The reverse or back-face of the English Janus to-wit, all that is met with in story concerning the common and statute-law of English Britanny, from the first memoirs of the two nations, to the decease of King Henry II. set down and tackt together succinctly by way of narrative : designed, devoted and dedicated to the most illustrious the Earl of Salisbury / written in Latin by John Selden ... ; and rendred into English by Redman Westcot, Gent.

THE SECOND BOOK OF THE ENGLISH JANUS. (Book 2)

From the NORMAN Conquest, to the Death of King Henry II. (Book 2)

CHAP. I.

William the Conquerour's Title. He bestows Lands upon his follow∣ers, and brings Bishops and Abbots under Military Service. An account of the old English Laws, called Merchenlage, Dane∣lage and Westsaxen-lage. He is prevailed upon by the Barons, to govern according to King Edward's Laws, and at S. Albans takes his Oath so to do. Yet some new Laws were added to those old ones.

WILLIAM Duke of Normandy upon pretence of a double Right, both that of Blood (inasmuch as Emme the Mother of Edward the Confessor, was Daugh∣ter to Richard the first Duke of the Normans) and withal that of Adoption, having in Battel worsted Harald the Son of Godwin Earl of Kent, obtain'd a large Inheritance, and took possession of the Royal Govern∣ment over all England.

After his Inauguration he liberally bestowed the Lands and Estates

of the English upon his fellow-soldiers; that little which remained (so saith Matthew Paris) he put under the yoke of a perpetual servitude.

Upon which account, some while since the coming in of the Normans, there was not in England except the King himself, any one, who held Land by right of Free-hold (as they term it:) since in sooth one may well call all others to a man only Lords in trust of what they had; as those who by swearing fealty, and doing homage, did perpetually own and ac∣knowledge a Superior Lord, of whom they held, and by whom they were invested into their Estates.

All Bishopricks and Abbacies, which held Baronies, and so far forth had freedom from all Secular service (the fore-cited Matthew is my Author) he brought them under Military service, enrolling every Bishoprick and Abbacy according to his own pleasure, how many Soul∣diers he would have each of them find him and his Successors in time of Hostility or War.

Having thus according to this model ordered the Agrarian Law for the division and settlement of Lands,

he resolved to govern his Sub∣jects (we have it from Gervase of Tilbury) by Laws and Ordinances in writing:* 1.1 to which purpose he proposed also the English Laws ac∣cording to their Tripartite or threefold distinction; that is to say, Mer∣chenlage, Danlage and Westsaxenlage.

Merchenlage, that is, the Law of the Mercians; which was in force in the Counties of Glocester, Worcester, Hereford, Warwick, Oxford, Che∣ster, Salop and Stafford.

Danlage, that is, the Law of the Danes; which bore sway in York∣shire, Derby, Nottingham, Leicester, Lincoln, Northampton, Bedford, Buckingham, Hertford, Essex, Middlesex, Norfolk, Suffolk, Cambridge, Huntingdon.

Westsaxenlage, that is, the Law of the West-Saxons; to which all the rest of the thirty two Counties (which are all that Malmesbury reckons up in Ethelred's time) did belong; to wit, Kent, Sussex, Surrey, Berks, Southampton, Winton, Somerset, Dorset and Devon.

Some of these English Laws he disliked and laid aside; others he ap∣proved of, and added to them, some from beyond Sea out of Neustria

(he means Normandy, which they did of old, term Neustria corruptly, in∣stead of Westrich, as being the more Western Kingdom of the Franks, and given by Charles the Simple to Rollo for his Daughter Gilla her porti∣on)

such of them as seemed most effectual for the preserving of the Kingdoms peace. This saith he of Tilbury.

Now this is no rare thing among Writers for them to devise, that Wil∣liam the Conqueror brought in as it were a clear new face of Laws to all intents and purposes. 'Tis true, this must be acknowledg'd, that he did make some new ones (part whereof you may see in Lambard's Ar∣chaeonomia, and part of them here subjoyned) but so however that they take their denomination from the English, rather than from the Nor∣mans; although one may truly say, according to what Lawyers dispute, that the English Empire and Government was overthrown by him. That he did more especially affect the Laws of the Danes (which were not much unlike to those of the Norwegians, to whom William was by his Grand-father allied in blood) I read in the Annals of Roger Hoveden. And that he openly declared, that he would rule by them;

