the reign of the Conquerour the which also without all doubt he hath ever since continued Howbeit when I say writings I do not mean he had the authority of making originall writs here before the time of the Conquest for those came out of Normandy also as the very forms of the most of them being expressed in the book of the Norman customes may leade a man to think and that rather also because the Saxons our Ancestors whose proceedings in Judgment was deplano and without solemnty did not use so far as I have hitherto observed to call the parties by any writ or writing but to send for them by certain Messengers which they tearmed Theins that is to say Ministers or Serjeants yea and what that manner of summoning by Writ was brought into use here forthwith committed to the Chancellour For Originall Writs of this time had this form Teste Ranulpho de Glanvilla c. Which was the name of the chief Justice of the Kings Court then under whose sealing they passed abroad Nevertheless for as much as it is to be read in Bracton quod omnia breâ—ia de pace which are prohibitions indeed irrotulari debent in Rotulo de Cancellaria and for that not onely the Statute of Westminster the second which was made in the 15. year of King Edward the first saith in plain words that the for me donne in reverter satis est in usu in Cancellaria and hath often mention of the Clerks there But also that other Statute of articuli super Chartas hath the express names both of the Chancellour and Chancery it must be confessed that the Chancellour had the keeping of the Rolls of Record and the making out of Writs either at the same time that the common lace was erected or not long after that is to say either under the reign of King Henry the third or else in the beginning of King Henry the third or else in the beginning of Edward the first which later King as Judge Prisot reporteth of him laboured carefully to reduce our Law into order and writing and in mine opinion may therefore not unworthily be accounted our English Justinian And albeit that the House of the Rolles which hath been of long time as it were the Colledge of the Chancery men was builded at the first by the same King Henry the third for another purpose namely for the sustentation of such Jews as would give their names to Christ and was thereof called Dominus Judeorum conversorum Mat. Paris yet that hindreth not but that the same House might shortly after be converted to another use upon experience as it is likely that sew converts was found amongst the Jews to inhabite it and then thus have you the Chancellour or now instead of him the Commissioners furnished with the Seal of Grace and Seal of common Justice and with him or them the Chancery for the keeping of Records and the Clerks thereof for the framing of Writs Coment â—43 and as touching the authority in Judgement I see not what Jurisdiction he had his Court of Equity and some powers given by late Statutes onely excepted which is not incident to the making or keeping of Records for he could not reform the errour of another Court yea errour committed in his own Court was reversed in the Bench of the King now called the upper Bench. Neither could he try any Issue taken before him â—4 E. 1. â—5 For that also was and is to be done in the upper Bench as a thing without his Jurisdiction It remaineth then that I speak of this Court of Equity which in my opinion is not altogether so antient as others Os the high Court of Chancery for as you have heard before King Edward the first and the Parliament took order that the Chancellour should follow the King even as the Justices of the Bench did to the end that he might alwaies have at hand all men for his direction in Suits that came before him the meaning hereof as I think was that the Justices should inform him of the Law and the Chancellour of Equity for otherwise I see not what use he could have of the Chancellour in this behalf but onely for that he being commonly a Bishop or other Spirituall person was the more meet after the opinion of men in those dayes to give advice according to equity and conscience In which respect also he was visitor for the King and bestowed his Benefices so that such as then sought relief by Equity were Suitors to the King himself who being assisted with the Chancellour and Counsell did mitigate the severity of Law in his own person when it pleased him to be present and did in absence either refer it to the Chancellour alone or to him and some others of the Counsell And this continued if I be not mistaken untill the 20th year of the reign of King Edward the third in which year when he made preparation for his wars in France it was enacted by Parliaments that the Chancellour and Treasurer should determine all complaints against extortion of Officers maintenance imbracery and such like offences and albeit that indeed this authority be neither granted to himself alone nor doth plainly erect any Court of Equity yet for as much as it is the very first severall power of this sort that I find committed to him from the King in which also it is to be thought that the proceeding was extraordinary and absolute even as the Kings own before was I suppose it to be the laying of the first stone of the foundation of the Chancellours Court But after this in the 36th year of the same Kings reign it was provided by Parliament That if any were grieved contrary to the Articles of that Parliament or others That he should have remedy in the Chancery without other Suit by which Law the Chancellour was not onely made sole Judge in this newly erected Court but was enabled so to proceed in Judgement after his own discretion or otherwise the words without other Suits were not Beneficiall After this also his authority was inlarged by sundry Parliaments as by one to award damages upon untrue suggestion made before him by another To send Proclamation of Rebellion against such as would not appear And by others To grant Commissions of divers kinds and to do many other things whereof it is not needfull to make rehearsall here And truly as these be first beginnings that I can find in Statute Law concerning this authority of Chancery Court so also I do not remember that in our reports of Common Law there is any mention of causes drawn before the Chancellour for help in Equity but onely from the time of King Henry the fourth in whose dayes by reason of those Intestine troubles Feofments to uses did either first begin as some have thought or else did first grow common familiar as all men must agree for remedy in which causes of uses chiefly the Chancery Court
