rules ne gouvernes per la Loy Civil that is inasmuch as the Realm of England was not before this time nor in the intention of our said Lord the King and the Lords of Parliament ever shall be ruled or governed by the Civil Law And hereupon the persons impleaded are sentenced to be banished But here is an end of Stephen He fairly dyed CHAP. X. In King Henry the Seconds time the Castles demolished A Parliament held at Clarendon Of 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Kings Court A Clergyman convict out of the Churches Protection None to go out of the Realm without the Kings leave This Repealed by King John Excommunicate Persons to find Surety Laymen how to be impleaded in the Ecclesiastical Court A Lay-Jury to swear there in what case No Homager or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 the Arch-Bishop and if the Arch-Bishop shall be wanting in doing of Justice they must come in the last place to our Lord the King that by his precept or order the Controversie may be determined in the Arch-Bishops Court so as that it ought not to proceed any further without the Kings assent This Law long since the famous Sir Edward Coke made use of to assert and maintain the Kings Ecclesiastical Jurisdiction as a thing not of late taken up by him but anciently to him belonging 54. If a Claim or Suit shall arise betwixt a Clergyman and a Lay-man or betwixt a Layman and a Clergyman concerning any Tenement which the Clergyman would draw to the Church and the Lay-man to a Lay-fee it shall by the recognizance of twelve legal men upon the consideration and advisement of the Lord Chief Justice be determined whether the Tenement do appertain to Alms i. e. to the Church or to Lay-Estate before the Kings own Justice And if it shall be recognized or adjudged to appertain to Alms it shall be a Plea in the Ecclesiastical Court But if to a Lay-fee unless they both avow or avouch the Tenement from the same Bishop or Baron it shall be a Plea in the Kings Court But if each of them shall for that fee avouch the same Bishop or Baron it shall be a Plea in that Bishops or Barons Court so that he who was formerly seised shall not by reason of the Recognizance made lose the Seisin till it shall by Plea be deraigned 55. He who shall be of a City or a Castle or a Burrough or a Manner of the Kings Domain if he shall be cited by an Arch-Deacon or a Bishop upon any misdemeanour upon which he ought to make answer to him and refuse to satisfie upon their summons or citations they may well and lawfully put him under an Interdict or Prohibition but he ought not to be Excommunicated By the way seasonably remark out of the Pontificial Law that that Excommunication they call the greater removes a man and turns him out from the very Communion and Fellowship of the Faithful and that an Interdict as the lesser Excommunication separates a man and lays him aside only forbidding him to be present at Divine Offices and the use of the Sacraments I say he ought not to be Excommunicated before that the Kings Chief Justice of that Village or City be spoken with that he may order him to come to satisfaction And if the Kings Justice fail therein he shall be at the Kings mercy and thereupon or after that the Bishop may punish him upon his impleadment with the Justice of the Church 56. Arch-Bishops Bâ—shops and all Persons whatsoever of the Kingdom who hold of the King in capite and have their possessions from our Lord the King in nature of a Barony and thereupon make answer to the Kings Justices and Officers and perform all Rights and Customs due to the King as other Barons do they ought to be present at the Tryals of the Court of our Lord the King with his Barons until the losing of Limbs or death be adjudged to the party tried 57. When an Arch-Bishoprick or Bishoprick or Abbacy or Priory of the Kings Domain shall be void it ought to be in his hand and thereof shall he receive all the profits and issues as belonging to his Domain And when the Church is to be provided for our Lord the King is to order some choice persons of the Church and the Election is to be made in the Kings own Chappel by the assent of our Lord the King and by the advice of those persons of the Kingdom whom he shall call for that purpose and there shall the Person Elect saving his order before he be Consecrated do Homage and Fealty to our Lord the King as to his Liege Lord for his life and limbs and for his Earthly Honour 58. If any one of the Nobles or Peers do deforce to do Justice to an Arch-Bishop Bishop or Arch-Deacon for themselves or those that belong to them the King in this case is to do justice 59. If peradventure any one shall deforce to the Lord the King his Right the Arch-Bishop Bishop and Arch-Deacon ought then in that case to do justice or to take a course with him that he may give the King satisfaction 60. The Chattels of those who are in the Kings forfeit let not the Church or Church-yard detain or keep back against the justice of the King because they are the Kings own whether they shall be found in Churches or without 61. Pleas of debts which are owing either with security given or without giving security let them be in the Kings Court. 62. The Sons of Yeomen or Country people ought not to be ordained or go into holy Orders without the assent of the Lord of whose Land they are known to have been born CHAP. XII The Statutes of Clarendon mis-reported in Matthew Paris amended in Quadrilegus These Laws occasioned a Quarrel between the King and Thomas a Becket Witness Robert of Glocester whom he calls Yumen The same as Rusticks i. e. Villains Why a Bishop of Dublin called Scorch-Uillein Villanage before the Normans time I Confess there is a great difference between these Laws and the Statutes of Clarendon put forth in the larger History of Matthew Paris I mean those mangled ones and in some places what through great gaps of sence disjointings of Sentences and misplacings of words much depraved ones whose misfortune I ascribe to the carelesness of Transcribers But the latter end of a Manuscript Book commonly called Quadrilegus wherein the Life of Thomas Arch-Bishop of Canterbury is out of four Writers to wit Hubert of Boseham John of Salisbury William of Canterbury and Alan Abbot of Tewksbury digested into one Volume hath holp us to them amended as you may see here and set to rights It is none of our business to touch upon those quarrels which arose upon the account of these Laws betwixt the King and Thomas of Canterbury Our Historians do sufficiently declare them In the mean time may our Poet of Glocester have leave to return upon the Stage and may his Verses written in ancient Dialect comprising the matter which we have in hand be favourably entertained No man ne might thenche the love that there was Bitwene the K. H. and the good man S. Thomas The diuel had enui therto and fed bitwen them feu Alas alas thulke stond vor all to well it greu Uor there had ere ibe
the whole Book p. 13 CHAP. X. The Druids reckoning of time An Age consists of thirty Years What Authors treat of the Druids Their Doctrines and Customs savour of Pythagoras and the Cabbalists They were the eldest Philosophers and Lawyers among the Gentiles Some odd Images of theirs in Stone in an Abby near Voitland described p. 15 CHAP. XI The Britans and Gauls had Laws and Customs much alike and whence that came Some things common to them both set down in relation to the breeding of their Children the Marrying of their Wives the Governing of their Families burning Women that killed their Husbands and burning some Servants with the dead Master for company Together with some Remarks of their publick Government p. 16 CHAP. XII Women admitted to publick debates A large commendation of the Sex together with a vindication of their fitness to govern against the Salick Law made out by several examples of most Nations p. 18 CHAP. XIII Their putting themselves under protection by going into great mens service Their Coins of money and their weighing of it Some sorts of flesh not lawful to be eaten by them p. 21 CHAP. XIV Community of Wives among the Britans used formerly by other Nations also Chalcondylas his mistake from our Civil Custom of Saluting A rÄ—buke of the foolish humour of Jealousie p. 22 CHAP. XV. An account of the British State under the Romans Claudius wins a Battel and returns to Rome in Triumph and leaves A. Plautius to order affairs A Colony is sent to Maldon in Essex and to several other places The nature of these Colonies out of Lipsius Julius Agricola's Government here in Vespasian's time p. 24 CHAP. XVI In Commodus his time King Lucy embraces the Christian Religion and desires Eleutherius then Pope to send him the Roman Laws In stead of Heathen Priests he makes three Arch-Bishops and twenty eight Bishops He endows the Churches and makes them Sanctuaries The manner of Government in Constantine's time where ends the Roman account p. 27 CHAP. XVII The Saxons are sent for in by Vortigern against the Scots and Picts who usurping the Government set up the Heptarchy The Angles Jutes Frisons all called Saxons An account of them and their Laws taken out of Adam of Bremen p. 29 CHAP. XVIII The Saxons division of their people into four ranks No person to marry out of his own rank What proportion to be observed in Marriages according to Policy Like to like the old Rule Now Matrimony is made a matter of money p. 30 CHAP. XIX The Saxons way of judging the Event of War with an Enemy Their manner of approving a proposal in Council by clattering their Arms. The Original of Hundred-Courts Their dubbing their Youth into Men. The priviledge of young Lads Nobly born The Morganheb or Wedding-dowry p. 32 CHAP. XX. Their severe punishments of Adultery by maiming some parts of the body The reason of it given by Bracton The like practised by Danes and Normans p. 33 CHAP. XXI The manner of Inheriting among them Of deadly Feuds Of Wergild or Head-money for Murder The Nature of Country-Tenures and Knights Fees p. 36 CHAP. XXII Since the return of Christianity into the Island King Ethelbert's Law against Sacriledge Thieves formerly amerced in Cattel A blot upon Theodred the Good Bishop of London for hanging Thieves The Country called Engelond by Order of King Egbert and why so called The Laws of King Ina Alfred Ethelred c. are still to be met with in Saxon. Those of Edward the Confessor and King Knute the Dane were put forth by Mr. Lambard in his Archaeonomia p. 37 CHAP. XXIII King Alfred divides England into Counties or Shires and into Hundreds and Tythings The Original of Decenna or Court-leet Friburg and Mainpast Forms of Law how People were to answer for those whom they had in Borgh or Mainpast p. 39 CHAP. XXIV King Alfred first appointed Sheriffs By Duns Scotus his advice he gave Order for the breeding up of Youth in Learning By the way what a Hide of Land is King Edgar's Law for Drinking Prelates investiture by the Kings Ring and Staff King Knute's Law against any English-man that should kill a Dane Hence Englescyre The manner of Subscribing and Sealing till Edward the Confessor's time King Harold's Law that no Welch-man should come on this side Offa's Dike with a weapon p. 41 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 p. 43 THE CONTETNS BOOK 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 p. 47 CHAP. II. The whole Country inrolled in Dooms-day Book Why that Book so called Robert of Glocester's Verses to prove it The Original of Charters and Seals from the Normans practised of old among the French Who among the Romans had the priviledge of using Rings to seal with and who not p. 51 CHAP. III. Other wayes 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 p. 54 CHAP. IV. Sheriffs and Juries were before this time The four Terms Judges to act without appeal Justices of Peace The Kings payments made at first in Provisions Afterwards changed 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 p. 56 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 p. 59 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 Hauberk King Edward's Law restored p. 60 CHAP. VII His order for the 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