at hearing of which, all the great men of the Countrey, who had enacted the English Laws, were presently struck into dumps, and did unanimously

petition him, That he would permit them to have their own Laws and ancient Customs; in which their Fathers had lived, and they them∣selves had been born and bred up in; forasmuch as it would be very hard for them to take up Laws that they knew not, and to give judge∣ment according to them. But the King appearing unwilling and un∣easie to be moved, they at length prosecuted their purpose, beseeching him, that for the Soul of King Edward, who had after his death given up the Crown and Kingdom to him▪ and whose the Laws were, and not any others that were strangers, he would hearken to them and grant that they might continue under their own Countrey Laws. Where∣upon calling a Council, he did at the last yield to the request of the Barons. From that day forward therefore the Laws of King Edward, which had before been made and appointed by his Grand-father Adgar, seeing their authority, were before the rest of the Laws of the Coun∣trey respected, confirmed and observed all over England.

But what then? Doth it follow that all things in William's time were new? How can a man chuse but believe it? The Abbot of Crowland sayes this of it,

I have brought with me from London into my Monastery the Laws of the most Righteous King Edward, which my Renowned Lord King William hath by Proclamation ordered, under most grievous penalties, to be authentick and perpetual, to be kept inviolably throughout the whole Kingdom of England, and hath recommended them to his Justices, in the same language wherein they were at first set forth and published.

And in the Life of Fretherick Abbot of S. Albans you have this account:

After many debates, Arch-Bishop Lanfrank being then present (at Berkhamstead in Hartfordshire) the King did for the good of peace, take his Oath upon all the Reliques of the Church of S. Alban, and by touching the holy Gospels,* 1.2 Fretherick the Abbot ad∣ministring the Oath, that he would inviolably observe the good and ap∣proved ancient Laws of the Kingdom, which the holy and pious Kings of England his Predecessors, and especially King Edward had appointed.

But you will much more wonder at that passage of William le Rouille of Alençon in his Preface to the Norman Customs.

That vulgar Chro∣nicle,* 1.3 saith he, which is intitled the Chronicle of Chronicles, bears wit∣ness, that S. Edward King of England, was the Maker or Founder of this Custom; where he speaks of William the Bastard Duke of Nor∣mandy, alias King of England, saying, that whereas the foresaid S. Ed∣ward had no Heirs of his own Body, he made William Heir of the King∣dom, who after the Defeat and Death of Harald the Usurper of the Kingdom, did freely obtain and enjoy the Kingdom upon this conditi∣on, to wit, that he would keep the Laws which had before been made by the fore-mentioned Edward; which Edward truly had also given Laws to the Normans, as having been a long time also brought up himself in Normandy.

Where then, I pray you, is the making of new Laws? Why! with∣out doubt, according to Tilbury, we are to think, that together with the ratifying of old Laws, there was mingled the making of some new ones: and in this case one may say truly with the Poet in his Panegyrick:

Firmatur senium Juris,* 1.4 priscamque resumunt Canitiem leges, emendanturque vetustae, Acceduntque novae.—

which in English speaks to this sense;

The Laws old age stands firm by Royal care, Statutes resume their ancient gray hair. Old ones are mended with a fresh repair; And for supply some new ones added are.

See here! we impart unto thee, Reader, these new Laws, with other things, which thou maist justly look for at my hands in this place.

CHAP. II.

The whole Country inrolled in Dooms-day Book. Why that Book so called. Robert of Glocester's Verses to prove it. The O∣riginal of Charters and Seals from the Normans, practised of old among the French. Who among the Romans had the priviledge of using Rings to seal with, and who not.

1.

HE caused all England to be described, and inrolled (a whole company of Monks are of equal authority in this business,

* 1.5 but we make use of Florentius of Worcester for our witness at this time)

how much Land every one of his Barons was possessed of, how many Soldiers in fee, how many Ploughs, how many Villains, how many living Creatures or Cattel, I, and how much ready mony every one was Master of throughout all his Kingdom, from the greatest to the least; and how much Revenue or Rent every Possession or Estate was able to yield.

That breviary or Present State of the Kingdom being lodged in the Archives

for the generality of it, containing intirely all the Tenements or Tenures of the whole Country or Land was called Dooms-day,

as if one would say, The day of Doom or Judgment.