the King himself hath a high Court of Justice wherein it seemeth that he sate in person for the words be Let him not seek the King And lastly that the same Court of the King did judge not only according to meer right and Law but also after equity and good conscience For first the words be unlesse he cannot find right at home by which it is permitted that then he might use to go to the King for right Secondly Again if that right be too heavy then let him seek to the King c. whereby it is meant that he should have the rigor of the Law mitigated by the conscience of the Prince and after this order and in these two sorts of Courts was all Justice administred untill the time of King William the Conquerourâ— during whose reign as allso under the Government of King Rufus his son it is to be thought that the ordinary course of Justice was greatly disturbed as well by reason of the intestine and sorraign wars as also because that these two Princes governed by a meer and absolute power as in a Realm obteyned by Conquest but yet it was so farre off that any of them did utterly abolish these Courts That the same did not only remain during all their times howsoever put to silence for the season but also had continuance afterwards and do yet as they may here bear life amongst us for as I said those base Courts of the Shires Hundreds Boroughs and Mannors do yet continue in manuer the same in substance that they then were and that the pleas ought no more to be taken from then now in our dayes without cause then they ought to have been may evidently be proved by the writs of Tolt pone accedas ad Curiam and Recordari vhich wee now yet use and that to this only end to remove suits upon cause out of one Court into another The like I may also affirm of that high Court which then followed the King himself for albeit that many particular high Courts be now since that time advanced by reason that the multitude of suits still increasing with the iniquity of the age of the World would not suffer them all to be ordered in one place without both into lerâ—ble delay of matters and grievous vexation of men yet nevertheless if ye will throughly behold the matter and subject about which all these Courts are now occupied you shall perceive that they are but as it were so many branches sprung up out of that one tree or stream derived from the same spring and sountaine For letting pass those Courts of the Country which I have already touched also those other small Courts of record that be in Cityes and Townes corporate Pipowders of Pies and powldres that is dusty feet because it is for Travailers to the sayr yea and the Pipowders Court it self that lasteth no longer then the Fayr All our higher Cours at this day be either Courts of right and Law or else of equity and conscience as they then were although they now require another subdivision than they then had And that if you will may be this The Courts of Law do either handle civil or criminall causes The late division of Lay Courts And these Civill causes be either moved between the Lord Protector and the people of England formerly between the King his tenants and subiects or else between one subiect and another Those Courts of Law that hold plea of common or civill matters that grew between the Prince and subiects be these The Exchequer devised for the safe custody of the lands formerly called the Crowne lands and for the faithfull answering of the revenues of the same The Court of wards and Liveryes and the Court of the dutchy of Lancaster both which are now altered And the Chancery Court at the least so far forth as the same hath to do with Petitions traverses de droith and such like Those other Courts of Law that have jurisdiction of civil or Common Pleas arising between subiect and subiect be these The Common Place or Bench The Marshalsea for matters heretosore within the vierge or limits assigned to the Kings house or Palace The Admiralty Court which was for marine Causes And the upper Bench in time past termed the Kings Bench so far forth as it yet doth retain jurisdiction in matters of debt Assumptions Actions upon the Case and such other things properly tryable in the Common Place and not there Criminall causes do generally belong to the upper Bench and have formerly belonged to the Starre Chamber or else particularly do appertaine to the Constables Court to the Marshasie Admiralty Goale delivery Oyer and Detorminer and Sessions of the Peace And these be the Courts of Law that have ordinary resort and jurisdiction The Courts of Conscience be these First the Chancery open to all men at all times Secondly the Court of the Request that did hear only the suits of poor men and of the Princes servants Thirdly The Chancellors Court that was within the Exchequer and Fourthly two Councills which formerly were established the one in Wales and the other in the North Country both consisting of President and Councill now taken away which were like unto