one should be suspected of Larceny or Thest he might in his own Hundred or Ward being either condemned or giving security in some Manuscripts it is being acquitted he might either incur or avoid the deserved penalty William of Malmsbury adds to this that he that could not find security was afraid of the severity of the Laws and if any guilty person either before his giving security or after should make his escape all of that Hundred and Tything should incur the Kings fine Here we have the Original of Decenna or a Court-leet of Friburg and perhaps of Mainpast Which things though grown out of use in the present Age yet are very often mentioned not only in the Confessors Laws but also in Bracton and in other Records of our Law What Decenna was the word it self does almost shew And Ingulph makes out that is a Dousin or Courtleet Friburg or Borgh signifies a Surety for Fri is all one as free He who passes his word for anothers good behaviour or good a bearing and is become his security is said to have such a one in his Borgh Being ingaged upon this account to the Government to answer for him if he misbehave himself And hence it is that our people in the Country call those that live near them or as I may say at the next door Neighbours When yet those that would find out the reason why the people of Liege in the Low Countries are called Eburones do understand that Burgh which is the same as Borgh to stand for a Neighbour and this is plainly affirmed by Pontus Heuterus in other Originations of the like kind Manupastus is the same thing as a Family As if one would say fed by hand Just in the like sence Julius Pollux in Greek terms a Master of a Family Trophimos that is the feeder of it That the Rights of Friburg and Manupast were in use with the English some five or six Generations ago is manifest Curio a Priest is fined by Edward the third because there had been one of his Family a Murderer And the ancient Sheets concerning the Progress or Survey of Kent under Edward the second do give some light this way Ralph a Milner of Sandon and Roger a Boy of the said Ralph in Borgh of Twicham Critick whoever you are I would not have you to laugh at this home-spun Dialect came by night to the Mill of Harghes and then and there murdered William the Milner and carried away his Goods and Chattels and presently fled It is not known whither they are gone and the Jury mistrusts them the said Ralph and Roger concerning the death of the aforesaid William therefore let them be driven out and out-lawed They had no Chattels but the aforesaid Ralph was in Borgh of Simon Godwin of Twicham who at present has him not and therefore lies at mercy And Roger was not in Borgh but was of the Mainpast of Robert Arch-Bishop of Canterbury deceased there being no Engleshire presented the Verdit is the murder upon the Hundred The first discoverer of it and three Neighbours are since dead and Thomas Broks one of the Neighbours comes and is not mistrusted and the Villages of Wimesbugewelle and Egestoun did not come fully to the Coroners Inquest and are therefore at mercy And about the same time Solomon Rois of Ickham came to the House of Alice the Daughter of Dennis Whenes and beat her and struck her upon the Belly with a staff so that she dyed presently And the foresaid Solomon presently fled and the Jury mistrust him concerning the death aforesaid therefore let him be driven out and be outlawed He had no Chattels nor was he in Borgh because a Vagrant The Verdit the murder lies upon the Hundred c. And according to this form more such Instances But let it suffice to have hinted at these things adding out of Henry Bracton If out of Frank-pledge an Offender be received in any Village the Village shall be at mercy unless he that fled be such an one that he ought not to be in Leet and Frank-pledge as Nobles Knights and their Parents their eldest Sons it is in the yearly Records of Law in Edward the first 's time and we may take in Daughters too a Clergy-man a Freeman I fear this word has crept in and the like according to the custom of the Country and in which case he of whose Family and Mainpast they were shall be bound in some parts and shall answer for them unless the custom of the Country be otherways that he ought not to answer for his Mainpast as it is in the County of Hertford where a man does not answer for his Mainpast for any offence unless he return after Felony or he receive him after the offence committed as in the Circuit of M. de Pateshull in the County of Hertford in such a year of King Henry the fifth In sooth these usages do partly remain in our Tythings and Hundreds not at all hitherto repealed or worn out of fashion CHAP. XXIV King Alfred first appointed Sheriffs By Duns Scotus his advice he gave Order for the breeding up of Youth in Learning By the way what a Hide of Land is King Edgar's Law for Drinking Prelates investiture by the Kings Ring and Staff King Knute's Law against any English-man that should kill a Dane Hence Englescyre The manner of Subscribing and Sealing till Edward the Confessor's time King Harald's Law that no Welch-man should come on this side Offa's Dike with a weapon 36. THe Governors of Provinces who before were styled Deputy-Lieutenants we return to Ingulph and King Alfred He divided into two Offices that is into Judges whom we now call Justices and into Sheriffs who do still retain the same name Away then with Polydore Virgil who fetches the first Sheriffs from the Norman Conqueror 37. John Scot Erigena advised the King that he would have his Subjects instructed in good Letters and that to that end he would by his Edict take care of that which might be for the benefit of Learning Whereupon he gave strict order to all Freemen of the whole Kingdom who did at least possess two Hides of Land that they should hold and keep their Children till the time of fifteen years of their Age to learning and should in the mean time diligently instruct them to know God A Hide of Land that I may note it once for all and a Plough-Land that is as much Land as can be well turned up and tilled with one Plough every year are read as synonymous terms of the same sence in Huntingdon Matthew Paris Thomas Walsingham and expresly in a very old Charter of Dunstan Although some take a Hide for an hundred Acres and others otherwise do thou if thou hadst rather so do fansie it to be as much ground as one can compass about with a Bull-hide cut into Thongs as Queen Dido did at Carthage There are some who are not unwilling
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 Jâ—ries were before this time Thâ— four Terms Judges to Act without Appeal Justices of Peace The Kings payments made at first in Provisions Afterwards changed into Mony which the Sheriff of each County was to pay in to the Exchequer The Constable of Dover and Warden 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 Terms 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 controversies 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
kings of Luther dede As W. Bastard and his son W. the rede That Luther Laws made inou and held in al the lond The K. nold not beleue the lawes that he fond Ne that his elderne hulde ne the godeman S. Thomas Thought that thing age right neuer law nas Ne sothnes and custom mid strength up ihold And he wist that vre dere Lourd in the Gospel told That he himselfe was sothnes and custum nought Theruore Luther custumes he nould graent nought Ne the K. nould bileue that is elderne ad ihold So that conteke sprung bituene them manifold The K. drou to right law mani Luther custume S. Thomas they withsed and granted some The Lawes that icholle now tell he granted vawe Zuf a yuman hath a sone to clergi idraw He ne sall without is lourdes icrouned nought be Uor yuman ne mai nought be made agen is lourds will free Those that are born Slaves or that other sort of servants termed Villains he calls by the name of Yumen We call free-born Commoners alike as Servants as it were with a badg of ignobleness or ungentility Yeomen and those who of that number are married men Gommen for it was Gomman in the old Dutch not Goodman as we vulgarly pronounce it which signified a married man Words as I am verily perswaded made from the Latin Homines which very word by Ennius and Festus according to the Oscan Idiom is written Hemones and in our Language which comes pretty near that spelling of the Poet Yeomen And the Etymon or Origination of the word it self is very much confirmed by the opinion of some of our own Country Lawyers who take but with a mistake Homines i. e. men that do homage and Nativos i. e. born Slaves in ancient Pleas to be terms equipollent and of the same importance The Constitution of Clarendon style those Rusticks or Countrymen whom he calls Yumen and Rusticks and Villains those among the English were slaves or servants were anciently synonymous words meaning the same thing For whereas Henry Londres Arch Bishop of Dublin had treacherously committed to the flames the Charters of his Rustick Tenants the Free Tenants called him as we read in the Annals of Ireland Scorch-Uillein as if one would say the burner or firer of Villains Nor should I think it unseasonable in this place to take notice of a mistake or oversight of Thomas Spott a Monk of Canterbury who writes that the English before the Norman Conquest knew nothing of private servitude or bondage i. e. had no such thing as Villanage among them For he is convinced both by the Maid of Andover King Edgar's Miss as also by the Laws signed and sealed by King Ina and by that Donation or Grant Torald of Bukâ—nhale made to Walgate Abbot of Crowland wherein among other things a great many servants are mentioned with their whole suits and services Take it also out of the Synod of London Anselme being President of it since here belike there is mention made of Servants That no one henceforward presume to use that ungodly practice which hitherto they were wont in England to do to sell or put to sale men that is Servants like brute Beasts But we do not do civilly to interrupt the Poet We must begin again with him he once more tunes his Pipes Another thing he granted eke as ye mow novise Yuf a man of holi Chirch hath eni lay fee Parson other what he be he ssal do therevore Kings service that there valth that is right ne be vorlore In plaiding and in assise be and in judgement also Bote war man ssal be bilemed other to deth ido He granted eke yuf eni man the Kings traitor were And eni man is chateux to holi chirch bere That holi chirch ne solde nought the chateux there let That the K. there other is as is owne is ne wette Uor all that the felon hath the Kings it is And eche man mai in holi church is owne take iwis He granted eke that a chirche of the Kings fe In none stede ene and ever ne ssold igiue be As to hous of religion without the Kings leve And that he other the patron the gift first gave S. Thomas granted well these and other mo And these other he withsede that did him well woe I. Yuf bituene twei leud men were eni striving Other bituene a leud and a clerc for holi chirch thing As vor vouson of chirch whether shold the chirch giue The K. wold that in his court the ple ssold be driue Uor as much as a leud man that the o parti was Chanliche was under the K. under no bishop nas CHAP. XIII The Poet gives account which of those Laws were granted by Thomas a Becket which withstood Lendemen signifies Laymen and more generally all illiterate Persons THat which this Author of ours calls Leudemen the Interpreters of Law both our Common and the Canon Law call Laicks or Laymen For as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. people as it it is derived by Caesar Germanicus upon Aratus his Phaenomena after Pindar 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. from a Stone denotes a hard and promiscuous kind of men so the word Leudes imports the illiterate herd the multitude or rabble and all those who are not taken into holy Orders Justus Lipsius in his Poliorceticks discourses this at large where he searches out the origination of Leodium or Liege the chief City of the Eburones in the Netherlands As to what concerns our language John Gower and Jeoffry Chaucer who were the Reformers and Improvers of the same in Verse do both make it good Thus Jeoffry No wonder is a leude man to rust If a Priest be foule on whom we trust However that it signifies an illiterate or unlearned person as well as one not yet in orders what he saith elsewhere informs us This every leud Uicar and Parson can say And Peter of Blois and others use this expression as well Laymen as Scholars But let not Chaucer take it ill that here he must give way to our Glocester Muse. II. Another was that no clâ—re ne bishop nath mo Ne ssolde without Kings loue out of the lond go And that hii ssolde suere up the boke ywis That hii ne sold purchas no uvel the K. ne none of is III. The thrid was yuf eni man in mausing were I brought And suth come to amendment ne age were nought That he ne suore â—p the boc ac borowes find solde To stand to that holy Chirch there of him toky wold IV. The verth was that no man that of the K. huld ought In cheife or in eni servise in mausing were ibrought Bote the wardeins of holy chirch that brought him thereto The K. sede or is bailifes wat he ad misdo And loked verst were thei to amendment it bring And vote hii wolde by their leue do the mausing V. The vist was that
bishoprikes and Abbeis also That vacans were of prelas in the K. hand were ido And that the K. sold all the land as is owne take Uort at last that him lust eni prelat there make And than thulke prelat sould in is chapel ichose be Of is clarks which he wuld to such prelace bise And than wan he were ichose in is chapel right yere Homage he solde him do ar he confirmed were VI. The sixt was yuf eni play to chapitle were idraw And eni man made is appele yuf me dude him unlaw That to the Bishop from Ercedeken is appele sold make And from Bishop to Arcebissop and suth none other take And but the Ercebisops court to right him wold bring That he sold from him be cluthe biuore the King And from the K. non other mo so that attan end Plaining of holi chirch to the K. shold wend. And the K. amend solde the Ercebissops dede And be as in the Popes stude and S. Thomas it withsede VII The seuethe was that plaiding that of det were To yeld wel thoru truth iplight and nought ihold nere Althei thoru truth it were that ple sold be ibrought Biuore the K. and is bailies and to holy chirch nought VIII The eighth that in the lond citation none nere Thoru bull of the Pope of Rome and clene bileued were IX The nithe was that Peters pence that me gadereth manion The Pope nere nought on isend ac the K. echone X. The tethe was yuf eni Clarke as felon were itake And vor felon iproved and ne might it not forsake That me sold him verst disordein and suth thoru there law And thoru judgement of the land hong him other to draw Uor these and vor other mo the Godeman S. Thomas Fleu verst out of England and eke imartred was Uor he sei there nas bote o way other he must stiffe be Other holy chirch was isent that of right was so fre CHAP. XIV The Pope absolves Thoms a Becket from his Oath and damns the Laws of Clarendon The King resents it writes to his Sheriffs Orders a Seisure Penalties inflicted on Kindred He provides against an Interdict from Rome He summons the Bishops of London and Norwich An Account of Peter Pence TO the Laws of Clarendon which I spoke of the States of the Kingdom the Baronage and with them the Arch-Bishop of Canterbury took their Oaths in solemn manner calling upon God There were Embassadors sent to Pope Alexander the third that there might be that bottom also that he would further confirm and ratifie them But