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
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
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
meet and agreeably to the second the kings house was first called a Court because the cheife Court of Iustice was holden there But now of Courts some were called ecclesiastical some Lay and other some mixed that is to say both ecclesiasticall and Lay. Of this last sort I find but one namely the high Court of Parliament which I call mixed because it had the Bishops ioyned with the lay Lords to make up the second estate thereof the first estate consisting of the Prince alone and the third of the Commonalty without any of the Clergy at all Of which Court albeit it was rather sommoned to devise and create reforme and repeale laws than to put them in execution yet forasmuch as it both ministred the matter whereupon all the other Courts do work and had in some causes ordinary jurisdictions also I will speake first and then persue my division That which wee now agreeing with the Scotts and Irish do call a Parliament the Frenchmen do call Les Estates or assemble de les estates because with them there as with as also the King Nobilitie and Commons which be the three Estates of the land do meet thereat to consult and the same in Germany is termed a Dyet for these other Courts that carry the name of Parliament in France be but ordinary Courts of Iustice which as Paulus Jovius writeth are thought to have been planted by us and of which our own Councels established in Wales and in the North parts do beare the nearest shew and resemblance This word Parliament saith one is Compounded of parium and lamentum because as he thinketh Peeres of the country did at those meetings lament and complain each to other of the enormyties of their country and thereupon provided redress for the same but this is not very credible But their opinion is more probable as I think which derive the Parliament simply from the French word Parler and that also from the Greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 both signifying tospeake and so by adding the termination mem which is common in the french tongue as well to many nounes as adverbs do make up Parliament meaning thereby an Assembly of men called together to speake or confer of their advice and opinion and so also it may not unfitly be called Parliament for that every man there doth or should speake his mind but Laur. Valla misliketh that kind of Etymologie Cooks 〈◊〉 stit folâ— 110. seâ— 164. yet my Lord Cooke saith that it comes from parler lament to speake ones mind and his authority is not mean I will not take upon me to set downe the very time The beginning of the word Parliament in which the word Parliament came first in use but forasmuch as it was transported out of France it is not unprobable to guesse that it began here shortly after the time of the Norman Conquest One of the most authentique reports The name Parliament was used before the conquest in the time of Edw. the Confessor Cooke 1 Instit sect 164 page 110 that I think can be sound of that name Parliament is in the statute made 3. E. 1. and commonly called where that assembly is said to be le Primer Parliament generall apres coronement le Roy but yet that is not the very first use of the word for in the statute called Articuli clori and published 9. E. 2. these words are read amongst others Tempore progenitorum nostrornm quondam regum Angliae in diversis Parliament is su is c. which word progenitorum and quondam regum must needs reach higher than to E. 1. that was but father to him that spake it So that I can willingly herein subscribe to the opinion of Polydore Virgill who in the eleaventh book of his English history which contayneth the raigne of King Henry the first that was son to the Conqu writing of the great assembly at Salisbury saith thus at illud apposite habeo dicere reges ante haec tempora non consueuisse populis conventum consultandi causa nisi perraro facere adeo ut ab Hemico id institutum jure manasse dici possiâ— c. and a little after more galico vulgo Parliamentum appellant c. and this is so much the more credible as that King laboured by all meanes and especially by restitution of the antient lawes as all histories do agree to heale the hearts of the English men which were before deeply wounded by the oppressions of his father and brother William to the end that he might thereby the better keep the Crowne of this Realme against his elder brother Rob. Witenage Mote Michall Sinoth and Michell Gemote names of Parliament before the Conquest Cook Inslit fol. 110 who both had good right and had moved his claim thereto but what time soever this Court began to be called by the name of Parliament this is certaine thâ—t the same was before known to the Saxons or English men some times by the word Sinoth and Micell Sinoth of the Greeke Synodos now appropriated to ecclesiasticall meetings only and somtimes by these tearmes micel-zemoce wizenazemoze and aupa-picena zemoze that is to say the great meeting the meeting of all the wise men for wizan signifieth a wise man and Gemote a meeting of which last word the names Shiyremoote folemoote and halymoote that is to say the assembly or meeting of men of a Shire of the men of a Towne and of the tenants of a Hall or Mannor had their beginnings also And as Synoth is more used in the acts of Parliament themselves so Gemote is more familiar to the histories thus much as well of the present as of the antient usuall name now let us looke into the thing it self Like as in warr where the King is present in person The conformitie and the reason of the Estates in Parliament and with him the Nobilitie Gentry and Yeomonry there is the force and puissance of the Realme even so in peace wheresoever is the prince as the head to give life that is to say yield the highest and the last assent and where the Baronie consistting of the Lords spirituall and temporall and the Commonalty made up of the Knights and Burgesses be as the body present at his commandement to deliberate conferre consult and consent there is also the Councill and policie of the Realme so that forasmuch as every man from the highest to the lowest is there either in person or by procuration therefore of right every man is said to be bound by that law vvhich doth passe from such an assembly And this frame of policie is both Naturall and Harmonicall 1. Naturall in that it hath an imitation of the naturall body of man truly called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a little vvorld out of the 3 cells vvhereof namely the head breast and belly the vvhole three povvers of the soule do open and utter themselves 2 Harmonicall because from such and so tuned a Base Meane and Treble