those which in France are called Parliaments as I said before But now to the end that it may the more evidently appear how and by what degrees of increase these many Courts have sprung out of that one it is requisite that I proceede to the history of King William the Conqueror where I left and to descend from him downward untill I have set all on foote The Court of Exchequer The Authority of this Court is of originall jurisdiction without any Commission Cook 4. Inst c. 11. p. 130. It is confessed by all writings that the Conqueror after such time as he had suppressed the forces of those that made head against him here did immediatly cause the whole Realm to be exactly surveyed by Shires and Hundreds severally aswell for the understanding of the woods pastures meadows and tillage thereof The first survey of the Kingdome was by Alfred about 872. the Register thereof was kept in his treasury at Winchester Daniell f. 11. as also of the profitts of Churches Mills Villaines and of all other Commodities whatsoever The record of which survey was then called Domesday Book and was appoynted to be kept in the Exchequer at Westminster where it now resteth And that Court did he then also newly erect for the ordering of his revenues after the name of the Exchequer in Normandie it had not only the government of revenues of the Duke there but was also the soveraigne Court for administration of justice amongst his subjects Custom Normand 48.52.635 and so continued untill that Lewis the 12. King of France converted it into a Court of Parliament consisting of President and Counsellors and established it at Roan in Normandie where it now remaineth But this his Exchequer in England had
was then fled unto as to the onely Altar of help and refuge But whence the Court of Equity took a beginning to be a distinct Court I have made proof as I think that the power thereof was alwaies in exercise and considering that formerly all the Princes of this Realm and now the Lord Protector of this Nation is the immediate Minister of Justice under God and sworn to deliver to the people aequam rectam Justitiam I cannot see how that it may otherwise be but that besides his Court of meer Law he must either reserve to himself or refer to others a certain preemment power by the which he may both supply the want and correct the rigor of that positive or written Law which of it self neither is or can be made such a perfect rule as that a man may thereby square out Justice in all causes that may happen For written Laws must needs be made in a generality and be grounded upon that which happeneth for the most part because no wisdome of man can foresee every thing in particular which in time experience doth beget and therefore although the written Law be generally good and just yet in some speciall case it may have need of correction by reason of some considerable circumstance falling afterwards which at the time of the Law making was not forseen whereas otherwise to apply one generall Law to all particular cases were to make all Shooes by one last or to cut one Glove for all hands which how unfit it would prove every man may readily perceive And here of this Equity hath this name in Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. secundum and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 id est conveniens assimulatum because it doth not onely weigh what is generally meet for the most part but doth also consider the person time place and other circumstances in every singular case that cometh in question and doth thereof frame such a judgement as is agreeable and convenient to the same so that in summe the written Law is like a stiffe rule of Steel or Iron which will not be applyed to the fashion of the Stone or Timber whereunto it is laid and Equity as Aristole saith well is like to the leaden rule of the Leasbian Artificers which they might at pleasure bend and bow to every Stone of whatsoever fashion And hereby it may also appear what use there ought to be aswell of the positive or written Law as also of Equity it self for seeing that the positive or common Law is made meet for the most part and that Equity is added for help in few or singular causes it followeth by reason that commonly and singularly the positive Law should be put in ure and that Equity should be appealed unto but onely in rare and extraordinary matters least on the one side if the Judge in Equity should take Jurisdiction over all it should come to pass as Aristotle saith that the best should bear rule for so he calleth man whose judgement if it be not restrained by the chain of Law it is commonly carried away with unruly affection and on the other side if onely streight Law should be administred the help of God which speaketh in that Oracle of Equity should be denyed unto men that need it And therfore even as two Hearbs being in extreamity of heat or Cold be by themselves so many poisons and yet if they be skillfully contempered will make a wholesome medicine so also would it come to pass if either this Arithmeticall Government as they call it by rigor of Law onely or this Geometricall judgement at the pleasure of the Commissioners onely should be admitted And yet if they be well compounded together a most sweet and Harmonicall Justice will follow them And as a good Chancellour then would not so the Commissioners now will not make this Proclamation Nullus recedat a Cancellaria sine remedio and so receive Cognisance of every complaint which shall be made before them upon whatsoever suggestion and thereby both overthrow the authority of the Courts of Common Law and also bring in upon men such a confusion and uncertainty as hardly any man shall know how or when he shall hold his own assured but they will rather have the Common Law