he was so far from doing that that he did not only pretend that they did too much derogate from the priviledge of the Clergy and wholly refuse to give his assent to them but also having absolved Thomas the Arch-Bishop at his own request from the obligation of that Oath he had bound himself with he condemned them as impious and such as made against the interest and honour of holy Church King Henry as soon as he heard of it took it as it was fit he should very much in dudgeon grievously and most deservedly storming at the insolence of the Roman Court and the Treachery of the Bishop of Canterbury Immediately Letters were dispatcht to the several Sheriffs of the respective Counties That if any Clerk or Layman in their Bayliwicks should appeal to the Court of Rome they should seise him and take him into firm custody till the King give order what his pleasure is And that they should seise into the Kings hand and for his use all the Revenues and Possessions of the Arch-Bishops Clerks and of all the Clerks that are with the Arch-Bishop they should put by way of safe pledge the Fathers Mothers and Sisters Nephews and Neeces and their Chattels till the King give order what his pleasure is I have told the Story out of Matthew Paris You see in this instance a penalty where there is no fault It affects or reaches to their Kindred both by Marriage and Blood a thing not unusual in the declension of the Roman Empire after Augustus his time But let misdemeanors hold or oblige those who are the Authors of them was the Order of Arcadius and Honorius Emperors to the Lord Chief Justice Eutychianus nor let the fear of punishment proceed further than the offence is found A very usual right among the English whereby bating the taking away the Civil Rights of Blood and Nobility none of the Posterity or Family of those who lose their honours do for the most hainous crimes of their Parents undergo any pâ—â—alâ—ies But this was not all in those Letters I mentioned he added threats also 63. If any one shall be found carrying Letters or a Mandate from the Pope of Thomas Arch-Bishop of Canterbury containing an interdiction of Christian Religion in England let him be seised and kept in hold and let Justice be done upon him without delay as a Traitor against the King and Kingdom This Roger of Hoveden stands by ready to witness 64. Let the Bishops of London and Norwich be summon'd that they may be before the Kings Justices to do right i. e. to answer to their charge and to make satisfaction that they have contrary to the Statutes of the Kingdom interdicted the Land of Earl Hugh and have inflicted a sentence of Excommunication upon him This was Hugh Bigod Earl of Norfolk 65. ' Let St. Peters pence be collected or gathered and kept safe Those Pence were a Tribute or Alms granted first by Ina King of the West-Saxons yearly at Lammas to be gathered from as many as ' had thirty pence as we read it in the Confessor's Laws ' of live mony in their house These were duly at a set time paid in till the time of Henry the eighth when he set the Government free from the Papal Tyranny About which time Polydore Virgil was upon that account in England Treasurer or Receiver general I thought fit to set down an ancient brief account of these pence out of a Rescript of Pope Gregory to the Arch-Bishops of Canterbury and York in the time of King Edward the second Diocess li. s. d. Canterbury 07 18 00 London 16 10 00 Rochester 05 12 00 Norwich 21 10 00 Ely 05 00 00 Lincoln 42 00 00 Coventry 10 05 00 Chester 08 00 00 Winchester 17 06 08 Exceter 09 05 00 Worcester 10 05 00 Hereford 06 00 00 Bath 12 05 00 York 11 10 00 Salisbury 17 00 00 It amounts to three hundred Marks and a Noble that is two hundred Pounds sterling and six Shillings and eight Pence You are not to expect here the murder of Thomas a Becket and the story how King Henry was purged of the crime having been absolved upon hard terms Conveniunt cymbae vela minora meae My little Skiff bears not so great a Sail. CHAP. XV. A Parliament at Northampton Six Circuits ordered A List of the then Justices The Jury to be of twelve Knights
or Borough and before lawful men he cannot deny it afterwards before the Justices And if the same person without Seisin with Seisin in this place is the same as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as we commonly say in our Language taken with the manner shall recognize or acknowledge any thing of this nature before them this also in like manner he shall not be able to deny before the Justices 70. If any one shall dye holding in Frank 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 fealty 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. Whatsoever Free-holder that is a Lay-man shall have in Chattel or in Rent and Revenue to the value of Sixteen Marks let him have a Coat of Male and a Head-piece and a Buckler and a Lance. 86. Whatsoever Lay-person being a Free-man shall have in Chattel to the value of Ten Marks let him have a little Habergeon or Coat of Male and a Capelet of Iron and a Lance. 87. Let all Burghers or Towns-men of a Corporation and the whole Communities of Free-men have a Wambais and a Capelet of Iron and a Lance. 88. Let no one after he hath once had these Arms sell them nor pawn them nor lend them nor by any other way alienate them from himself or part with them nor let his Lord alienate them by any manner of way from his man i. e. his Tenant that holds under him neither by forfeit nor by gift nor by pledge nor by any other way 89. If any one shall dye having these Arms let them remain to his heir and if the heir be not of such estate or age that he may use the Arms if there shall be need let that person who shall have them the heir in custody have likewise the keeping of the Arms and let him find a man who may use the Arms in the service of our Lord the King if there shall be need until the heir shall be of such estate that he may bear Arms and then let him have them 90. Whatsoever Burgher shall have more Arms than it shall behove him to have according to this Assize let him sell them or give them away or so dispose of them from himself to some other man who may retain them in England in the service of our Lord the King 91. Let no one of them keep by him more Arms than it shall behove him according to this Assize to have 92. Let no Jew keep in his possession a Coat of Male or an Habergeon but let him sell them or give them or in some other manner put them away in that wise that they may remain in the service of the King of England 93. Let no man bear or carry Arms out of England unless it be by special order of our Lord the King nor let any one sell Arms to any one who may carry them from England nor let Merchant or other carry or convey them from England 94. They who are suspected by reason of their wealth or great estate do free or acquit themselves by giving their Oaths The Justices have Power or Jurisdiction given them in the case for this purpose If there shall be any who shall not comply with them the Justices the King shall take himself to the members or limbs of such persons and shall by no means take from them their Lands or Chattels 95. Let no one swear upon lawful and free-men i. e. in any matter against or concerning them who hath not to the value of Sixteen or Ten Marks in Chattel 96. Let no one as he loves himself and all that he hath buy or sell any Ship to be brought from England nor let any one carry or cause to be carryed out of England Timber for the building of Ships 97. Let no one be received or admitted to the Oath of bearing Arms ' but a Free-man To bring once for all something concerning a Free-man that may not be beside the purpose The ancient Law of England bestowed that name only upon such persons as many as either being honoured by the Nobility of their Ancestors or else out of the Commonalty being of ingenuous Birth to wit of the Yeomanry did not hold that rustick fee or Tenure of Villenage dedicated to Stercutius the God of Dunghils and necessarily charged and burthened with the Plough tail the Wain and the Dray which are the hard Countrey-folks Arms and Implements To this purpose makes the term of Rustick or Countrey-man above mentioned in the Statutes of Clarendon and the place of Glanvill cited in the Tryal of Ordeal That the business may be more clearly asserted a Suit of Law being waged in the time of Edward the First betwixt John Levin Plaintiff and the Prior of Bernwell Defendant I have taken the Story out of an old Manuscript and the Reports of our Law and the Collection or Body of the Royal Rescripts do agree to it it was then after several disputes bandied to and fro and with earnestness enough decided by the judgement of the Court that those Tenants which hold in fee from the ancient Domain of the Crown as they call it are by no means comprehended under the title of free-men as those who driving their labour around throughout the year pay their daily Vows to Ceres the Goddess of Corn to Pales the Goddess of Shepherds and to Triptolemus the Inventer of Husbandry or Tillage and keep a quarter with their Gee Hoes about their Chattel And now death hath put an end to King Henry's Reign And I also having made an end of his Laws so far as Histories do help me out do at the last muster and arm my Bands for the guard of my Frontiers I wish they may be of force enough against Back-biters CHAP. XIX Of Law-makers Our Kings not Monarchs at first Several of them in the same County The Druids meeting-place where Under the Saxons Laws made in a general Assembly of the States Several instances This Assembly under the Normans called Parliament The thing taken from a custome of the ancient Germans Who had right to sit in Parliament The harmony of the Three Estates BUt however Laws are not without their Makers and their Guardians or they are to no purpose It remaineth therefore that we say somewhat in general of them They are made either by Use and Custom for things that are approved by long Use do obtain the force of Law or by the Sanction and Authority of Law-givers Of ancient time the Semnothei the Kings and the Druids were Law-givers amongst the Britans I mean Concerning the Semnothei whatsoever doth occurr you had before The Kings were neither Monarchs of the whole Island nor so much as of that part of Brittany that belonged to the Angles For there were at the same time over the single County of Kent four Kings to wit Cyngetorix Carvilius Taximagulus and Segonax and at the same rate in other Counties Wherefore we have no reason to make any question but that part wherein we live now called England was governed by several persons and was subject to an Aristocracy according to what Polydore Virgil John Twine
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 thus words it quibus sors tantum contulit extra domos in pascuis ut triginta argenteorum pretium excederet who had an Estate besides Houses in Lands which might exceed the value of thirty silver pence Lin. 15. Out of a Rescript of Pope Gregory We have the whole Letter set down in Spelman which speaks in English thus GREGORY the Bishop Servant of the Servants of God to his Worshipful Brethren the Arch-Bishops of Canterbury and York and to their Suffraegans and to his beloved Sons the Abbots Priors Arch-Deacons and their Officials appointed throughout the Kingdom of England unto whom these Letters shall come Greeting and Apostolical Benediction In what manner the Pence of S. Peter which are due or owing to our Chamber are to be gathered in England and in what Bishopricks and Dioceses they are owing that there may arise no doubt on this occasion we have caused it to be set down in this present Writing according as it is contained in the Register of the Apostolick See Out of the Diocess of Canterbury seven pounds and eighteen shillings sterling Out of the Diocess of London sixteen pounds ten shillings And so of the rest Yeoven at the old City April 22. in the second year of our Popedom There is some difference though in the account of the Dioceses For after Lincoln he leaves out Coventry and puts Chichester for Chester 8 l. and then after Bath he puts in Salisbury and Coventry with a mistake 10 l. 10 s. for 5 s. and leaves York last Besides every body knows there are more Dioceses now than were then This was Gregory the Fifth that wrote this and it was our Author tells us in the time of King Edward the Second But Edward the Third in the year of the Lord 1365. and of his Reign 39. forbad these Peter-pence to be paid any more at Rome or to be gathered any longer in England CHAP. XV. Pag. 81. lin 10. Into six Provinces or Circuits As they are for number still with two Judges a piece though at first three How these differ from what they now are as to the Counties the Reader may easily satisfie himself Here are thirty seven of them as we now reckon only with this difference that Monmouth and Rutland are left out and Richmond and Copland are put in Pag. 82. lin 27. And if he perish i. e. sink let him lose one foot For that in this tryal by water was the sign and proof of guilt if the party thrown in did not swim which is quite contrary in the tryal of Witches as you will find in the next Chapter which treats of Ordeals Lin. 39. The Kings great Assise Assise is a word that hath many significations in our Law It is here in the Title taken for a Statute The Assises i. e. the Statutes and Ordinances of King Henry made at Clarendon But in this place it is used for a Jury and it is either the Great or Grand Assise which serv'd for the right of Property and was to consist of twelve Knights or the Petty Assise which served for the right of Possession only and was made up of twelve lawful men CHAP. XVI Pag. 86. lin 34. The superstitions and fopperies These you have also in Sir H. Spelman with an Incipit Missa Judicii which shews that the Church of Rome did once approve of these Customs which since she hath condemned notwithstanding her pretence of being Infallible I