-man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 one of the people or for any illiterate person Now it is used to denote one who is wicked or loose and debauched CHAP. XIV Pag. 79. lin 8. The States of the Kingdom the Baronage He means the whole Parliament and not only the House of Lords by the word Baronage For though by Barons now we properly understand the Peers of the Realm yet anciently all Lords of Manours those who kept Court-Baron were styled Barons Nay Spelman tells us that all Free-holders went by that name before the Free-holds were quit letted out into such small pittances as now they are while Noble-men kept their Lands in their own hands and managed them by their Vassals Cowell gives this further account of those Lords of Manours that he had heard by men very learned in our Antiquities that near after the Conquest all such came to Parliament and sate as Nobles in the Upper House But as he goes on when by experience it appeared that the Parliament was too much pestered with such multitudes it grew to a custom that none should come but such as the King for their extraordinary wisdom or quality thought good to call by Writ which Writ ran hâc vice tantùm that is only for this turn So that then it depended wholly upon the Kings pleasure And then he proceeds to shew how after that they came to be made Barons by Letters Patents and the Honour to descend to their posterity Lin. 27. By way of safe pledge That is to oblige them to give security for the parties appearance against the day assigned who in case of default were to undergo the dammage and peril of it Pag. 80. lin 7. St. Peter's pence These Peter-pence were also called in Saxon Romescot and Romefeoh that is a Tribute or Fee due to Rome and Rome-penny and Hearth-penny It was paid yearly by every Family a Penny a house at the Feast of S. Peter ad Vincula on the first day of August It was granted first sayes our Author out of Malmesbury by Ina or Inas King of the West-Saxons when he went on Pilgrimage to Rome in the year of our Lord 720. But there is a more clear account given by Spelman in the word Romascot that it was done by Offa King of the Mercians out of an Author that wrote his Life And it is this That Offa after thirty six years Reign having vowed to build a Stately Monastery to the memory of St. Alban the British Protomartyr he went on Pilgrimage to Rome Adrian the First then Pope to beg Indulgences and more than ordinary Priviledges for the intended work He was kindly received and got what he came for and the next day going to see an English School that had been set up at Rome he for the maintenance of the poor English in that School gave a Penny for every house to be paid every year throughout his Dominion which was no less than three and twenty Shires at that time only the Lands of S. Alban excepted And this to be paid at the Feast of S. Peter because he found the body of the Martyr on that day for which reason it was also called S. Peter's Penny And although at last these Peter-pence were claim'd by the Pope as his own due and an Apostolical right yet we find that beside the maintenance of a School here mentioned for which they were first given they have by other Kings been appropriated to other uses Thus we read that Athelwolf Father to King Alured who was the first Monarch of this Isle granted three hundred Marks the summ total of the Peter-pence here bating only an odd Noble to be paid yearly at Rome One hundred for the honour of S. Peter to find Lights for his Church another hundred for the honour of S. Paul on the like occasion and the third hundred for the Pope's use to enlarge his Alms. This was done in the year 858. when Leo the Fourth was Pope Lin. 9. Thirty pence of live money Possibly the worth or value of thirty pence in Goods and Chattels King Offa in his Grant
as he was wont to do in the time of my Father but relieve it with a lawful and due relief In like manner also shall the Homagers or Tenants of my Barons relieve their Lands from their Lords with a lawful and just relief It appears that in the times of the Saxons a Hereot was paid to the Lord at a Tenants death upon the account of provision for War for here in Saxon signifies an Army and that which in our memory now in French is called a Relief Henry of Bracton sayes 't is an engagement to recognize the Lord doth bear a resemblance of the ancient Hereot Thereupon it is a guess saith William Lambard that the Normans being Conquerors did remit the Hereot to the Angles whom they had conquered and stripped of all kind of Armour and that for it they exacted money of the poor wretches To this agrees that which is mentioned in the State of England concerning the Nobles of Berkshire A Tain or Knight of the Kings holding of him did at his death for a Relief part with all his Arms to the King and one Horse with a Saddle and another without a Saddle And if he had Hounds or Hawks they were presented to the King that if he pleased he might take them And in an ancient Sanction of Conrade the First Emperour of Germany If a Souldier that is Tenant or Lessee happen to dye let his Heir have the Fee so that he observe the use of the greater Vavasors in giving his Horses and Arms to the Seniors or Lords John Mariana takes notice that the word Seniors in the Vular Languages Spanish Italian and French signifies Lords and that to have been in use from the time of Charlemain's Reign But these things you may have in more plenty from the Feudists those who write concerning Tenures 19. If any of my Barons or other men Homagers or Tenants of mine I return to King Henry's Charter shall have a mind to give his Daughter or Sister or Niece or Kinswoman in marriage let him speak with me about it But neither will I take any thing of his for this leave and licence nor will I hinder him from