to have her just honour and not to be interrupted in her right course or current and will yet withall provide that the Gate of mercy may be opened in all calamity of Suit to the end that where need shall be the rigor of right may be amended by the Judgement of Equity in which behalf this our age hath greatly to thank God for that by the Ministry of our Protector he doth not onely leave to us the right use of the Courts of meer Law but hath also hitherto placed in that Praetoritall Room or Chancery men no less learned in the common Laws of the Nation than accomplished with the skill of this moderation and equity I see that occasion is offered me to enter into the handling of some few questious concerning the order of Chancery and chiefly of this one whether it be meet that the Commissioners should appoint unto themselves and publish to others any certain rules or limits of equity or no about the which men Godly and learned have differed in opinion For on the one part it is thought as hard a thing to prescribe equity any certain bounds as it is to make one generall Law to be a meet measure of Justice in all particular causes And on the other side it is said That if it be not known aforehand in what cases they will reach forth their help and where not then neither shall the people be assured how or when they may possess their own in peace nor the practiser of Law be able to inform his Clyent what may become of his action The later of which opinions I hold to be the best according to the late Regulation of the high Court of Chancery together with the Common Law in August the 22th Anno 1654. by his Highness the Lord Protector and his Counsell For though equity cannot be limited yet as it puts an end to controversies it must have certain rules prescribed to it otherwise it can neither be called a Court nor can the Suitors be certain of any relief to be had therein which Court were it so would soon be destroyed Because this and the like matters be of more difficultie than that I may with modesty take upon me to determine them And for that also it is not my present purpose to dispute what is convenient to be done in any Court but rather to discourse the beginning and acknowledge the benifit of them all I will onely wish this one thing That before any motion should be made for either the parties Plantiff or Defendant 4. or 5. dayes notice thereof were left with the Clerk in Court on the other side to defend that motion that so he
The beginning of the Parliament there proceedeth a most exquisite consent and delicious melody the begining of vvhich manner of consultation Parliaments holden long before the Conquest Mirror c. 8 sect 2 and namely vvith us of this Realme I see not hovv I can derive it from any other time then from that in vvhich the Germans or English nation did set their first foot on this land to invade vade it for Cornelius Tacitus vvriteth thus nec regibus infinita potestas de minoribus rebus principes consultant de maioribus omnes Neither did they together vvith the change of the soile make change of this their vvonted manner of deliberation for it is yet extant in monuments left behind them The conâ—â—nuance of the Parliament untill the Conquest that after their coming hither they frequented the same order in counselling vvhich they had used in their ovvne countrey before These two Kings are great exemplars of grave wisdom and would not trust their own judgements in a â—â—tter of so â—â—gh concernment but consulted their wisemen about it knowing that plus vident oculi quam oculus for proofe vvhereof I might call Beda the Saxon historiographer to vvittnesse vvho reporting that the Christian faith tooke roote by little and little amongst them in their particular Kingdomes vvithin this land vvriteth that King Edwyne of Northumberland vvould not embrace the preaching of the Gospell before he had communed and consulted with his freinds and Nobility and Wisemen and that Sigeberth the King of Eastsex being likevvise moved to be baptized did first call a Councell of his subiects and finding them all to favour the motion did then himselfe also assent unto it But because the Synodes or Parliaments themselves be most faithfull witnesses of their owne doings and for that also the kingdome of the west saxons prevailing over the rest and meeting as it were all their crownes to make on for hereselfe did in the end become mistresse or Monarch of the whole Heptarchie or seven Kingdoms into which this Land was first divided I will for a while leave historians and come to the Synodes first shewing by one or two examples what persons were wont to be present at the parliament of that kingdome and then confirming the like to have been used after such time as the whole land was reduced to one entire estate and monarchie Ine the King of Westsex who began his reign about the year of the Incarnation of our Lord Christ 712. begineth his Parliament thus I Ine by Gods guift King of the west Saxons with the advice and teaching of Cenred my father Ireledde my Bishop and Ercenwold my Bishop and with all mine Aldermen and eldest wisemen of my people and also a great assembly of Gods servants was carefull concerning the health of our soules and the establishment of our kingdome c. Now let us see if three estates of Parliament that is to say the King the Nobilitie and Commons may besound here First the Kings name is expresly added the Noblitie is signified under these Bishops and Aldermen for before the division of the Realme into Shires every large Territorie had an Alderman or governor who was after the allotment into shires for the most part an Earle in token whereof all our Earles to this day do beare the name of one shire or other The Commonalty is partly included in the words the Eldest