would to God she would deal as ingenuously in throwing off those other errors and corruptions we do so justly charge her with CHAP. XVII Pag. 87. lin 21. Hogenhine Or Agen-hyne that is ones own servant It is written also Home-hyne that is a servant of the house Lin. 33. Holding in Frank Pledge The Latin is francus tenens Wherefore amend the mistake and read holding in Frank Fee For Frank Pledg is a thing of another nature as belonging to a mans Behaviour and not to his Tenure Now Frank Fee is that which is free from all service when a man holds an Estate at the Common Law to himself and his heirs and not by such service as is required in ancient demesne Pag. 88. lin 12. The Falcidian Law So named from one Falcidius who being Tribune of the people in Augustus his time was the Maker of this Law Lin. 33. Twenty pounds worth of Land in yearly revenue So I render 20. libratae terrae For although Cowell in proportion to Quadrantata or Fardingdeal of Land which he saith is the fourth part of an Acre seemâ— at first to gather that Obolata then must be half an Acre Denariata a whole Acre and by consequence Solidata twelve Acres and Librata twenty times twelve that is two hundred and forty Acres Yet this was but a conceit of his own For by having found the word used with reference to Rent as well as Land thus 20. libratas terrae vel reditûs he is forced to acknowledge that it must signifie so much Land as may yield twenty shillings per annum To which opinion Spelman also givâ— his assent But what quantity of Land this Librata terrae is cannot so easily be determined Cowell out of Skene tells us it contains four Oxgangs and every Oxgang thirteen Acres if so then it is fifty two Acres and twenty of them which make a Knights fee come to one thousand and forty Acres which somewhat exceeds the account here set down of six hundred and eighty out of the Red Book of the Exchequer But there is a great deal of more difference still as the account of the Knights fée is given by others In one Manuscript we read that A Yardland contains twenty four Acres four Yard-lands make one Hide that is ninety six Acres and five Hides make a Knights fee that is four hundred and eighty Acres the Relief whereof is a hundred Shillings Another Manuscript hath it thus Ten Acres according to ancient custom make one Fardel and four Fardels that is forty Acres make a Yardland and four Yardlands that is one hundred and sixty Acres make one Hide and four Hides that is six hundred and forty Acres make one Knights fee. A third reckons it otherwise that sixteen Yard-lands make a whole Knights fee which if we make a Yard-land to be twenty four Acres according to the first account comâ—s to three hundred eighty four Acres but if according to the second we take it for forty Acres it amounts to six hundred and forty Acres And saith he when they are taxed at six Shillings four Pence that is every of
is a Fury others called Themis the Goddess of Justice To be brief and plain the Furies that is the Avenging Goddesses sit upon the skirts of the wicked but the Eumenides that is the kind Goddesses as Sophocles interprets them for that they were so called properly without the Figure of Antiphrasis or contradiction he is our Author do attend the good and such as are blameless and faultless and poor suppliants Nay moreover Plutarch writes in a Poetick strain that Alcmaeon fled from these Eumenides meaning in very deed that he made his escape from the Civil Magistrates In a word the whole business we have been aiming at Orpheus compriseth in two Verses of that Hymn he has made upon those Goddesses 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which in a short Paraphrase speaks thus But ye with eye of Justice and a face Of Majesty survey all humane race Judges commission'd to all time and place See here plainly out of the most ancient Divine among the Heathens how Judges and the Dispensers of Law pass under the notion of these Venerable Goddesses and it was a thing of custom to term the Right of the Infernal Powers as well as the Doctrine of the Heavenly ones a thing Holy and Sacred What hinders then I pray but that one may guess that the Name and Title and Attributes or Characters of the Semnothei sprang forth and flowed from hence to wit from the Semnai theai or Venerable Goddesses Homer in his Poems calls Kings 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is persons bred and nourished by Jove yea the Eternal and Sacred Scriptures themselvs do more than once call Judges by that most holy name Elohim that is Gods The judgement is Gods not Mans and as Munster remarks out of Rabbi Kimchi whatsoever thing Scripture designs to magnifie or express with hight it subjoyns to it the name of God God as Plutarch has it out of Plato who in his Attick styl◠imitates our Moses hath set himself out as a pattern of the Good the dreadful syllables of whose very not-to-be-uttered Name though we take no notice of the Cabalists art do strike move and twitch the ears of Mortals and one while when thorough ignorance they straggle out of the way do bring them back into the path or track of Justice another while when they are stopt up with prejudice and are overcast with gloomy darkness do with a stupendous dismal and continual trembling shake the poor wretches and put them into Ague-sits Nor let that be any hindrance that so splendid and so manly a name is taken from the weaker Sex to wit the Goddesses Let us more especially have to do with the Britans as those amongst whom are those choice and singular Altars not any where else to be met with in the whole World with this Inscription DEIS MATRIBUS To the Mother-Goddesses Concerning these Mother-Goddesses that excellent Learned Man that I may hint it by the by confesses he could with all his search find out nothing but if such a mean person as I may have leave What if one should imagine that those Goddesses whom Pausanias in his Attick stories calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 were the same as these Mother Goddesses for so those Names import The Mother of the Gods is a Title well known wherewith not only Berecynthia but also Juno Cybele Tellus Ceres and other Shee s among Mythologists are celebrated and made famous Be this if you will a thing by the by and out of the way as he tells us No great Wit ever pleased without a pardon Relying upon that the Readers Pardon I mean I undertook this Job whatever it is and upon confidence of that I come back to the business CHAP. III. One Law of Samothes out of Basingstoke concerning the reckoning of Time by Nights Bodinus his censure of Astrologers for otherwise computing their Planetary Hours A brief account of some of Samothes his Successors Magus Sarron Druis from whom the Druids c. WE do not any where meet with any Law enacted by Samothes his authority Yet one only one concerning the account of times Basingstoke the Count Palatine a very modern Historian attributes to him He defined sayes he the spaces or intervals of all time not by the number of dayes but of nights the same thing saith Caesar of the Gauls and Tacitus of the Germans and be observed birth-dayes and the commencements of months and years in that order that the day should come after the night Truth is the Britans do at this time observe that fashion which is most ancient and highly agreeable to Nature And the Evening and the Morning was the first day and so on sayes the Hebrew Writer whose Countrey-men the Jews also followed this custom The Peripateticks i. e. the followers of Aristotle do also at this rate reckon Privation in the number of their three Principles and hereupon John Bodin adventures to censure the common Astrologers that they according to the course of the Planets as they order it and repeat it over and over begin their unequal hours from the rising rather than the setting of the Sun They write that after this Samothes there came in play Magus Sarran Druis Bardus and others more than a good many in order of succession Sarron was not addicted to make Laws 't is Stephanus Forcatulus helps us to this but to compose them to put them into order and to recommend them to practice as one who reduced those Laws which his Grand-father Samothes and afterward his Father Magus had made into one Volume and with severe Menaces gave order for the keeping of them From Druis or Druides they will have the Druids so called a sort of Philosophers so much famed and talked of in Caesar Pliny and others believe it who list for me The whole business of the Druids at present I put off till Caesar's times CHAP. IV. K. Phranicus 900. Years after Samothes being to reside in Pannonia intrusts the Druids with the Government In the mean time Brutus Aeneas his Grand-son arrives and is owned King by the Britans and builds Troynovant i. e. London Dunvallo Molmutius 600. years after is King and makes Laws concerning Sanctuaries Roads or High-wayes and Plow-lands K. Belin his Son confirms those Laws and casts up four great Cause-wayes through the Island A further account of Molmutius ABout Nine hundred years after Samothes King Phranicus take it from the British story and upon the credit of our Jeoffry intrusts the Druids with the management of affairs whilst he himself resided in Pannonia or Hungary In the mean time Brutus the Son of Sylvius Posthumus King of the Latines and Grand-child to Aeneas for Servius Honoratus in his Comment upon Virgil makes Sylvius to be the Son of Aeneas not of Ascanius being happily arrived by Shipping with Corinus one of the chief of his company and coming to land at Totnes in Devonshire the Britans
Verses which Joseph Scaliger has rescued out of its rust and mouldiness has it Mars pater nostrae gentis tutela Quirine Et magno positus Caesar uterque polo Cernitis ignotos Latiâ sub Lege Britannos c. that is in English Sire Mars and Guardian of our State Quirinus hight after thy fate And Caesars both plac'd near the Pole With your bright Stars ye do behold And th' unknown Britans aw T' observe the Roman Law The stately Seraglio or Building for the Emperours Women at Venta Belgarum a City at this day called Winchester and other things of that kind I let pass In the time of the Emperours Vespasian Titus and Domitian Julius Agricola Tacitus his Wives Father was Lord Deputy Lieutenant here He encouraged the Barbarous people to Civil fashions insomuch that they took the Roman habit for an honour and almost every body wore a Gown and as Juvenal has it in his Satyr Gallia Causidicos docuit facunda Britannos The British Lawyers learnt of yore From the well-spoken French their lore T'imply hereafter we should sée Our Laws themselves in French would be CHAP. XVI In Commodus his time King Lucy embraces the Christian Religion and desires Eleutherius then Pope to send him the Roman Laws In stead of Heathen Priests he makes three Arch-Bishops and twenty eight Bishops He endows the Churches and makes them Sanctuaries The manner of Government in Constantine's time where ends the Roman account IN Commodus the Emperours time the Light of the Gospel shone afresh upon the Britans Lucius the first King of the Christians for the Romans as in other places so in Britany made use of even Kings for their instruments of slavery by the procurement of Fugatius and Damianus did happily receive from Pope Eleutherius the Seal of Regeneration that is Baptism and the Sacred Laws of eternal salvation He had a mind also to have the Civil Laws thence and desired them too Ovid long since had so prophesied of Rome Juráque ab hâc terrâ caetera terra petet that is And from this Countrey every other Land Their Laws shall fetch and be at her command Now Eleutherius wrote him this answer You have desired of us that the Roman and Caesarean Laws may be sent over to you that you may as you desire use them in your Kingdom of Britanny The Roman and Caesarean Laws we may at all times disprove of but by no means the Law of God For you have lately through Divine mercy taken upon you in the Kingdom of Britanny the Law and Faith of Christ you have with you in the Kingdom both pages of Holy Writ to wit the Old and New Testament Out of them in the name and by the favour of God with the advice of your Kingdom take your Law and by it through Gods permission you may govern your Kingdom of Britanny Now you for your part are Gods Vicegerent in your Kingdom Howsoever by injury of time the memory of this great and Illustrious Prince King Lucy hath been imbezill'd and smuggled this upon the credit of the ancient Writers appears plainly that the pitiful fopperies of the Pagans and the Worship of their Idol-Devils did begin to flag and within a short time would have given place to the Worship of the true God and that Three Arch-Flamens and Twenty Eight Flamens i. e. Arch-Priests being driven out there were as many Arch-Bishops and Bishops put into their rooms the Seats of the Arch-Bishops were at London at York and at Caerleon in Wales to whom as also to other Religious persons the King granted Possessions and Territories in abundance and confirmed his Grants by Charters and Patents But he ordered the Churches as he of Monmouth and Florilegus tell us to be so free that whatsoever Malefactor should fly thither for refuge there he might abide secure and no body hurt him In the time of Constantine the Emperour whose Pedigree most people do refer to the British and Royal Blood the Lord President of France was Governour of Britanny He together with the rest those of Illyricum or Slavonia of the East and of Italy were appointed by the Emperour In his time the Lord Deputy of Britanny whose Blazonry was a Book shut with a green Cover was honoured with the Title of Spectabilis There were also under him two Magistrates of Consular Dignity and three Chief Justices according to the division of the Province into five parts who heard and determined Civil and Criminal Causes And here I set up my last Pillar concerning the Britans and the Roman Laws in Britanny so