betrothing her except he shall have a design of giving her to an enemy of mine 20. If upon the death of a Baron or any other Homager of mine there be left a Daughter that is an Heiress I will bestow her with the advice of my Barons together with her Land 21. If upon the death of the Husband his Wife be left without Children she shall have her Dowry and right of Marriage as long as she shall keep her body according to Law and I will not bestow her but according to her own liking And if there be Children either the Wife or some one else near of kin shall be their Guardian and Trustee of their Land who ought to be just 22. I give order that my Homagers do in like manner regulate themselves towards the Sons and Daughters and Wives of their Homagers 23. The common Duty of Money or Coinage which was taken through all Cities and Counties which was not in the time of King Edward I do utterly forbid that henceforward this be no more done 24. If any one of my Barons or Homagers shall be sick and weak according as he himself shall give or order any one to give his money I grant it so to be given but if he himself being prevented either by Arms or by Sickness hath neither given his money nor disposed of it to give then let his Wife or Children or Parents and his lawful Homagers for his souls health divide it as to them shall seem best And in Canutus his Laws Let the Lord or Owner at his own discretion make a just distribution of what he hath to his Wife and Children and the next of kin But at this time and long since Church-men have been as it were the Distributors and Awarders of the Goods of such persons as dye Intestate or without making their Wills and every Bishop as Ordinary in his own Diocess is the chief Judge in these cases John Stratford Arch-Bishop of Canterbury saith it and it is averred in the Records of our Law that this Jurisdiction also concerning Wills was of old long time ago in an ancient Constitution intrusted to the Church by the consent of the King and Peers However in what Kings time this was done neither does he relate nor do I any where find as William Lindwood in his Provincial acknowledgeth It is a thing very well known that after Tryal of right Wills were wont to be opened in the Ecclesiastical Court even in the Reign of Henry the Second Ralph Glanvill is my witness contrary to what order was taken in the Imperial Decrees of the Romans And peradventure it will appear so to have been before Glanvill as he will tell you if you go to him although you have quoted by my self some where a Royal Rescript or Order to a High Sheriff That he do justly and without delay cause to stand i. e. appoint and confirm a reasonable share to such an one that is that the Legatee may obtain and enjoy his right what was bequested to him by the Sheriffs help I come back now to my track again 25. If any one of my Barons or Homagers shall make a forfeit he shall not give a pawn in the scarcity of his money as he did in the time of my Brother or my Father but according to the quality of his forfeiture nor shall he make amends as he would have done heretofore in my Brothers or Fathers time 26. If he shall be convicted of perfidiousness or of foul misdemeanors as his fault shall be so let him make amends 27. The Forests by the common advice of my Barons I have kept in mine own hand in the same manner as my Father had them 28. To those Souldiers or Knights who hold and maintain their Lands by Coats of Male that is per fee de Hauberke that they may be ready to attend their Lords with Habergeons or Coats of Male compleatly armed Cap a pee I grant the Plough-lands of their Domainsacquitted from all Gelds and from every proper Gift of mine that as they are eased from so great a Charge and Grievance so they may furnish themselves well with Horse and Arms that they may be fit and ready for my service and for the defence of my Realm 29. I restore unto you the Law of King Edward with other amendments wherewith my Father amended it Those amendments are put forth by Lambard Hitherto out of those Royal and general Letters directed to all the Subjects CHAP. VII His order for restraint of his Courtiers What the punishment of Theft Coyners to lose their Hands and Privy-members Guelding a kind of death What Half-pence and Farthings to pass The right measure of the Eln. The Kings price set for provisions 30. HE did by his Edict or Proclamation restrain
upon the payment of the Hereot Lin. 42. In French is called a Relief From the Verb Relever to raise again and take up the Estate which had faln into the Lords hand by the death of the Ancestor It is a summ of money which the new Homager when he is come to age payes to the Lord for his admission or at his entrance into the estate Whence by the old Civilians 't is called Introitus and in Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 This summ was moderately set wherein it differed from Ransom which was much more severe The Kings rates upon his Homagers were thus An Earls heir was to give an hundred Pounds a Barons an hundred Marks a Knights an hundred Shillings at most and those of lesser estate less according to the ancient custom of their Tenures as Spelman quotes it out of the Charter of Henry the Third Pag. 61. lin 11. Of the greater Uavasors They were a sort of Gentlemen next in degree to the Barons They did not hold immediately of the King but of some Duke Marquess or Earl And those that held from them again were called Valvasini or the lesser Vavasors There is little certainty what their Offices or Priviledges were or indeed whence they were so called whether qu. ad valvas stantes or valvae assidentes for their sitting or standing at their Lords door if those of that quality did so as some would have it or that they kept the doors or entrances of the Kingdom against the enemies