wisemen of my people which betoken the laytie and partly in the words A great assemblie of Gods servants vvhich do notifie the Clergie so called then as it may appeare by the first Chapter of the very same lavves for that they vvere consecrated to Gods service And lest any man should thinke that these estates vvere called together more for their advice and counsell to be given to the king then for any authority or interest that they had in making the lavve the preamble calleth those lavves our dooms or Iudgments And the purveivv saith wee bid or command in the plurall number vvhich also may not be restrained to the King only for honour sake as vvee novv use to speake for he is there named I Ine in the singular only Thus much I note once for all That I be not hereafter troubled to repeat the same thing often About one hundred yeares after the death of this Ine one Aldred a King of the vvest Saxons also as he calleth himselfe but rather King of the English men and Saxons as Asserius saieth that vvrote his life did as he telleth in his preface to his lavves gather together and put in vvriting certain ordinances made by vvise men in sundry Synods of sundry former Kings as namely Ine aforesaid Offa King of middle England and Ethelbert of Kent the first christned Prince of all the Saxon nation vvhich collection of lavves he also saieth that he shevved to all his vvise men and they also thought them meet to be observed but what maketh it to the three estates will some man say that the kings and their wisemen which may well seem to be but their privy Counsellors did establish lawes yes very much for here the word Witena wisemen doth include the Nobilitie and CoÌ„mons because they be Counsellors of the Realme for the time in respect whereof the assemblie of them was of some called Witena Gemote a meeting of the wisemen as I told you And of other it is termed Commune consilium Regni the comon counsell of the Realme and that this must be so understood in this place I will use none other argument then the testimonie of Alfred himselfe drawne out of the same place for he saith as you have heard that the lawes of the King Ine were made by a Synode of wisemen and what those wisemen were you here also understand by the report of King Ine himselfe And the stile of his owne lawes that is to say by the Nobilitie and Comunalty besides the King Furthermore that I lose not another advantage offered me by this authoritie I must also gather hereby That not only the Kings of Northumberland Essex and Westsex used the three estates in making their Lawes but also that they of Kent and middle England maintained the same order for King Alfreds words as you see are one and the same for them all and then consequently their manner was one and the same through all But now that I may at the length leave these heptarchies or petie Kings and passe to the Monarchies and great ones the same Alfred after that the whole nation had yeilded themselves unto him and were shrowded under his protection against the furious storm of the Danish invasion did at one time conclude a peace with Guthrum the King of the Danes the stile whereof beginneth thus This is the peace that King Alfred and King Guthrum and all the wisemen of the English nation have taken c. Loe here you see Ealra Witena Gemote an assemblie of all the wisemen After him Edward called
his wisemen to Excester and consulted with them for the better observation of the peace of his own Realm And he also at another time by the advise of his wisemen renued and confirmed the league that Alfred had before taken with the Danish Captain King Ethelstane concludeth his famous Parliament holden at Grateley thus All this was ordained in that great Synod at Grateley at the which was the Arch-Bishop Walfhelme with all the Noblemen and Wisemen that King Ethelstane gathered together and the same King did also afterward call another assemblie of his wisemen to Excester to consult for the better execution of those former Ordinances Edmond the King summoned a great Synod at London both of the order of the Spiritualty and Temporalty the which in the second part of the Law there made he called by a generall name his Witena wisemen and thanketh them all for their help in that advice And after him King Edgar published certaine lawes which were made as he saith by the Counsell of his wisemen K. Edgar made lawes frequenti senatu he began to raign 959. Lambard f. 62. Etheldred had consilium sapientium and be began to raign 979. Lam. f. 88. The like title and conclusion have those statutes also which King Etheldred ordained at Woodstock and the league which he made with Anlaf another of the Captaines of the Danish armie is intituled to be made by him and his wisemen And certain other acts there be though hitherto not imprinted of a Parliament that was assembled in the yeare of Chist 1008. which fell under the raign of the same King which are there reported to have passed under the authority of the King and his wisemen both spirituall and lay in which said last ordinances this one thing for this purpose is worthy of observation That whereas in the beginning of the lawes all the acts are said to passe from the King and his wisemen both of the Clergie and Laytie It is also supposed that the senatus consultum de monticolis Walliae was in this Kings time the title is Consultum quod Angliae sapientes Walliae consiliarij de monticolis fecerunt Lamb. 94. in all the body and processe of the law each statute saith thus And it is the advice of our Lord and his Wisemen so as it seemeth plainly that it was then a received speech to signifie both the Spiritualty and Laity that is to say the Nobility and Comons by the onely word Witena or Wisemen Finally those lawes of the great King and Monarch