far forth as those Writers which I have do supply me with matter CHAP. XVII The Saxons are sent for in by Vortigern against the Scots and Picts who usurping the Government set up the Heptarchy The Angles Jutes Frisons all called Saxons An account of them and their Laws taken out of Adam of Bremen AFterwards the Scots and Picts making incursions on the North and daily havock and waste of the Lands of the Provincials that is those who were under the Roman Government they send to desire of the Romans some Auxiliary Forces In the mean time Rome by a like misfortune was threatned with imminent danger by the fury of the Goths all Italy was in a fright in an uproar For the maintaining of whose liberty the Empire being then more than sinking was with all its united strength engaged and ready prepared So this way the Britans met with a disappointment Wherefore Vortigern who was Governour in Chief sent for supplies from the neighbouring Germans and invited them in But according to the Proverb Carpathius leporem He caught a Tartar for he had better have let them alone where they were Upon this account the Saxons the Angles the Jutes the Frieslanders arrive here in their Gally-Foists in the time of Theodosius the younger At length being taken with the sweetness of the soil a great number of their Countrey-men flocking over after them as there were at that time fatal flittings and shiftings of quarters all the World over and spurred on with the desire of the chief command and rule having struck up a League with the Picts they raise a sad and lamentable War against their new entertainers in whose service they had lately received pay and to make short in the end having turned the Britans out of their Ancestors Seats they advanced themselves into an Heptarchy of England so called from them Albeit they pass by various names yet in very deed they were all of them none other but Saxons A name at that time of a large extent in Germany which was not as later Geographers make it bounded with the Rivers of the Elb of the Rhine and the Oder and with the Confines of Hessen and Duringen and with the Ocean but reached as far as into the Cimbrian Chersonesus now called Jutland It is most likely that those of them that dwelt by the Sea-side came over
people Nor do they hold on never to be appeased For even Murder is expiated by a certain number of some head of Cattel and the whole Family of the murdered Person receives satisfaction Murders formerly were bought off with Head-mony called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 though one had killed a Nobleman nay the King himself as we may see in Athelstan's Constitutions But good manners I suppose have prevailed above Laws 33. The Lord imposes upon his Tenant a certain quantity of Corn or Cattel or Clothes We see here clearly enough the nature of Country Land-holders Fees or Tenures As to military or Knights Fees give me leave to set that down too Dionysius Halicarnasseus gives us a very ancient draught and model of them in the Trojans and Aborigines Florus in the Cymbrians and Lampridius in Alexander Severus Both the Northern people and the Italians do owe them to the Huns and Lombards but these later according to a more modern form Let these things suffice out of Cornelius Tacitus which belong to this Head CHAP. XXII Since the return of Christianity into the Island King Ethelbert's Law against Sacriledge Thieves formerly amerced in Cattel A blot upon Theodred the Good Bishop of London for hanging Thieves The Country called Engelond by Order of King Egbert and why so called The Laws of King Ina Alfred Ethelred c. are still to be met with in Saxon. Those of Edward the Confessor and King Knute the Dane were put forth by Mr. Lambard in his Archaeonomia BEfore that the Christian Doctrine had driven out and banished the Saxon Idolatry all these things I have hitherto been speaking of were in use Ethelbert he that was the first King not only of Kent but of all England except Northumberland having been baptized by Austin the Monk the Apostle as some call him of the English amongst other good things which by Counsel and Grant he did to his Nation 't is venerable Bede speaks these words he did also with the advice of wise men appoint for his peoples use the orders of their proceedings at Law according to the examples of the Romans Which having been written in the English tongue says he are hitherto or to this time kept and observed by them Among which orders or decrees he set down in the first place after what manner such an one should make amends who should convey away by stealth any of those things that belonged to the Church or to a Bishop or to the rest of the Orders In the Laws of some that came after him as those of King Alured who cull'd out of Ethelbert's Acts to make up his own and those of King Athelstan Thieves make satisfaction with mony accordingly as Tacitus says of the Germans That for lighter offences those that were convicted are at the rate of their penalties amerced such a number of Horses or other Cattel For as Festus hath it before Brass and Silver were coyned by ancient custom they were fined for their faults so much Cattel But those who medled with any thing sacred we read had that hand cut off with which they committed the theft Well! but am I mistaken or was Sacriledge even in the time of the Saxon Government punisht as a Capital crime There is a passage of William of Malmsbury in his Book de Gestis Pontificum that inclines me to think so Speaking of Theodred the Bishop of London when Athelstan was King he says That he had among the common people got the sirname of Theodred the Good for the eminence of his virtues Only in one thing he fell short which was rather a mistake than a crime that those Thieves which were taken at St. Edmunds whom the holy Martyr had upon their vain attempts tied with an invisible knot he means St. Edmundsbury in Suffolk which Church these Fellows having a design to rob are said by miracle to have stood still in the place as if they had been tied with Cords These Thieves I say were by his means or sufferance given up to the severity of the Laws and condemned to the Gallows or Gibbet Let not any one think that in this middle Age this Gallows or Gibbet I spoke of was any other thing than the Roman Furca upon which people hang and are strangled till they die 34. Egbert King of the West-Saxons I make use of Camdens words having gotten in four Kingdoms by conquest and devour'd the other two also in hope that what had come under the Government of one might likewise go under one name and that he might keep up the memory of his own people the Angles he gave order by Proclamation that the Heptarchy which the Saxons had possest should be called Engelond John Carnotensis writes that it was so called from the first coming in of the Angles and another some body says it was so named from Hengist a Saxon Prince There are a great many Laws of King Ina Alfred Edward Athelstan Edmund Edgar Ethelred and Knute the Dane written in the Saxon language which have lasted till these very times For King Knute gave order 't is William of Malmsbury speaks that all the Laws which had been made by former Kings and especially by his Predecessor Ethelred should under pain of his displeasure and a Fine be constantly observed For the keeping of which even now in the time of those who are called the Good people swear in the name of King Edward not that he appointed them but that he observed them The Laws of Edward who for his piety has the sirname of Confessor are in Readers hands These of the Confessor were in Latin those others of Knute were not long since put into Latin by William Lambard a learned man and one very well vers'd in Antiquity who has recovered them both and published the Saxon Original with his Translation over against it Printed by John Day at London Anno 1567. under the Title of Archaeonomia or a Book concerning the ancient Laws of the English May he have a good harvest of it as he deserves From Historians let us borrow some other helps for this service CHAP. XXIII King Alfred divides England into Countyes or Shires and into Hundreds and Tythings The Original of Decenna or Court-leet Friburg and Mainpast Forms of Law how People were to answer for those whom they had in Borgh or Mainpast 35. INgulph the Abbot of Crowland writing of King Alfred says That he was the first of all that changed the Villages or Lordships and Provinces of all England into Counties or Shires Before that it was reckoned and divided according to the number of Hides or plough-Plough-lands by little districts or quarters He divided the Counties into Hundreds and Tythings it was long before that Honorius Arch-Bishop of Canterbury had parted the Country into Parishes to wit Anno 636. that every Native home-born lawful man might be in some Hundred and Tything I mean whosoever was â—ull twelve years of age and if any
to have it so understood 38. King Edgar like a King of good Fellows or Master of Revels made a Law for Drinking He gave order that studs or knobs of Silver or Gold so Malmsbury tells us should be fastned to the sides of their Cups or drinking Vessels that when every one knew his mark or boundary he should out of modesty not either himself covet or force another to desire more than his stint This is the only Law 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 Oars 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 present 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 Ethelbald 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 Theodore 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 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 loquor Oret pro nobis sanctissimus iste Sacerdos Ad tumbam cujus haec mea dona 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 sight 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 hè 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
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' bold 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 Hauberk 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 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 Domains acquitted 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 Lombard 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 the Rapines Thefts and Rogueries of the Courtiers ordering that those who were caught in such pranks should have their Eyes with their Stones pulled out This Malmesbury supplies us with But Florentius of Worcester and Roger Hoveden give the account that he punished Thieves with Death and Hanging otherwise than that pleasant and curious man Thomas Moor in his Vtopia would have his people to be dealt with Yet I am inclined rather to believe Malmesbury not only upon the authority of the man in comparison of whose Rose-beds if you well weigh the Learning of that Age the other pack of Writers are but sorry low shrubs but also upon the account of a nameless Monk who in his Book of the Miracles of S. Thomas of Canterbury tells us a story of one Eilward a poor mean fellow of Kingsweston in Berkshire who being in the Reign of King Henry the Second condemned of Theft he had it seems stoln a pair of Countrey Gloves and a Whetstone was punished by losing his Eyes and Privities who coming with devotion to S. Thomas his Tomb got an intire restitution of his disappearing Members and Faculties and was as good a man as ever he was Perchance in this he is no witness of infallible credit Let the story of Iphis and Ianthis and that of Ceneus try Masteries with this for the Whetstone to our purpose the Writer is trusty enough But in the first times of the Normans I perceive that the Halter was the ill consequence of Theft Let it be lawful for the Abbot of that Church if he chance to come in in the God speed to acquit an High-way-man or Thief from the Gallows They are the words of the Patent with which William the Conquerour to expiate the slaughter of Harald consecrated a Monastery to S. Martin near Hastings on the Sea-coast of Sussex and priviledged it with choice and singular rights 31. Against Cheats whom they commonly call Coyners 't is Malmesbury speaks again he shewed his particular diligence permitting no cheating fellow to escape scot-free without losing his Fist or Hand who had been understood to have put tricks upon silly people with the traffick of their falshood For all that he who hath tackt a supplement to Florentius of Worcester and William Gemeticensis give out that the Counterfeiters and Imbasers of Coin had over and above those parts cut off which Galen accounts to be the principal instruments for propagating of the kind To whom Hoveden agrees who writes in the Life of Henry the First That Coyners by the Kings order being taken had their right Hâ—nds and their Privy-members cut off Upon this account sure that he that was guilty of such a wicked crime should have no hope left him of posterity nor the Common-wealth be in any further fear of those who draw villainous principles from the loins of those that beget them Now at this very time and in former Ages too this piece of Treason was punished with Halter and Gallows and that also of Theft not only in England but almost in all Countreys especially Robbery upon the High-way which is committed by those who lay wait to surprize Passengers as they travel along upon one or other side of them whence not only in the Latin but in the holy Language also a High-way-man hath his name And truly among the Ancients guelding was lookt upon as a kind of death The Apostles Canons give him the character and censure of a Manslayer who cuts off his own Privities who lives all his life a Batchelor say the Talmudists and he who cuts off another mans is in danger of the Cornelian Law concerning Murderers and Cut-throats and so was it heretofore among the English 32. He ordered they are Hoveden's words that no half-penny which also he commanded should be made round or farthing also