For this reason, saith he of Tilbury, we call the same Dooms-day Book: Not that there is in it sentence given concerning any doubtful cases proposed; but because it is not lawful upon any account, to depart from the Doom or Judgment aforesaid.

Reader, If it will not make thy nice Stomach wamble, let me bring in here an old fashioned Rhyme, which will hardly go down with our dainty finical Verse-wrights, of an historical Poet Robert of Glocester: One whom, for his Antiquity, I must not slight concerning this Book.

The K. W. vor to wite the worth of his londe Let enqueri streitliche thoru al Engelonde, Hou moni plou lond, and hou moni hiden also Were in everich sire, and wat hii were wurth yereto: And the rents of each toun, and of the waters echone, That wurth, and of woods eke, that there ne bileved none, But that he wist wat hii were wurth of al Engelonde, And wite al clene that wurth thereof ich understond And let it write clene inou, and that scrit dude iwis In the Tresorie at Westminster there it yut is. So that vre Kings suth, when hii ransome toke And redy wat folc might give, hii fond there in yor boke.

Considering how the English Language is every day more and more refined, this is but a rude piece, and looks scurvily enough. But yet let us not be unmindful neither, that even the fine trim artifices of our quaint Masters of Expression, will themselves perhaps one day, in future Ages, that shall be more critical, run the same risk of censure, and un∣dergo the like misfortune: And that,

Multa renascentur quae nunc cecidere,* 1.6 cadentque Quae nunc sunt in honore;—

As Horace the Poet born at Venusium, tells us: That is,

Several words which now are fal'n full low, Shall up again to place of Honour start; And words that now in great esteem, I trow, Are held, shall shortly with their honour part.

2.

The Normans called their Writings given under their hand, Char∣ters (I speak this out of Ingulph) and they ordered the confirmation of such Charters with an impression of Wax, by every ones particular Seal, under the Testimony and Subscription of three or four Witnesses standing by.

But Edward the Confessor had also his Seal, though that too from Nor∣mandy. For in his time, as the same Writer saith,

Many of the En∣glish began to let slip and lay aside the English Fashions, bringing in those of the Normans in their stead, and in many things to follow the customs of the Franks; all great persons to speak the French Tongue in their Courts, looking upon it as a great piece of gentility, to make their Charters and Writings alamode of France; and to be ashamed of their own Country usages in these and other like cases.

Nay, and if Leland,* 1.7 an Eye-witness, may be believed, our great Prince Arthur had his Seal also, which he saith he saw in the Church of Westminster with this very inscription.

PATRITIUS. ARTHURIUS. BRITANNIAE. GALLIAE. GERMANIAE. DACIAE. IMPERATOR.

That is, The Right Noble, ARTHUR, Emperor of Britanny, France, Germa∣ny, and Transylvania.

But that the Saxons had this from the Normans, is a thing out of all question. Their Grants or Letters Patents signed with Crosses, and sub∣scribed with Witnesses names, do give an undoubted credit and assurance to what I have said. John Ross informs us that Henry Beauclerk was the first that made use of one of Wax;* 1.8 and Matthew of Canterbury, that Ed∣ward the first did first hang it at the bottom of his Royal Writings by way of Label; whereas before, his Predecessors fastned it to the left side. Such a writing of Henry the first in favour of Anselm, the last Author makes mention of; and such an one of William's Duke of the Normans, though a very short one and very small written;* 1.9 Brian-Twine in his Apology for the Antiquity of the famous University of Oxford (the great Study and support of England, and my ever highly honoured Mother) saith, he had seen in the Library of the Right Honourable my Lord Lumley.

But let a circumcised Jew, or who else will for me, believe that story concerning the first Seal of Wax, and the first fastning of it to the Wri∣ting: A great many waxen ones of the French Peers (that I may say something of those in wax) and Golden ones of their Kings (to wit, be∣twixt

the years 600 and 700) we meet with fashioned like Scutcheons or Coats of Arms in those Patterns or Copies which Francis de Rosieres has in his first Tome of the Pedigree or Blazonry of the Dukes of Lorain, set down by way of Preface. Nor was it possible that the Normans should not have that in use, which had been so anciently practised by the French. Let me add this out of the ancient Register of Abendon:

That Richard Earl of Chester (who flourished in the time of Henry the first) ordered to sign a certain Writing with the Seal of his Mother Ermentrude;* 1.10 seeing that (being not girt with a Soldiers Belt, i. e. not yet made Knight) all sorts of Letters directed by him, were inclosed with his Mothers Seal.