as Spelman sayes or whether from Vassalli as the Feudists derive the name from that inferiour Tenure they had mediately from the King by his great Lords which seems the more likely because these greater Vavasors who did so hold are sometimes termed Valvasores regii and Vassi dominici that is the Kings Vassals Lin. 27. Her Dowry and right of Marriage In the Latin it is dotem suam maritagium Now Dos is otherwise taken in the English than in the Roman Laws not for that which the man receives with his Wife at marriage a Portion but for that which the Woman hath left her by her Husband at his death a Dowry And Maritagium is that which is given to a Man with his Wife so that 't is the same as Dos among the Romans saith Spelman But that is too general I think that the man should be obliged to return at his death all to his Wife that he had with her beside leaving her a Dowry I am therefore rather inclined to Cowell who tells us Maritagium signifies Land bestowed in marriage which it seems by this Law was to return to the Wife if her Husband dyed before her The word hath another sense also which doth not belong to this place being sometime taken for that which Wards were to pay to the Lord for his leave and consent that they might marry themselves which if they did against his consent it was called Forfeiture of marriage Lin. 35. The common Duty of Money or Coinage So I render the word Monetagium For it appears that in ancient times the Kings of England had Mints in most of the Countreys and Cities of this Realm See Cowell in the word Moniers For which priviledge 't is likely they paid some duty to the chief place of the Mint Thus in Doomesday we read as Spelman quotes it that in the City Winecestre every Monyer paid twenty shillings to London and the reason given pro cuneis monetae accipiendis for having Stamps or Coins of Money For from this Latin word Cuneus which our Lawyers have turned into Cuna from whence the Verb Cunaere comes our English word Coyn. Now it is more than probable that the Officers of the Chief Mint might by their exactions upon the inferiour Mints give occasion for the making of this Law Lin. 42. Or Children or Parents By Parent here we are to understand not a Father or Mother but a Cousin one a-kin as the word signifies in French and as it is used in our Laws And indeed the Latin word it self began to have that sense put upon it in vulgar speech toward the declension of the Empire as Lampridius informs us Pag. 62. lin 21. A pawn in the scarcity of his money That is if he were not able to pay his forfeit in specie i. e. to lay down the money he was to give security by a pawn of some of his Goods or Chattels See Cowell in the word Gage This in Latin is called Vadium a pawn or pledge from Vas vadis a surety Hence Invadiare to pawn or ingage a thing by way of security till a debt be paid Lin. 23. Nor shall he made amends From the French amende in our Law-Latin emenda which differs from a Fine or mulct in this that the Fine was given to the Judge but Amends was to be made to the Party aggriev'd Now there were three sorts of this Amende the Greater which was like a full Forfeiture the Mid-one at reasonable terms and the Least or Lowest which was like a gentle Amercement This distinction will help to explain the meaning of this Law L. 30. Per sée de Hauberke This in Latin is called Feudum Hauberticum i. e. Loricatum sayes Hotoman from the French word Haubert that is a Coat of Mail when a Vassal holds Land of the Lord on this condition that when he is called he be ready to attend his Lord with a Coat of Mail or compleat Armour on Now Haubert as Spelman tells us properly signifies a High Lord or Baron from Haut or hault high and Ber the same as Baro a Man or Baron And because these great Lords were obliged by their place and service to wait upon the King in his Wars on Horse-back with compleat Armour and particularly with a Coat of Mail on hence it came sayes he that the Coat of Mail it self was also called Haubert though he doth afterward acknowledge that the word is extended to all other Vassals who are under that kind of Tenure But then at last he inclines to think that the true ancient writing of the word is Hauberk not Haubert as it were Hautberg i. e. the chief or principal piece of Armour and Berg he will have to signifie Armour as he makes out in some of its compounds Bainberg Armour for the Legs and Halsberg Armour for the Neck and Breast and derives it from the Saxon Beorgan i. e. to arm to defend Add to this saith he that the French themselves and we from them call it an Haubergeon as it were Haubergium Lin. 33. From all Gelds The Saxon word geld or gild signifies a Tribute or Tax an Amercement a payment of money and money it self whence I doubt not but the best sort of money was called Gold It is from the Verb geldan or gyldan to pay In Latin it is Geldum and not Gilda as Cowell writes it For this signifies quite another thing a Fraternity or Company of Merchants or the like Whence a Gild-hall that