if it were intire should be refused 33. He corrected the Merchants false Eln so sayes the Monk of Malmesbury applying the measure of his Arm and proposing that to all people over England 34. He gave order to the Courtiers in whatsoever Cities or Villages he were how much they were to take of the Countrey people gratis and at what price to buy things punishing offendors herein either with a great Fine of money or with loss of life CHAP. VIII The Regality claimed by the Pope but within a while resumed by the King The Coverfeu dispensed with A Subsidy for marrying the Kings Daughter The Courtesie of England Concerning Shipwrack A Tax levied to raise and carry on a War 35. ANselm Arch-Bishop of Canterbury labours earnestly with the Pope and his party and at length obtains it with much ado that from that time forward you have it in Florilegus after other Writers never any one should be invested with a Pastoral Staff or a Ring into a Bishoprick or Abbacy by the King or any Lay-person whatsoever in England added out of Malmesbury retaining however the priviledge of Election and Regality There was a sharp bickering about this business betwixt the King and Anselm and so between the Popes Paschalis and Calixtus and Henry about that time Emperour Both of them at least pretendedly quit their right our King humouring the Scene according to the present occasion For after Anselm's death he did invest Rodulphus that came in his room by a Ring and a Pastoral Staff 36. He restored the Night-Torches or Lights which William the First had forbidden forasmuch as he now had less reason to apprehend any danger from them the Kingdom being in a better and firmer posture 37. To make up a portion for Mawd the Kings Daughter married to Henry the Emperour every Hide of Land paid a Tribute of Three Shillings Here Polydore makes his descant Afterward sayes he The rest of the Kings followed that course of raising Portions for the bestowal of their Daughters so tenacious hath posterity alway been of their own advantages It is scarce to be doubted that the right of raising money for the marrying of the Lords Daughters by way of Aid or Subsidy upon the Tenants or Dependants is of a more ancient original Neither would I fetch it from the mutual engagement of Romulus his Patrons and Clients or Landlords and Tenants or from Suetonius his Caligula rather from the old Customs of the Normans more ancient than King Henry where that threefold Tribute is explained by the name of Aid which the Patent granted by King John in favour of publick liberty mentions in these words I will impose no Escuage or
First Jeoffrey de Magna Villa made Earl of Essex by Mawd the Empress It seems that the Saxon Earls had the self-same right of sharing with the King So in Doomsday Book we find it The Queen Edeua had two parts from Ipswich in Suffolk and the Earl or Count Guert the third and so of Norwich that it paid Twenty Pound to the King and to the Earl Ten Pound so of the Revenues of the Borough of Lewes in Sussex the King had two shares and the Earl the third And Oxford paid for Toll and Gable and other customary Duties Twenty Pound a year to the King besides Six Quarts of Honey and to Earl Algar Ten Pound To conclude it appears also that these Norman Earls or Counts had some power of making Laws to the people of their Counties For instance the Monk of Malmesbury tells us that the Laws of William Fitz-Osborn Earl of Hereford remained still in force in the said County that no Souldier for whatsoever offence should pay above Seven Shillings The Writings and Patents of the men of Cornwall concerning their Stannaries or Tinn-Mines do prove as much nor need I tell the story how Godiva Lady to the Earl Leofrick rid on Horse-back through the Streets of Coventry with her hair disshevelled all hanging about her at full length that by this means she might discharge them of those Taxes and Payments which the Earl had imposed upon them Out of the Countreys wherein all Estates were subject to Military Service the Barons had their Territories as we call them Mannors and in them their Courts to call their Tenants together at the end of every three Weeks and to hear and determine their Causes A Civilian one Vdalricus Zazius would have the original of these Courts among other Nations to have come by way of imitation from Romulus his making of Lords or Patrons and their Clanns or Tenants The use of them at this day is common and ordinarily known But to shew how it was of old we will borrow out of Hoveden this spark of light John Marshall complained to Henry the Second that whereas he had claimed or challenged in the Arch-Bishops Court a piece of Land to be held from him by right of inheritance and had a long time pleaded upon it he could obtain no Justice in the case and that he had by Oath falsified the Arch-Bishops Court that is proved it to be false by Oath according to the custom of the Realm to whom the Arch-Bishop made answer There has been no Justice wanting to John in my Court but he I know not by whose advice or whether of his own head brought in my Court a certain Toper and swore upon it that he went away from my Court for default of Justice and it seemed to the Justices of my Court that he did me the injury by withdrawing in that manner from my Court seeing it is ordained in your Realm that he who would falsifie anothers Court must swear upon the holy Gospels The King not regarding these words swore that he would have Justice and Judgement of him and the Barons of the Kings Court did judge him to be in the Kings Mercy and moreover they fined him Five Hundred Pound As to doing Justice in all other Cases and managing of Publick Affairs the Normans had almost the same Names and Titles of Officers and Offices as the Saxons had FINIS A Brief CHRONOLOGY TO Attend and Assist THE HISTORY In the Year of the WORLD Â 1910. Samothes if there ever were such a man bears rule 2805. Brutus makes a descent that is lands with his Trojans in Cornwall or Devonshire 3516. Dunvallo Molmutius swayes the Scepter 3627. Martia Dowager of King Quintilen is Queen Regent during the Minority of her Son Sisillius the First 3942. Caius Julius Caesar arrives at Deal on the Sea-Coast of Kent and Territa quaesitis ostendis terga Britannis that is Having inquiry made After the Britans bold He turn'd his back 't is said His courage would not hold and was the first that discover'd Britanny to the Romans In the Year of CHRIST Â 44. Claudius Caesar Emperour sends over Aulus Plautius with an Army as his Lieutenant General and by degrees reduceth the Countrey into the form of a Roman Province 52. A Colony of Veterans or old Roman Souldiers is sent down to Maldon in Essex 86. Britanny is subdued or brought under the yoke by the Conduct of Junius Agricola in the time of Domitian the Emperour 183. Lucius or King Lucy was the first Christian King Forasmuch as he was of the same standing with Pope Eleutherius and the Emperour Commodus Whence it appears that Beda makes others mistake and is himself mistaken in his wrong account of time in this affair 428. The Saxons Angles Jutes Danes Frisons or Friselanders arrive here from Germany Taurus and Felix then Consuls in the one and twentieth year of Theodosius the younger The common or ordinary account of Writers sets it down the four hundred forty ninth year but that great man both for Authority and Judgement William Camden Clarenceaux King at Arms hath upon the credit of ancient Records closed this Epoch or Date of time within that term of years which I have set in the Margin 561. King Ethelbert the First King of the English Saxons who profest Christianity 800. King Egbert 872. King Alured or Alfred 959. King Edgar 1017. Canute or King Knute the Dane 1036. Harold eldest Son to King Knute called for his swiftness Harefoot 1042. Edward the Confessor after whom Harold Son to Godwin Earl of Kent usurp't the Throne where he continued only nine Months 1066. William Duke of Normandy after a Battel fought upon the Plain near Hastings got the Dominion or Soveraignty of the British Island 1088. William Rufus second Son of the Conquerour 1100. Henry the First younger Brother to Rufus 1135. King Stephen Count of Blois in France Nephew to Henry by his Sister Adela 1153. Henry the Second Grand-child to Henry the First by his Daughter Mawd the Empress and Jeoffrey Count of Anger 's in France FINIS BRIEF NOTES UPON Some of the more Difficult Passages IN THE TITLE-PAGE COmmon and Statute Law So I render Jus Prophanum as Prophane is opposed to Sacred and Ecclesiastical as himself explains the term in his Preface out of Festus Otherwise it might have been render'd Civil Law as relating to Civil affairs and the Government of State not medling with the Canons and Rules of the Church but that the Civil Law with us is taken generally in another sense for the Imperial Law which however practised in several other Nations hath little to do in England unless in some particular cases Of English Britanny that is that part of Britain which was inhabited by the Angles in Latin called Anglo-Britannia by us strictly England as for distinction the other part of the Island Wales whither the Welsh the true and ancient Britans were driven by the Saxons
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 is the Hall of the Gild or Society such as was once the Stilyard called Gildhalla Teutonicorum the Gild-hall for the Dutch Merchants from the Hanse-Towns CHAP. VII Pag. 63. lin 25. Iphis and Ianthis and Ceneus Persons mention'd by Ovid who changed their Sex from Female to Male. Iphis was a Maid of Creet who after her Metamorphosis when she turn'd to Man took Ianthe to Wife and Caenis for that was her Maiden Name was a Thessalian Girl whom Neptune made a Whore of first and then at her request a Man who thenceforward went by the Name of Caeneus Lin. 34. Cheats whom they commonly call Coyners In Malmesbury's Latin Trapezitas quos vulgò Monetarios vocant Which bare citation is all the account that Spelman gives of the word Monetarius It doth properly signifie an Officer of the Mint that makes and coyns the Kings money a Monier But here by the Historian's implying that such fellows as this Law was made against were falsarii Cheats and by our Author 's terming of them adulteratores monetae Counterfeiters of Coyn we must understand them to be False Coyners Clippers Washers Imbasers of the Kings Coyn and the like And therefore I render'd trapezitas which otherwise is a word of innocent meaning for Money-Changers Bankers c. in the Historian's sense Cheats CHAP. VIII Pag. 65. lin 24. Every Hide of Land It is so called from the Saxon word hyden to cover so that thus it would be the same as Tectum in Latin a Dwelling-house And thus I question not but there are several houses called The Hide for I know one or two my self so called that is the Capital Messuage of the Estate Nor is it so confined to this sense but that it takes in all the Lands belonging to the Messuage or Manour-house which the old Saxons called hidelandes and upon some such account no doubt Hidepark had its name as a Park belonging to some great House Now as to the quantity how much a Hide of land is it is not well agreed Some reckon it an hundred Acres others thereabouts by making it contain four Yardlands every Yardland consisting of twenty four Acres The general opinion is that it was as much as could be ploughed with one Plow in a year terra unius aratri culturae sufficiens And thus it should be much what the same as Carrucata terrae i. e. a Plough-land From Bede who translates it familia they gather it was so much as could maintain a family There is mention made of these Hides in the Laws of King Ina an hundred years before King Alfred who divided the Countrey into Counties or Shires And Taxes and Assessments were wont to be made according to these Hides up as high as King Ethelred's time in the year of our Lord 1008. Since the Conquest William the First had six shillings for every Hide in England Rufus four Henry the First here three for the marriage of his daughter Pag. 66. lin 8. This right is called Wreck i. e. by which the King claims shipwrack't goods cast on shoar For though by the Law of Nature such things as being nullius in bonis having no Owner every one that finds them may seem to have a right to them yet by the Law of Nations they are adjudged to the Prince as a special priviledge by reason of his dignity Now Wreck or as the French call it Varec properly signifies any thing that is cast on shoar as Amber precious Stones Fishes c. as well as shipwrack't goods from the Saxon wraec i. e. any thing that is flung away and left forlorn though use hath limited the word to the later sense CHAP. IX Pag. 68. lin 6. The Roman Laws were banisht the Realm I suppose there may be some word missing or mistaken in the Latin à regno jussae sunt leges Romanae But that which follows the forbidding of the Books obliged me to that interpretation for why should the Books of those Laws be prohibited if the Laws themselves were as the Latin reading seems to import ordered and ratified by the Realm Wherefore I suppose some mistake or omission and for à regno jussae read à regno pulsae or exulare jussae c. unless you would like to have it thus rendred commanded out of the Kingdom which I confess would be a very odd unusual construction CHAP. X. Pag. 69. lin 39. Three hundred Marks of Gold A Mark weigh'd eight ounces and as Cowell states it out of Stow it came to the value of 16 l. 13 s. 4 d. At this rate three hundred Marks of Gold come to five thousand Pound and to every Bishop five Marks supposing only ten Bishops come to 833 l. 6 s. 8 d. which is a very unlikely summ in this business 'T is true the value of it as of other Coyns and summs might vary And so we find in Spelman that an uncertain Author reckons a Mark of Gold to be worth fifty Marks of Silver But then 't is as uncertain what Marks of Silver he means For if they be such as ours are and as they were in King John's time at 13 s. 4 d. then a Mark of Gold will be of the value of 33 l. 6 s. 8 d. which is just double to the former value of 16 l. 13 s. 4 d. which being resolved into Marks of Silver makes but 25. But in ancient times a Mark of Silver was only 2 s. 6 d. so that fifty of them will make but 6 l. 5 s. Another instance we meet with where one Mark of Gold is accounted equivalent to ten Marks of Silver which taking a Mark for 13 s. 4 d. comes to 6 l. 13 s. 4 d. Another where nine Marks of Silver pass for one Mark of Gold in a payment to the King which is just six pound And these three last accounts agree pretty well together Taking the middlemost of the three viz. a Mark of Gold at ten Marks of Silver thus the above named summ of three hundred Marks of Gold that is three thousand Marks of Silver amounts to two thousand Pound and the five Marks to every Bishop supposing but ten Bishops come to 333 l. 6 s. 8 d. But if we take these Marks of Silver at 2 s. 6 d. the account will grow much less For ten such Marks are but 1 l. 5 s. so that the three hundred Marks of Gold at this rate will come but to 375 l. Sterling But that these Marks of the ancient and lower estimate are not here intended may probably enough be gathered from one passage more