How? what is that I hear? Had the Knightly dignity and Order the singular priviledge, as it was once at Rome, to wear Gold-Rings? For Rings (as 'tis related out of Ateius Capito) were especially designed and ingraven for Seals:* 1.11 Let Phoebus, who knows all things, out of his Ora∣cle tell us. For Servants or Slaves (so says Justus Lipsius, and remarks it from those that had been dug up in Holland) and common Soldiers were allowed iron ones to sign or to seal with (which therefore Flavius Vopiscus calls annulos sigillaricios, i. e.* 1.12 seal-Rings) and so your ordinary Masters of Families had such, with a Key hanging at it to seal and lock up their pro∣vision and utensils.

But,* 1.13 saith Ateius of the ancient time, Neither was it lawful to have more than one Ring, nor for any one to have one neither but for Freemen, whom alone trust might become, which is preserved under Seal; and therefore the Servants of a Family had not the Right and Priviledge of Rings. I come home to our selves now.

CHAP. III.

Other ways of granting and conveying Estates, by a Sword, &c. par∣ticularly by a Horn. Godwin's trick to get Boseham of the Arch-Bishop of Canterbury. Pleadings in French. The French Language and Hand when came in fashion. Coverfeu. Laws against taking of Deer, against Murder, against Rape.

3.

AT first many Lands and Estates were collated or bestowed by bare word of mouth,* 1.14 without Writing or Charter, only with the Lords Sword or Helmet, or a Horn or a Cup; and very many Tenements with a Spur, with a Currycomb, with a Bow, and some with an Arrow: But these things were in the beginning of the Norman Reign, in after times this fashion was altered, says Ingulph.

I, and these things were before the Normans Government. Let King Edgar his Staff cut in the middle,* 1.15 and given to Glastenbury Abbey for a testimony of his Grant, be also here for a testimony. And our Antiqua∣ry has it of Pusey in Berkshire,

That those who go by the name of Pu∣sey do still hold by a Horn, which heretofore had been bestowed upon their Ancestors by Knute the Danish King.

* 1.16 In like manner, to the same purpose an old Book tells this story:

That one Vlphus the Son of Toraldus, turned aside into York, and filled the Horn that he was used to drink out of, with Wine; and before the Altar upon his bended knees, drinking it, gave away to God and to St. Peter, the Prince of the Apostles, all his Lands and Revenues.

Which Horn of his, saith Camden, we have been told was kept or reserved down to our Fathers memory. We may see the conveyance of Estate, how easie it was in those days, and clear from the punctilio's of Law, and withal how free from the captious malice of those petty-foggers who would intangle Titles and find flaws in them, and from the swelling Bundles and Rolls of Parchments now in use.

But commend me to Godwin Earl of Kent,* 1.17 who was, to use H••gesander's word, too great a 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, catcher at Syllables, and as the Come∣dian says, more shifting than a Potters wheel:

Give me (saith he to the Arch-Bishop of Canterbury) Boseham. The Arch-Bishop admiring what it was he would be at in that question, saith, I give you Bose∣ham.

He straight upon the confidence of this deceit, without any more ado entred upon an Estate of the Arch Bishops of that name on the Sea-coasts of Sussex,* 1.18 as if it had been his own by Inheritance:

And with the testimony of his people about him, spoke of the Arch-Bishop before the King as the donor of it, and quietly enjoyed it.

Those things I spoke of before (to wit, of Sword, Horn, &c.) smell of that way of investing in∣to Fees which we meet with in Obertus de Orto; but are very unlike to that solemn ceremony which is from ancient time even still used in con∣veying of an Estate and delivering possession, wherein a green Turf or the bough of a growing Tree is required.

4.

They did so much abhor the English tongue ('tis the Abbot of Crowland saith it) that the Laws of the Land, and the Statutes of the En∣glish Kings,* 1.19 were handled or pleaded in the French language. For till the thirty sixth year of Edward the third, all businesses of Law were

pleaded in French. That also in Schools the Rudiments of Grammati∣cal Institution, were delivered to Boys in French and not in English. Also that the English way and manner of Writing was laid aside, and the French mode was made use of in all Charters or Instruments and Books.