Canute or Knoate which he made at Winchester and be yet remaining do beare face and testimonie that they were made by him and his wisemen Se of this Guliel Lamb. 97. And there is an antient written treatise intituled Modus tenendi parliamentum tempore regis Edwardi filii Etheldredi to be seen in many hands purportng the very order forme and manner of all this stately Court and Assemblie Now as these written authorities do undoubtedly confirm our assertion of the continuance of this manner of Parliament so is there also unwritten law or prescription that doth no lesse infallibly uphold the same for it is well known that in every quarter of the Realm a great many Boroughs do yet send Burgesses to the Parliament which neverthelesse be so antiently and so long since decayed and gone to naught that it cannot be shewed that they have been of any reputation at any time since the Conquest and much lesse they have obtained that priveledge by the Grant of the King succeeding the same so that the interest they have in Parliament groweth by an ancient usage before the Conquest whereof they cannot shew any beginning which thing also is confirmed by a contrary usage in the selfesame thing for it is likewise known that they of ancient demeasne do prescribe in not sending to the Parliament for which reason also they are neither contributaries to the wages of the Knights there neither are they bound by sundry Acts of Parliament though the same be generally penned and do make no exception of them But there is no ancient Demeasne saving that only which is described in the book of Domesday under the title of Terra Regis which of necessitie must be such as either was in the hands of the Conquerour himselfe who made that booke or of Edward the Confessor that was before him And so again if they of ancient demeasne have ever since the Conquest Mirror c. 1. sect 2. prescribed not to send Burgesses to the Parliament then no doubt there was a Parliament before the Conquest to the which they of other places did send their Burgesses which seeing it is so let us come neerer and examine whether the same order have continued since that time or no. The continuance of Parliament after the Conquest To looke for a Parliament assembled of the English nation and Commons soon after the Conquest were but to labour without expectation of good speed for Silent leges inter arma There were in the time of and since the conquest in the raigns of H 1. K. Stephen H. 2. R. 1. K. John H. 3. c. 280. Parliaments and acts made at every session Cook 1. Jnst sect 164. p. 110. See Polyd. l. 11. and Hollingsh p. 354. of the beginning of Parliaments in England And during all the raign of the Conquerour either the sword was not put up into the scabbard or if it were the hand was alwayes upon the hilt ready to draw it again So unwilling on the one part were the English men to take the yoak and more that rather their obedience was to be compell'd then their opinions to be consulted and so haughty on the other part were the Normans victors that to be called an English-man was in their eye a great contumelie and reproach His son William also did rather pretend in word some release of the former austerity in government than perform it in deed and experience But his other son the first Henry that ever raigned here did not only at his Coronation promise restitution of St. Edwards laws as we call them but also delivered out his free Charter of the Grant of the same in which as M. Paris reporteth he acknowledgeth that he was crowned by the Common-Councell of the Barons of the Realme of England and there it may happily seeme strange to affirm that this was a full Parliament in the which there is no other mention but of these Barons only But if it be considered first that the Germans expound and render the word Baro by Freehears a freeman then that Math. Paris saith that the Citizens of London were at that time called Barons And also that even yet Burgesses of the Five Ports do passe under the same name of Barons and that every man almost hath his Court-Baron It shall not be altogether without ground to say that both the Nobility and Commonalty of the Realme were meant under these words the
Barons of the Realm the rather because that speech is accompanied with the words Common-Councell and for that also the selfe same Author doth afterward use the words Comunis assensus Baronagii when he intendeth to signifie a just Parliament Ingulphus who died before 1109. saith Rex Eldredus convocavit magnates Episcopos proceres optimates ad tractandum de publ negotiis Regni Howbeit since I labour not with any penurie of proof I wil relinquish the advantage of this matter desiring only that they may be called to memorie which Polydore Virgil hath before acknowledged concerning the restitution of the form of the Parliament made by this very same King of whom also the Saxon Chronicles of Peterborough Abby do testifie that in the yeare after Christ 1123. he sent his writers over all England and bad his Bishshops Abbots and all his Theignes which signifie asmuch as Barons before that they should come to his Witena Gemote on Candlemas day to Glocester But to leave him and to leap over Stephen because he hath striven longer for the Crown then he enjoyed it King Henry the second saith Mathew Paris in the year of our Lord Christ 1185. Convocavit Clericos Regni populum cum omni nobilitate apud fontem Clericorum And yet again to passe over his two sons Richard and John whereof the one spent the most part of his Raign in battell abroad and the other in Civill warrs at home I read in the same Author that King Henry the third did in the year of our Lord 1225. call together Omnes Clericos laicos totius regni Which assembly the same writer also in some places