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
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
which was written in the latter end of the raign of this King Henry the third have this Commandment to the partie quod sit coram Justiciariis meis apud Westmonasterium and not coram me vel Justiciis meis as the former form in Glanvill was And thus began the Court which because it hath power over Common-Pleas wee now call the Common-Place About this time also or not long after some other Courts of Justice were likewise opened The booke called Britton as it may partly appear by Henry Bracton but more plainly by John Britton which followed immediatly after him for in the beginning of the raign of King Edward the first this John Britton then Bishop of Hereford whose name Mr. Bale in his Centuries or his Printers mistaketh and calleth Bekton being singularly learned in the Laws of the Realm did at the commandment of that King and in his name compile a book now imprinted and named Britton in the beginning whereof he d videth all jurisdiction thus First that the King himself had soveraign jurisdiction above all others in his Realm to Judge in all causes whatsoever Secondly that the Marshall of the Kings house had the place of the King to hear and determine the pleas of the Crown within the verge and that the Justices in Erie had like authority in every County once in 7. years Thirdly that the Justices which followed the King wheresoever he went and sate in his place had conusance of erronious Judgement Appeals and other matters of the Crown Fourthly That the Coroner of the Household had his proper power within the verge and that he and others had the order of weight and measure throughout the Realm Fiftly That Sheriffs Coroners Hundredors Burgesses Serjeants and Beadles had and so have their Courts within each of their particular limits Sixthly That Justices being continually at Westminster have power over Common Pleas. Seventhly That the Exchequer at Westminster had authority concerning the Kings Debts and Feeds and all things incident thereunto And Lastly that other Justices had the charge of Assize of the deliverance of Gaols in every County Forasmuch as after this distribution of power to hold plea thus made some of these Courts would not contain themselves within their appointed limits but sought to enlarge their authority by usurping jurisdiction that was appropriate to others Articuli super Chartas ca. 3 4 5. The same King did by Parliament holden in the xxviii yeare of his raign confirm that great Charter for ever and in certain articles as he did call them set forth upon the said Charter did then by like authority of Parliament enact that they of the Exchequer should not take knowledg of any Common Plea That the Seneschall or Steward and the Marshall of the Kings houshould should not have plea in hearing of trespasses Seneschall os Sein a house and Scale skilfull So steward of Stow a place and Wear a keeper contracts and covenants made within the verge And the Chancellors and the Justice of the Kings Bench now the upper Bench should follow him wheresoever he went to the end that he might alwaies have men about him that were able to deliver Law to such as should require it Hitherto as you see there is no express mention in Britton either of the Court of Admiralty the Constables Court or the Chancery and therefore it remayneth that we labour to find out from whence they also fetched their beginnings and that shall we the more easily do if we give heed to this that Britton hath already opened for he leaveth the soveraign jurisdiction of all causes in the King The Admiralâ—y The Brittish and Saâ—on Kings had their Chancellours as Etheldred who began his raign 978 Edw. the Confessâ—â— had Reâ—nbâ—ld for Inâ—â—â— Chaâ—â—â—lor Edgâ—â— had Aâ—uâ—ph and â—â—ded and Edmund had Turkâ—ull and Kâ—ag Atheâ—stone had Wolfaid for his Chanâ—â—lor Cooke 4. Inst â— 97. and Ethel baâ—d had Turketill for his Chancelor about 718. so that whatsoever the King hath particularly de ivered out to others his Justices Commissioners and Delegats that still remaineth in himself and was exercised either by himself in person or by his Chancellour Councellors of a State and Justices of Law that continually attended on him for that service And therefore first concerning the Admiralty I think that the decision of marine causes was not put out of the Kings house and Committed over to the charge of the Admirall untill the time of King Edward the third whereunto I am led partly And then after this subscription of him and his Queene and of the Archbishops and Abbots one Renibaldus is named Cancelarius and in the end of all after the date of the Chreme it is vvritten thus Siwardus Notarius ad vicem Renibaldii Regiae dignitatis Cancellarii hanc cartam scripsi subscripsi The next year after this King VVilliam the Conquerour gave by another Charter to the same Abby sundry Lands in exchange for Windsor the which King Edward had bestowed on them and in the end of this grant he likewise saith Ego Willielmus Dei Gratia Rex Dux Normannorum atque Princeps Cenomannorum hoc scribi precipi scriptum hoc signo deminicae crucis †confirmando stabilivi nostraeque imaginis sigillo insuper assignari curavi And then in order as before it followeth Ego Mauritatus Regis Cancellarius favendo relegi sigillavi Hereby it appeareth that the office of the Chancellor then was at the first to make and seal the Instruments that passed from the Prince and this I call his originall duty because it cannot credibly be shewed of any history as I think that ever there was in England any of sealing of writings or mention of the name of Chancellor before the dayes of this Edward who having spent agreat part of his age in Normandy first