Indeed it was such a fault to be ignorant in the French, or not to be able to speak it;* 1.20 that mainly upon this account, in the Reign of William Ru∣fus, Vlstan Bishop of Worcester was censured as unworthy of his place, and deprived of his dignity, who as to other things according to the simplicity of that Age, was Scholar enough. The Abbot whom I quo∣ted, speaks thus of the French Character:

The Saxon hand was used by all the Saxons and Mercians in all their hand-writings, till the time of King Alfred, who had by French Tutors been very well trained up in all Literature; but from the time of the said King, it did by disuse come to be of little account; and the French hand, because it being more legible and more delightful to sight, had the preheminence, grew more and more every day in vogue and use among all the English.

Ne∣vertheless however this business went, we are told that in the memory of our Fathers, and that by an ancient order, there were Lectures of the English-Saxon language, read at Tavistock Abby in Devonshire.

5. That his new Kingdom might not be disturbed by Riots and dis∣orders in the night, he ordered that at the Ringing of a Bell (which they called the Curfew-Bell) all the Lights and Fires should in every little Cottage,* 1.21 a little after the dusk of the Evening, be put out.

6. He that should take a Deer, or aprum, a Boar (so says Huntingdon, but perhaps 'tis caprum, a Buck) or a Roe, was to have his eyes thrust or plucked out, saith Matthew Paris.

7. If any one had slain any one ('tis Huntingdon writes this) be it upon what cause or occasion soever, he was sentenced to a Capital pu∣nishment, he was to die for it

8. If one had forced any woman (so I read aliquam any woman, not aliquem any man, as 'tis in the common Prints) he was to have his Pri∣vities cut off.

Forced her? I, sure enough; and perhaps he that lay with a woman with her consent, was notwithstanding that, served in the same kind too. And in this case I would have you hear what that great Lawyer Albericus Gentilis,* 1.22 his opinion is.

This I say, saith he, that a man hath a greater injury done him, if the woman were not ravished per force, but were debauched and made willing: because in this case her mind is estranged from her Husband; but in that other, not.

CHAP. IV.

Sheriffs and Ihries were before this time. Tha four Terms. Judges to Act without Appeal. Justices of Peace. The Kingr payments made at first in Provisions. Afterwards ehanged into Mony, which the Sheriff of each County was to pay in to the Exchequer. The Constable of Dover and Warder of the Cinque Ports why made. A disorder in Church-affairs Reformed.

POlydore Virgil brings in at this time the first Sheriffs of Counties, and here places the beginning of Juries, or determining of Tryals by the judgment of Twelve; but is out in them both. This of Juries is convin∣ced by a Law of Ethelred in Lambard's explications of Law-terms, and by those irrefragable arguments which the famous Sir Edward Coke brings against it. That other mistake of Sheriffs is confuted by what we have formerly noted out of Ingulph, and by what we shall hereafter somewhere have occasion to remark.* 1.23 Mars being impleaded in the Areopagus, the place of Judgment at Athens, for the murder of Halirothius the Son of Neptune, whom he had slain for Ravishing his Daughter Alcippa; upon his Tryal by twelve Gods, was acquitted by six Sentences or Votes: For if the number were equal and no majority, the Person was not condemn∣ed but discharged. My meaning why I put in this Story, is to shew the most ancient use of this number of twelve in Tryals elsewhere, as well as amongst us. An Italian might well mistake in a concern of England; yet take it not ill at my hands, that I have given you this upon his credit.

9. He appointed that four times every year,* 1.24 there should be kept Conventions or Meetings for several days, in such place as he himself should give order: In which Meetings the Judges sitting apart by them∣selves, should keep Court and do Justice. These are our four Tserms.

10. He appointed other Judges, who without appeal should exercise Jurisdiction and Judgment; from whom as from the bosom of the Prince, all that were ingaged in quarrels, addressing thither, might have right done them, and refer their controverlies to them.

11. He appointed other Rulers or Magistrates, who might take care to see misdemeanors punished;* 1.25 these he called Justices of Peace.

Now one may well imagine, that this name of Office is most certainly of a later date, and a foreign Writer is to be excused by those rights which are afforded to Guests and Strangers (since acting a Busiris his part against them, would be downright barbarous) I say he is to be excu∣sed so far, as not to have his mistakes in the History of the English Nation, too heavily charged upon him.