expresseth by the words Vniversitas regni but what need I to hang long on the credit of Historians seeing from this time downward the authentique writers of the Parliaments themselves do offer mee present help The great Charter of England which passed from this King about this time and for which the English men had no lesse striven than the Trojans for their Helena beareth no shew of an Act of Parliament and yet I will prove by the Depositions of two sundry Parliaments That it was made by the comon assent of all the Realme in the time of King Henry the third for so saith the statute called Confirmatio Chartae Anno. 25. E. 1. in flat Termes and the statute made at Westminster Anno. 25. E. 3. Cap. 1. saith that it was made by the King Peeres and Commons of the land in the 20. year of the same King Henry the statute of Mertâ—n was published which saith thus Provisum fuit consessum tam a praedictis Archiepiscopis Episcopis Comitibus Baronibus quam ab ipso rege aliis And in the 52. yeare of his raign was the statute of Marle-bridge made provideat as it self speaketh ipso domino rege ac convocatis discetioribus eiusdem Regni tam majoribus quam minoribus provisum est statutum c. The statute of Westminster the first which was made in the third yeare of E. 1. hath this title The establishments of King Edward made by this Councell and by the Assent of the Archbishops Bishops Abbots Earles Barons and all the Comonalty of the land thither sumoned The statute made at Gloucester in the 6. year of the same Kings raign is there said to be thus made Purrelant le Roy apelles le pluis discretes de son Royalme auxibien des greinders come des meindres establie est concordantment ordenie To draw to an end King Edward the second held a Parliament in the 14. year of his raign wherein are these words Le Roy per assent des Prelates Counts Barons tout le Comunaltie de son Realme en le Parliament c. and the like speech hath he in another statute that he made Ne quis occasionetur pro morte Petri de Gaveston I do not think that I shall need to speake for further proofes amongst the Records of Parliaments after this time for they do from henceforth not only shew themselves in such store and plenty but also set forth the severall states themselves the duty of their presence the paines of their default or departure and sundry other circumstances so particularly and plainly that as I might well be charged if you would stand upon them in a matter not doubtfull to have used speech nothing at all needfull and yet least any man should suspect that any of the two estates of this Assemblie derived his voice in Parliament from the authority of any of these later lawes I must leave him to understand that in one short Statute of Parliament holden in the 5 year of King Richard 2. statute 2. ca. 4. he may reade it 4. severall times plainly spoken that this was done anciently and of old time So that here again also Prescription is ready to serve the turne and to say the truth this one law may stand for an Interpreter of all the rest for whether they be said to be made by the King and his Barons or by the King and his Clergie and Laytie or by the King and his discreeter men both great and small or by the common Assent of all the Realme as I have already shewed or by the King and his Wisemen or by the King and his Councell or his Comon-Councell or by the King Earles Barons and other Wisemen or after such other like phrases whereof you may meet with many in the volumes of Parliament it cometh all to this one point namely that the King his Nobilitie and Commons did ordaine them And which is more if you shall find any act of Parliament seeming to passe under the name and authoritie of the King only as some have that shew indeed yet you must not by and by judge that it was established without the Assent of the other estates To take one example for the rest The statute of Gloucester made the 6. E. 1. speaketh thus Our soveraigne Lord the King for the amendment of the land hath provided the statutes under-written c. But yet the statutes made at Westminster in the 13 year of that King and the statute of Quo Warranto set forth in the â—0 year of that King also â—eciting that statute of Gloucester do plainly acknowledge the one that it was provided by the more discreet men of the Realme aswell of the high as of the low degree being called together and the other that it was made by the King calling together the Earles Prelates Barons and his Councell And therefore it was well noted by Judge Brook That though magna Charta and sundry other old statutes do run in the name of the Prince only yet the other estates are supplyed in all good understanding Againe whether the forme of an Act be thus The King with the Assents of the Lords and Commons doth establish or thus It is enacted at the request of the Lords and Commons whereto the King assenteth or thus by the
Assent of the King and of the Lords spirituall and Temporall and of the Commons it is enacted or thus It is enacted by the authority of this present Parliament It is also all one in effect and substance for the words assenteth and enacteth are equivalent in this case 7. H. 7.14 2 H. 7. â—7 as it is holden 7. H. 7.14 2. H. 7.27 whereas otherwise the necessitie of the Assent of all the 3. estates of Parliament is such as without any one of them the rest will lose their labour For it fell out upon a time that the King in Parliament willed that a certain man should be attainted and should lose his hands whereunto the Lords assented But because there was nothing spoken of the Commons it was adjudged by all the Iustices 4. H. 7.18 That this was no Acte that might binde 4. H. 7.18 and therefore the partie was restored Hitherto of the Continuance and Assent of this our first and