Heir after his Ancestor's decease Further in the Kings Writ as Glanvil cites it it is said that twelve Plough-lands make one Knights fee which allowing to a Plough-land one hundred twenty Acres amounts to one thousand four hundred and forty Acres In the main as to the value of a Knights fee 't is enough what Cowell tells us that it was so much inheritance as was sufficient yearly to maintain a Knight with convenient Revenue which in Henry the Thirds dayes Camden sayes was fifteen Pounds and Sir Thomas Smith rates at forty But to confirm the account which our Author here gives us we find in the Statute for Knights in the first of Edward the Second that such as had twenty Pounds in Fee or for term of life per annum might be compelled to be Knights And as to the various measure of Land of which we have had a remarkable instance in this business before us Spelman hath given us good reasons for it since where the Land was good they might probably reckon the fewer Acres to a yard-Yard-land a Hide a Knights fee c. and where it was barren they might allow the more Beside that some Lords who lett these Fees might be more bountiful and profuse others more parsimonious and severe to their dependents and that the services which were imposed upon these Fees might in some Mannors according to custom be lighter in others upon agreement and covenant more heavy All which might strangely diversifie the account as to the quantity or measure of those Lands which were to make up a Knights fee. CHAP. XVIII Pag. 91. lin 4. A little Habergeon or Coat of Mail. In Latin Halbergellum a diminutive from the Saxon Halsberg armour for the Neck and Breast It is written also Haubergellum and Hambergellum They mistake themselves who translate it a Halbert in French Halebarde anoffensive Weapon for a Coat of Mail which is armour of defence in French Haubert or Hauberk whence Fée de Hauberk which we have already explained somewhere before Lin. 5. A Capelet of Iron A little Iron or Steel Cap instead of a Head-piece or Helmet which the better sort wore For by comparing this with the two fore-going Sections we find they were to have a difference of Arms according to their different Quality and Estate Lin. 7. A Wambais Wambasium or Wambasia so called I suppose because it reached over the belly or womb was a Jacket or Coat of defence used in stead of the Coat of Mail perhaps like unto our Buff-coats though probably not of Leather only but of any other material as the Wearer should think fit Pag. 92. lin 6. Timber for the building of Ships In Latin here Mairemia written also Meremia and Meremium and Maremium and Muremium from the French Meresme Timber to build with Lin. 14. Stercutius Saturn so called as being the first Inventer of dunging Land Lin. 28. Vnder the title of Free-men Here the Author himself hath in the Latin added a Marginal Note which I thought fit to remove to this place He saith that among the ancient Germans the Alway free the Middlemost free and the Lowermost free were as it were the Classes and several Ranks of the lesser Nobles i. e. of their Gentry For the title of Nobless as also in our Vulgar Language was given only to Princes and Great Men. And for this he quotes Munster Cosmog lib. 3. CHAP. XIX Pag. 93. l. 32. In the borders of the Carnutes A people of France whose Countrey is called Chartrain and their chief City Chartres about eighteen Leagues from Paris Eastward That Town eight Miles off called Dreux in Latin Drocum was so named from the Druids who dwelt there at first and likely enough afterward often resorted thither P. 94. l. 37. Of the three Estates the King the Lords and the Commons There are indeed three Orders or Estates acknowledged by true Divines and sound Lawyers in the English Government to wit the Lords Spiritual the Lords Temporal and the Commons of England But the fundamental mistake of our Learned Author is that he hath joyned those two sorts of Lords whose very character shews them to be of a distinct species though as to the publick Welfare and the Kings Service they ought to be of one and the same interest into one Estate and to make up the third Estate thought himself obliged to bring in the King himself for one who is Lord paramount over all the three and by this means ipsam Majestatem in ordinem redigere I call this a fundamental mistake as a most probable ground of Rebellion as it was in the Barons Wars and in our late Civil Broils inasmuch as if the King make one of the three Estates as they fancy he doth and hath as they do from thence conclude he hath no more but a co-ordinate power with both or either of the other two Estates that then it is lawful for both or either of those Estates in case of publick grievances to quarrel the King their co-ordinate if he will not give way to their redress that is if he will not consent to do what they would have him to do and upon his refusal of so doing to raise War against him to sequester and murder his Loyal adherents to destroy his Royal Person and finally if he escape the hazards of Battel when they get him into their hands to bring him to account for a pretended male administration and the violation of a trust which God and not the People put into his hands and having gone so far that they may if possible secure themselves to put the Monarch to death and to extirpate Monarchy it self This was the ground and method of our late Republican policy and practice Wherein yet they did not foresee what examples they set against themselves supposing this Doctrine of the three Estates in their sense to be true and that King Lords and Commons had an equality of trust and parity of power that the same outrage which the Rump-Commoners acted against the King to the destroying of him and against the Lords to the outing of them and voting them useless and dangerous as to their share of Government might one time or other be more plausibly promoted and more effectually put in execution by one or both of the other two Estates with the help and assistance of great numbers of the Commoners as there ever will be in such National divisions against themselves and all men whatever of such pernicious and destructive principles No. This false Doctrine I hope will never obtain among us and our English Government is so well constituted that our Lords Spiritual and Temporal and our worthy Commoners will find it the interest of themselves and their posterities that they will ever have that duty and deference to our Soveraign as may secure Him and Us and discourage the designs and defeat the attempts of all such as wish ill to his honour and safety or to the publick peace