the sixteen Yard-lands which make up the Fee at so much they make the summ of one hundred Shillings or five Pound which was the ancient Relief of a Knights fee. But this is a mistake either of the Author or the Citation it is six Shillings three Pence which makes that just summ from whence we learn also what proportion was observed by the Lord in setting and demanding of the Relief upon the next Heir after his Ancestor's decease Further in the Kings Writ as Glanvil cites it it is said that twelve plough-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 wiâ—h 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-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 〈◊〉 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
vel illius pro praejudicio accipitur XVII Unto the times before Christianity among them was received this is to be referred The first Christian King Ethelbert of Kent Inter caetera as Venerable Bede reporteth bona quae genti suae consulendo conferebat etiam decreta illi judiciorum juxta exempla Romanorum cum consilio sapientum instituit Quae conscripta Anglorum sermone hactenus saith he habentur observantur ab eâ And very many Constitutions yet extant written in the Saxon Tongue are attributed to Ine Alfred Edward Athelstan Edmund Edgar Ethelred and Canutus or Knute translated into Latine and published long since by William Lambard a learned Gentleman with the Laws of Edw. the Confessor so called non quod ille statuerit saith one sed quod observaverit whereunto are joyned divers with title of William the Conqueror which being so there already according to several times in one Volume for that only purpose compiled they only shall here be inserted which as yet lie dispersed in the old Monuments of our Historians XVIII Totius Angliae of King Alured so writeth Ingulphus Abbot of Croyland pagos provincias in Comitatus primus omnium commutavit Comitatus in Centurias i. e. Hundredas in decimas as if he imitated Jethro Moses Father-in-law id est tythingas divisit ut omnis indigena legalis in aliquâ centuriâ decimâ existeret Et si quis suspectus de aliquo latrocinio per suam Centuriam vel decuriam vel condemnatus vel invadiatus poenam demeritam vel incurreret vel vitaret Praefectos verò provinciarum qui antea Vicedomini in duo officia divisit i. e. in Judices quos nunc Justiciarios vocamus in Vicecomites qui adhuc idem nomen retinent XIX Of King Edgar the Monk of Malmesbury writeth thus Quia Compatriotae in tabernis convenientes jamque temulenti pro modo bibendi contenderent ipse clavos argenteos vasis affigi jussit dum metam suam quisque cognosceret non plus subserviente verecundiâ vel ipse appeteret vel alium appetere cogeret Constraint of such as were too indulgent to the desires of their sensual appetite by ingurgitation of brain-smoaking Liquors was by the Greek Zaleucus and so received among the Locrians no less than capital But which hath been always so far from this State that until the third Session of the present Parliament not so much as any pecuniary mulct endeavoured to refrain that temporary and altogether voluntary madness XX. Nulla saith Ingulphus electio Praelatorum erat merè libera Canonica sed omnes dignitates tam Episcoporum quam Abbatum per annulum baculum Regis Curia pro suâ complacentiâ conferebat XXI Chirographa until the Confessor's time fidelium praesentium subscriptionibus cùm crucibus aureis aliisque sacris signaculis firma fuerunt XXII Conferebantur primò saith he but I understand it of the Infancy of the Norman state multa praedia nudo verbo absque scripto vel chartâ tantum cum Domini gladio vel galea vel cornu vel cratere plurima tenementa cum calcari cum strigili cum arcu nonnulla cum sagittâ This somewhat savours of Obertus Orto's form of investiture in his Feudals or his of this and differs much from our strict Livery of Seisin which regularly ought to be made with part of and upon the Land by gift transferred Not unworthy in this place of observation is that Charter of Cedwalla King of Sussex as among old Monuments of evidence belonging to the Arch-bishop of Canterbury I have seen in the Year DCLXXXVII made to Theodore then Archbishop of certain Lands with this subscription Ad cumulum autem Confirmationis ego Cedwalla cespitem terrae praedictae super sanctum altare Salvatoris posui propriâ manu pro ignorantia literarum signum sanctae Crucis expressi subscripsi The like hath Camden out of a Patent made by Withered King of Kent to a Nunnery in the Isle of Thanet But to that form of conveyance which Ingulphus speaks of is thus added Sed haec initio regni sui posterioribus annis immutatus est iste modus The antiquity of deeming the Queen both as Covert and also a sole person with such respective admittance as is commonly agreed upon and the Custome of Land-forfeiture upon Felony committed are both referred to these times The first proved by that learned Chief Justice Sir Edw. Coke out of a Gift made by Aethelswith Wife to King Burghred to one Cuthwulfe her Servant DCCCLXVIII The other from an Example by him published of one Ethesig whose Lands were forfeited to King Ethelred for feloniously stealing one Ethelwine's Swine CHAP. IV. William the First But none of that which under title of his Laws is in Lambard NO sooner was the Norman William circled with the Crown of his Victory but I. Decrevit subjectum sibi populum my Author is Gervase of Tilbury juri scripto legibusque subjicere Propositis igitur legibus Anglicanis secundùm tripartitam earundem distinctionem hoc est Merchenlage this govern'd the Shires of Glocester Worcester Hereford Warwick Oxford Chester Shropshire and Stafford Westsaxenlage hereby were ordered Kent Sussex Surry Barkshire Hamshire Wiltshire Somerset Dorset and Devonshire and Danelage by it York Darby Nottingham Leicester Lincoln Northampton Bedford Buckingham Hartford Essex Middlesex Norfolk Suffolk Cambridge and Huntingdon quasdam reprobavit quasdam autem approbans illis transmarinas Neustriae that is Normandy corruptly for Westriae the opposite to that other part of the division of France Eustrasia leges quae ad regni pacem tuendam efficacissimè videbantur which was not performed without earnest and most humble request of the English For as honouring with respect the Northern stock whence his blood was derived the Danelage he preferred as worthier and better for Government than the mere English But seeming at first inexorable the perswasive remembrance of his Soul which bequeathed him the Kingdom and whose Laws they desired being as the best supposed motive inserted in the Petitions of the conquered he granted so much that from that time veneratae per universam Angliam corroboratae observatae sunt prae caeteris patriae legibus leges Edwardi Regis quae priùs inventae it is Roger of Hoveden's Report constitutae erant in tempore Edgari avi sui II. Fecit describi omnem Angliam the substance hereof is in most of the Monkish histories but Florence of Worcester is the Author I now use quantum terrae quisque Baronum suorum possidebat quot feudatos milites quot carucas quot villanos quot animalia imò quantum vivae pecuniae quisque possidebat in omni regno suo à maximo usque ad minimum quantum redditûs quaeque possessio reddere poterat This Inquisition was returned into his Exchequer and is a Book
former Authors Herbert of Doseham William a Monk of Canterbury John of Salisbury and Alan Abbot of Teukesbury into a just Volume collected Huic libello nostro saith the Author that you may know what work they make here inserere studuimus funestum illud famosum Decreti Chirographum consuetudines viz. illas regias apud Clarendonam promulgatas quas ideò hic interseruimus ut legant secula post futura hinc cognoscant quà m justa quà m perspicua fuerit gloriosi Neomartyris Thomae primò Exilii pòst Martyrii causa What contention after confirmation by Oath of the whole Baronage grew hereupon 'twixt the King and that Canonized Arch-Bishop is in every Chronologer of those times enough declared But it cannot be ungratefully received if both for respect to an old English endeavouring Wit and also for matter form and phrase of relation out of Robert of Glocester be made this superaddition No man ne might thenche the love that there was Bitwene the K. H. and the gode man S. Thomas The diuel had enui therto and set bitwen them feu Alas alas thulke stond vor all to well it greu Uor there had ere ibe kings of Luther dede As W. Bastard and his son W. the rede That Luther Laws made inou and held in al the lond The K. uold not beleue the lawes that he fond Ne that his elderne bulde ne the godeman S. Thomas Thought that thing age right neuer law uas Ne sothnes and custom mid strength up ihold And he wist that vre dere Lourd in the Gospel told That he himselfe was sothnes and custum nought Theruore Luther custumes he uould graent nought Ne the K. uould bileue that is elderne ad ihold So that conteke sprung bituene them manifold The K. drou to right law mani Luther custume S. Thomas thom withsed and granted some The Lawes that icholle now tell he granted vawe Zuf a yuman hath a sone to clergi idraw He ne sall without is lourdes icrouned nought be Uor yuman ne mai nought be made agen is lourds will free In the eighteenth of Clarendon Customs is the substance of this particular wher 's Rusticorum interpreted Yumen in this Poet is mentioned To both as a Synonymy is homines used as well in the Law-Annals of later times and in Writs of Ven. fac xii tam milites quam alios liberos legales homines de vicineto c. as in older Constitutions before expressed Gemen is the common allowed Saxon root whence our now usual name of Yeoman had his beginning but my conceit with a painted imposture deceives me if the ancient Latin be not Father of both but in a Dialect different Nor let it be a fault ad Appios Coruncas redire some taste in Yeomen is of Homines but more of Hemones which in Ennius and Festus is not otherwise significant than Themen in English altered only in Character in gemen the Saxon word But to my Law-rhythms again Another thing he granted eke as ye mow nouise Yuf a man of holi Chirch hath eni lay fee Parson other what he be he ssal do therevore Kings service that there ualth that is right ne be vorlore In plaiding and in assise be and in judgement also Bote war man ssal be bilemed other to deth ido He granted eke yuf eni man the Kings traitor were And eni man is chateux to holi chirch bere That holi chirch ne solde nought the chateux there let That the K. there other is as is owne is ne wette Uor all that the felon hath the Kings it is And eche man mai in holi church is owne take iwis He granted eke that a chirche of the Kings fe In none stede ene and ever ne ssold igiue be As to hous of religion without the Kings leve And that he other the patron the gift first gave S. Thomas granted well these and other mo And these other he withsede that did him well woe I. Yuf bituene twei leud men were eni striving Other bituene a leud and a clerc for holi chirch thing As vor vouson of chirch whether shold the chirch give The K. wold that in his court the ple ssold be driue Uor as much as a leud man that the o parti was Chanliche was under the K. under no bishop nas What he styles Lewedmen is by our common phrase Lay-men Leudes in the old Teutonique and Saxon as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Greek from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. a Stone referred as Pindar hath it to that mythick instauration of hard mankind by Deucalion and Pyrrha is equivalent to the Multitude or common people in the present English For yef a Priest be foule on whome we trust No wonder is a leude man to rust But then the ignorant are by it noted rather than who are not Clerks For the same Jeoffrey in another place saith This every leud Uicar and Parson can say Robert of Glocester speaks again II. Another was no bishop ne clerc nathe mo Ne ssolde without Kings leue out of this lond go And than hii ssolde suere upe the boke ywis That hii ne sold purchas no uvel the K. ne none of is III. The thrid was yuf eni man in mausing were ibrought And suth come to amendment ne age were nought That he ne suore up the boc ac borowes find solde To stand to that holy Chirch there of him toky wold IV. The verth was that no man that of the K. huld ought In cheife or in eni servise in mausing were ibrought Bote the wardeins of holy chirch that brought him thereto The K. sede or is bailifes wat be ad misdo And loked verst were thei to amendment it bring And vote hii wolde by their leue do the mausing V. The vist was that Bishoprikes and Abbeis also That vacans were of prelas in the K. hand were ido And that the K. sold all the land as is owne take Uort at last that him lust eni prelat there make And than thulke prelat sould in is chapel ichose be Of is clarks which he wuld to such prelate bise And than wan he were ichose in is chapel right there Homage he solde him do ar he confirmed were VI. The sixt was yuf eni play to chapitle were idraw And eni man made is appele yuf me dude him unlaw That to the Bishop from Ercedeken is appele sold make And from Bishop to Arcebissop and suth none other take And but the Ercebissops court to right him wold bring That he sold from him be cluthe bivore the King And from the K. non other mo so that attan end Plaining of holi chirch to the K. shold wend. And the K. amend solde the Ercebissops dede And be as in the Popes stede and S. Thomas it withsede VII The seuenthe was that plaiding that of det were To yeld wel thoru truth iplight and nought ihold nere Althei thoru truth