highest Court This Court of Parliament maketh inlargeth diminisheth abrogateth repealeth and reviveth Lawes statutes c. concerning matters ecclesiasticall capitall criminall common civill martiall maritine c. Cook 1 Inst fol. 110. sect 164. see 4. Inst chap. Parlia ment whereunto after that I shall have added a word or two of the jurisdiction thereof I will proceed to the rest if all judgements as Cicero said be conversant either in the punishment of offences or in the decision of controversies then is the Judgment of our Parliament of as ample authority as the assent of any or all other Courts whatsoever for it declareth the lawes that do bind all persons in all Causes aswell ecclesiasticall as temporall whereof you may see a great many examples in the volume of the old saxon Parliaments how strange a thing so ever the popish Clergie in former times have thought it to be it hath jurisdiction also in such causes which have need of help and for which there is no help by any law already in force And whereon the erronious Judgments of any other Courts must be reversed by a higher authority this Court doth not only reverse the errors of the upper Bench formerly called the Kings Bench which is superior to all other but it may also amend the errors committed by the Parliament it self if any such shall at any time appeare Ecclesiasticall Courts were many in number diverse in nature whereof the Chiefe was the Convocation of the Clergie of the whole nation of England and Wales which was assembled together with the estates of Parliament and it consisted of the Deanes Chapters Archdeacons Procurators of all the Cathedrall Churches the next were the 2. provinciall Synods of Canterbury and of Yorke to the later of the which there were only three Bishopricks subject that is to say Durham Carlisle and Chester and all the rest owed their obedience to the See of Canterbury After those were the generall Courts of the Arch-Bishops of Canterbury that is to say the Consistory or Court of the Arches for Appellations the Court of Audience of the Chancellours Court which was wont to be in the Arch-Bishops house The Commissaries or the Praerogative Court which is now in being for probate of Testaments and the Court of Faculties for dispensations then followed the speciall Courts of this Arch-Bishop namely his Consistory holden by his Commissary at Canterbury for his diocaesse and lastly the Court of those peculiar Deanaries which did belong unto him and do ly in the diocaesses of other Bishopps The other Arch-Bishops and each other Bishop had in his owne Diocesse the Court of his Chancellour and the Court of his Archdeacon or his Officiall But forasmuch as the description of these ecclesiasticall Courts perteineth to another learning I meane to the Civill and Canon Laws by which they were governed and do withall require a double treatise by themselves I will content my self with this bare enumeration of them at this time and bend my labour to the discovery of the Lay or temporall Courts that now have place amongst us Lay Courts were of two sorts The sorts of Lay Courts in antient time at the first only base and high concerning the beginning whereof I read that even as Moses the speciall minister of Justice appointed by God finding himself unable to sustain the burden of deciding all the Controversies of the people Deut. 1. Exod. 18. did set Judges over Tribes Hundreds Fifties and Tenths of the multitude to whom he referred the determination of smaller causes reserving to himself the knowledge of matters that were of greater importance so also that Saxon but Christian King of England Alfred divided his whole Realm of England first into Shires Division of the Realm for juris diction then those shires into Rathes Rapes or Rideings and these again into Wapentakes or Hundreds and lastly those also into Leets Barons or Tything and did withall establish jurisdiction in every of these permitting to the Reeves or Judges of the lower roomes authority of hearing smaller suites granting greater power to the Shiriffs and Aldermen which have charge of greater Assemblyes and detaining to himself the decision of such matters as by just cause of appellation either for Law or equity should be brought unto him This Court of the whole Shire was of two sorts whereof the one then called Scyre-Gemote that is the Assembly of the Shire and now termed the Sheriffs turn was then as now also holden twice in one year And this Court was of like jurisdiction to the Court of the Leet or of the Boroughs or Tything as it was then called The second and the Hundred Court then named Hundre des-Gemote was in those appointed to be holden once in a month at the least and that was of like nature to the County Court which is now kept every month also unto the Court Baron antiently called healgemote and corruptly halymote that is as I said the Court of a Hall or chief place which is now at this day to be kept and maintained once in three weeks if the Lord will so have it I read further more in the Laws of the Saxon King Edgar thus ne Gesece nan man Sone Synz c. Let no man seek to the King in matter of variance unless he cannot find right at home but if that right be too heavy for him then let him seek to the King to have it lightned The very like whereof is to be seen in effect in the Laws of Canutus the Dane sometimes King of this Nation also The hygh Court of justice before the Conquest for Laws and equity Out of which laws I gather four things First that every man had means to use in these base Courts at home in the Countrey for the recovery of his right Secondly Then that no man ought to use it out of the County or to draw his plea from thence without good cause both which things lye plainly in the letter of this Law Thirdly that