brought the use of the Seal from thence into this Nation See before of the antiquity of Chancelors and with it I suppose the name of Chancelor In whose time also Leofricus the Britain is the first Chancelor I find named For that we learned of the Normans our manner of sealing Ingulphus the Abbot of Croyland which came out of Normandy hither in the Train of the Norman Conquerour assureth us writing thus Normancii Cyrographorum confectionem cum crucibus aureis aliis signaculis sacris in Anglia formari solitam in Cerae impressionem mutant c. And that the name of him that kept the seal came out of France also it may be probably conjectured both by the word which we found nearer to the pronunciation of the French than of the Latin and also by the office it self which hath been exercised in France under the same name and nature that we use it ever since the time of Charlemaigne at the least And so it is manifest that the Chancelor did bear this name and had the Charge of the Kings seal and writings both before and in
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
might not be put off to shew cause from day to day which rather increaseth trouble and charges than either furthereth the suit for the hearing or benefits the parties in their cause Which thing whether it might be more couvenient than the present manner of motions I will leave to the judgement of such as have more wisdom to devise and power to execute And will sum up the rest of our Courts and make an end The Court of the Dutchy or County Palatine of Lancaster which is by a late Act of Parliament committed to the custody of a Commissioner grew out of the grant of King Edward the third The Court formerly called The Dutchy Court the jurisdiction whereof is now committed to a Commissioner or Commissioners County Palatine of Lanc. erected in Parliament 50 E. 3. and Iustices of Assises Gaole delivery and of the Peace have been since the erection of it Cook lib. 4. f. 204. 205. who first gave that Dutchie to his Son John of Gaunt and endowed it with such royall rights as the County Palatine of Chester had And forasmuch as it was afterward extincted in the person of King Henry the 4th by reason of the union of it with the Crown of the Realm the same King knowing himself more rightfully Duke of Lancaster then King of England determined to save his right in the Dutchy whatsoever should befall the Kingdom And therefore he separateth his Dutchy from the Crown and setleth it so in the naturall persons of himself and his heirs as if he had been no King or Pollitique Body at all in which manner it indured during the reign of King Henry the first and of King Henry the 6th that were descended of him But when King Edward the 4th had by recovery of the Crown recontinued the right of the House of York he feared not to appropriate that Dutchie to the Crown again And yet so as he suffered the Court and Officers to remain as he found them And in this manner it came together with the Crown to King Henry the 7th who liking well of that policy of King Henry the fourth by whose right he also obteined the Kingdom made by separation of the Dutchie as he hath done and so left it to his posterity It appeareth in our Books of the Tearms of King Edward the 4th The Star Chamber and the Report of cases happening under the usurpation of Richard the third This Court was in being before 28 E. 3. Cook lib. That sometimes the King and his Counsell And sometimes the Lord Chancellour and other great personages did use to sit Judiciall in the place then and lately called for that it is decked with certain Stats the Star Chamber But forasmuch as be like that Assembly was not ordinary therefore the next King Henry the 7th and his Son Henry the 8th took order by two severall Laws That the Chancellour assisted with others there named should have power to hear complaints against Reteinors Embraceries misdemeanours of Offices and such other offences which through the power and countenance of such as do commit them do lift up the head above other faults and for the which inferiour Judges are not so meet to give correction And because that place was before time dedicated to the like service it hath ever since also been so used untill it was taken away in the late King Charls his reign The Court of Requests The Court of the Requests being of the same nature as I said with the Chancery took beginning by Commission from King Henry the 8. before which time the Masters of the Requests had no warrant of ordinary Jurisdiction This Court had no warrant by act of Parliament or prescription to establ shit Cook lib. 4. fol. 97. but travailed between the Prince and Petitioners by direction from the mouth of the King The same King also established one Court of President and Counsell in the Marches of Wales 34. 35. H. 8. The Court of the Marches of Wales and that of the North parts were taken away in the late K Ch. his reign Anno 17. Car. And another like Court of President and Counsell in the North parts which Court in Wales was a Court of Law in its principall Jurisdiction although it did withall exercise other powers of equity by vertue of other severall Commissions that did accompany the same and the Court of York was in its principall Jurisdiction Equity and did exercise other powers by vertue of other Commissions Court of Wards The Court of Wards began about the 32th year of the reign of King Henry the 8 who also in the next year after added thereto the office of the Masters of the Liveries and withall conjoyned the names ordaining that it should be called The Court of his Wards and Liveries The same King likewise had erected one Court of the generall Surveiours of his Lands and one other of the Augmentations and Revenues of his Crown and a third Court of the first fruits and Tithes of Benefices But all these were afterwards dissolved and by Queen Mary united to the Court of Exchequer Thus having run along these Courts deriving them from the Crown I might proceed yet further to shew the originall and beginnings of some Courts erected by the late Parliament and the nature and beginning of the High Court of Justice that was erected in Westminster Hall Anno 1648. but they being so fresh in the memory of this age I shall not need to make mention thereof FINIS