the elder part of that Law regularly the Probate or Aperture of Wills was before the Praetor And afterward the obsignation insinuation and Probate of them in Rome was before the Magister Census or apud officium Censuale as it were before the Barons of our Exchequer and that continued into later time And the same Officer by the name of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or generalis in Constantinople had the same authority But also afterwards as well the Questor's Seal as that of the generalis became to be used at the obsignation and his authority also in the Probate or Aperture And the Emperour Leo about the year 890. transferred all that herein belonged to the Generalis into the Questor's place yet so that some other Civil Magistrates had the like authority and what was done before these in Rome and Constantinople was in other Cities before their Chief Governours as Defensores or Praefides neither was the Church permitted to have to do with the Insinuation of Testaments but expresly forbidden by a rescript of the Emperour Justin nor is any thing that gives it either among the Novells of the Greek Empire or in the Lombarda or Capitulares which have been reputed as parts also of the Imperial Law CHAP. II. Nor by the Canon Law NEither in any General Council or other part of the received Canon Law doth any Testimony occurr that gives the Church this Intrinsecal Jurisdiction But in the fourth Council of Carthage holden in the year 398. it was ordained Vt Episcopus tuitionem testamentorum non suscipiat And this being then established by two hundred and fourteen Bishops was afterwards made a part of the Decrees or Canon Law collected by Gratian and published and authorized by Pope Eugenius the Third about 1150. and the Gloss upon that Canon interprets tuitio for Aperture or Probate So also Pope Innocent the Fourth understands it publicatio saith he fieri non debet apud Episcopum and he vouches that Law Consulta ducalia tit de Testament to prove it Speculator Hostiensis and others of the same time and generally the rest that follow them make the Civil Law only the square of the Jurisdiction of the Probates and so it is truly affirmed in our Books that the Probate belongs not to the Church by the Spiritual Law neither is any such thing given by any later Bull or Decretal from the Bishop of Rome CHAP. III. The Extrinsecal Jurisdiction by the Civil Law in whom FOr the Extrinsecal Jurisdiction that gave Recoveries of Legacies by the Imperial Civil Law where the Legacies were in pios usus the Bishop of the Diocess sometimes by himself sometimes with the Civil Magistrate provided for the execution of the Testators meaning otherwise the Jurisdiction of Legacies and what else falls under Testamentary disposition was and is the Magistrates only CHAP. IV. In whom by the Canon Law BUt by the Canon Law the general care of execution of Testaments is committed to the Bishop yet I find not any Canon to that purpose received into the Body of that Law now in authority before the time of the Decretals which have out of some Council of Mentz these words viz. Si haeredes jussa Testatoris non impleverint ab Episcopo loci illius omnis Res quae eis relicta est Canonice interdicatur cum fructibus caeteris emolumentis ut vota defuncti impleantur Out of what Council of Mentz this is taken I have not yet learned but in the same syllables it occurrs in Burchard that lived about six hundred years since with the Marginal Note of ex Concilio Moguntino What other Texts are touching the power of the Canons over performance of Testaments have reference to that course ordained by the Civil Law where any thing was given in pios usus not to a general Jurisdiction for so is the Canon Nos quidem extr tit de testam Neither is that Canon Vltima Voluntas in C. 13. q. 2. taken out of S. Gregory otherwise to be understood if you interpret it as you ought by those places of Gregory whence it is taken but the Canonists generally upon that Canon Si haeredes take it that executio testamentorum ad Episcopos spectat And so those old ones Pope Innocent the Fourth Bernard and others of the rest deliver and the latter follow them yet they commonly restrain it and that in practice in other States to Legacies given in pios usus And in the Council of Trent where twice the Bishops power over Testaments is provided for nothing is spoken of but Commutations of Legacies and of such as are given in pios usus yet from Ancient time both the Intrinsecal and Extrinsecal Jurisdiction of Testaments made of personal Chattels in England hath been and is in the Church except in places where special Custom excludes it the original whereof being not sufficiently found in either of these Laws the Civil and Canon divers parts of which according to the various admission of several Estates have been much dispersed through Christendome and some remain now exercised by imitation among us It rests that disquisition be made for it in the Monuments of the Kingdom that according as they together with the Canons afford light some conjecture may be had touching the Antiquity and ground of it CHAP. V. Of the Intrinsecal Jurisdiction in the Saxons time THe Eldest Testament that I have seen made in England is that of King Edgar's time made by one Birthric a Gentleman or Thane it seems of great worth and his Wife Elswith wherein they devise both Lands and Goods and in the end of the Will sayes her husband 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And I pray for Gods love my leefe Lord that he doe not suffer that any man our Testament do break It may perhaps thence be collected that the Protection or Execution of this Testament was within the Jurisdiction of the Lords Court as also the Probate and that especially because divers Lords of Mannors have to this day the Probate of Testaments by Custom continued against that which is otherwise regularly setled in the Church But the same Testament being for Lands as well as for Goods it may be that this Clause had reference to the Lord in regard of the Land only to the Alienation of which his Assent might be requisite or to denote him for the Testators best friend as one chosen Overseer of his Will and indeed he desires all other good people to see his Will be not broken which makes me only offer it as what another mans fancy may work on but I conceive not out of it enough to prove either way any thing touching the Jurisdiction of Testaments Nor in the Saxon times appears any thing that can sufficiently direct us to know how it was exercised here unless out of that example of Siwerth of Durham's Testament in the
Book of Ely you may collect that the Probate was supply'd in the life-time of the Testator by Inrolment or leaving an Indented Copy of it with the Alderman or Sheriff of the County in whose County-Court the most of proceedings of Temporal Justice and of the Spiritual also for the Bishop sate with him as in his Consistory were in the Saxon times for so much perhaps may be conjectured out of it as we faithfully here relate it Siwerth in King Edgar's time lying sick at Lindane in the Isle of Elie makes his Testament and sends for Brithnorth Abbot of Elie and divers of the Monks and others of the Gentry and the Abbot writes the Testament in tribus Chirographis coram so are the words of the Book cunctis fecit recitari lectumque fecit incidi unamque partem Chirographi retinuit Siferthus Alteram autem dedit Abbati tertiam vero misit statim per praefatum Brithelmum that was one of the Gentlemen of the Countrey then present Ailwino Aldermano qui tunc temporis degebat in Elie petiit ab illo ut suum Testamentum stare concederet quomodo Abbas illud scripserat ordinaverat apud Lindane coram praedictorum Testimonio virorum Cum itaque Ailwinus Alderman hoc audisset Chirographum vidisset remisit illico ad eum Wlnothum de Stowe cum Brithelmo sciscitatusque est ab eo quid aut quomodo vellet de Testamento suo qui mox per eosdâ—m renuntiavit ei sic suum Testamentum absque omni contradictione vel mutatione se velle stare sicut praefatus Abbas illud in Chirographo posuerat quod ut Ailwinus Alderman audivit totum concessit ut staret sicut ipse Siverthus Testatus erat But in deed in it Lands lying in Durham were devised to the Abbey and so it was not only of personal Chattels The Saxon Laws are very silent of any thing touching Testaments and we must remember while we think of that example of Siwerth of Durham that the Ecclesiastical and Temporal Courts of Common Justice held as one by the Sheriff and Bishop were not severed as now into the Consistory and County Court until the Conqueror did it by a Law yet remaining and elsewhere published In what intercedes from this time until about H. 2. I find not any Testimony that gives light to this purpose as the Saxon Laws so those of the Conquerour and of H. 1. and H. 2. mention nothing that tasts of either kind of Jurisdiction of Testaments only of a Charter of H. 1. extant in Matth. Paris and in the Red Book of the Exchequer this occurrs Si quis Baronum vel hominum meorum infirmabitur sicut ipse dabit vel dare jusserit pecuniam suam ita datam esse concedo This may perhaps seem to denote that the Kings Court determined of Legacies especially of the Kings Tenants But indeed it proves not so much But the eldest passage that proves clear enough here is that which makes the Intrinsecal Jurisdiction to have been in the Church and the Extrinsecal in the Kings Court I mean that which is found in the Treatise attributed to Randall of Glanvill Chief Justice under H. 2. where he sayes that if a Legacy be detained the Executors or other friends of the Testator were to get the Kings Writ to the Sheriff commanding quod justè sine dilatione facias stare rationabilem divisum that is the Bequest or Legacy N. sicut rationabiliter monstrari poterit quod eam â—ecerit quod ipsam stare dibeat c. And it is plain by the words there preceding and subsequent that it hath reference to moveable or personal possessions not to Lands c. So that it seems clear by that in H. 2. his time the Jurisdiction of personal Legacies was in Secular Courts But if the Issue in Secular Courts upon that Writ came to be whether the Testament were true or no or well made or whether the thing demanded were in facto bequeathed Tum sayes he placitum illud in Curta Christianitatis audiri debet terminari quià placitum de Testamentis coram Judice Ecclesiastico fieri debet per illorum qui Testamento interfuerint testimonia secundum juris ordinem terminari that is as it must be understood that upon issue of bequeathed or not bequeathed of Testament made or no Testament the Tryal must have been otherwise than by the practice of the latter Law wherein the Testament is traversable and the Traverse tryable in the Kings Court by Certificate to the Temporal Court from the Ecclesiastical as at this day of Institution Bastardy and Profession in Religion and the like and thence may it be well concluded that at this time by the practised Law the Probate or the Intrinsecal Jurisdiction was in the Church for as the Institution Bastardy and Profession are to be certified because within the Bishops Jurisâ—iction Some recorded Testimonies remain of the first and third and the nature of the Marriage or Cohabitation that directs in the second is to be judged of only in the Spiritual Courts so the Validity of the Testament or the truth of this or that particular Legacy was to be certified from the Spiritual Court because the Probate had there proceeded and the Copy there remaining was most authentick otherwise to what purpose should they have sent to the Spiritual Court in such a case But on the other side as in the case of Institution Profession and Bastardy the consequence of them which are objects of their Extrinsecal Jurisdiction as Descent Exclusion from Inheritance gaining it by a descent cast or legal making a Church full or the like are determinable only at the Common Law so the consequence of a Testament that is the Recoveries of Legacies and such like as it seems by that Writ were in the Temporal not in the Spiritual Court I know the authority of that Treatise is suspected and some of the best and ancientest Copies having the name of E. de N. which I have heard from diligent searchers in this kind of Learning affirmed to have been sometimes E. de Narborough and not R. de Glanvilla it hath been thought to be anothers Work and also of later time But as on the one side I dare not be confident that it is Glanvills so I make little question that it is as ancient as his time if not his Work The Tests of the Precedents of Writs under his name the language especially the name of Justitia alwayes for that which we now from ancient time call Justitiarius and Justitia was so used in Writers under H. 2. and the Law delivered in it tasteth not of any later Age. And howsoever it comes to pass the Regiam Majestatem of Scotland published by Command of David the First under the time of our Hen. 1. hath for the most part the same syllables with this supposed Glanvill and expresly the very passages and the