12. In the Primitive State of the Kingdom after the Conquest

(Ger∣vase of Tilbury in his Dialogue of the Exchequer, saith, this is a thing handled down from our Forefathers)

the Kings had payments made

them out of their Lands, not in sums of Gold or Silver, but only in Vi∣ctuals or Provisions: Out of which the Kings house was supplied with necessaries for daily use; and they who were deputed to this service (the Purveyors) knew what quantity arose from each several land. But yet as to Soldiers pay or donatives, and for other necessaries concerning the Pleas of the Kingdom, or Conventions, as also from Cities and Ca∣stles where they did not exercise Husbandry or Tillage; in such instan∣ces, payments were made in ready mony. Wherefore this Institution lasted all the time of William the First, to the time of King Henry his Son, so that I my self (Gervase flourished in the Reign of Henry the se∣cond) have seen some people, who did at set times carry from the Kings Lands, victuals or provisions of food to Court. And the Officers also of the Kings house knew very well, having it upon account, which Counties were to send in Wheat, which to send in several sorts of flesh, and Provender for the Horses. These things being paid according to the appointed manner and proportion of every thing, the Kings Officers reckoned to the Sheriffs by reducing it into a sum of pence; to wit, for a measure of Wheat to make bread for a hundred men, one shilling; for the body of a pasture-fed Beef, one shilling; for a Ram or a Sheep four pence; for the allowance of twenty horses likewise four pence: But in process of time, when as the said King was busie in remote parts beyond Sea to appease Tumults and Insurrections; it so happened, that ready mony was highly necessary for him to supply his occasions. In the mean time, there came in multitudes, a great company of Husbandmen with complaints to the Kings Court, or which troubled him more, they frequently came in his way as he was passing by, holding up their Ploughshares, in token that their Husbandry was running to decay; for they were put to a world of trouble, upon occa∣sion of the provisions which they carried from their own quarters through several parts of the Kingdom. Thereupon the King being moved with their complaints, did by the resolved advice of his Lords, appoint throughout the Kingdom such persons, as he knew were, for their prudence and discretion, fit for the service. These persons going about, and that they might believe their own eyes, taking a view of the several Lands, having made an estimate of the provisions which were paid out of them, they reduced it into a sum of pence. But for the total sum, which arose out of all the Lands in one County, they or∣dered, that the Sheriff of that County should be bound to the Exche∣quer:

Adding this withal, that he should pay it at the Scale. Now the manner of paying, the tryal of the weight and of the metal by Chy∣mical operation, the Melter or Coyner, and the surveyor of the Mint, are more largely handled and explained by my self in some other work of mine.

13. That he might the more firmly retain Kent to himself, that be∣ing accounted as it were the Key of England; ('tis the famous Mr. Cam∣den tells the Story) he set a Constable over Dover-Castle, and made the same person Warden of the Cinque Ports, according to the old usage of the Romans. Those are Hastings, Dover, Hith, Rumney, and Sandwich; to which are joyned Winchelsey and Rye as Principals, and other little Towns as Members.

14. To put the last hand to William, I add out of the Archives, this Law, not to be accounted among the last or least of his.

William, by the Grace of God,* 1.26 King of the English, to all Counts or Earls, Viscounts or Sheriffs, and to all French born, and English men, who have Lands in the Bishoprick of Remigius, greeting.

This Remigius was the first who translated the Episcopal See from Dorchester to Lincoln.

Be it known unto you all, and the rest of my Liege Subjects, who abide in England; that I, by the common advice of my Arch-Bishops, and the rest of the Bishops and Abbots, and all the Princes of my King∣dom, have thought fit to order the amendment of the Episcopal Laws, which have been down to my time, in the Kingdom of the Angles, not well, nor according to the Precepts of the holy Canons, ordained or administred: Wherefore I do command, and by my Royal Autho∣rity strictly charge; that no Bishop or Arch-deacon, do henceforth hold Pleas in the Hundred concerning Episcopal Laws; nor bring any cause which belongs to the Government of Souls (i. e. to spiritual affairs) to the judgment of secular men; but that whosoever, according to the Episcopal Laws, shall for what cause or fault soever be summoned, shall come to a place which the Bishop shall chuse and name for this purpose; and there make answer concerning his cause, and do right to God and his Bishop, not according to the Hundred, but according to the Canons and Episcopal Laws.

For in the time of the Saxon Empire, there were wont to be present at those Country Meetings (the Hundred Courts) an Alderman and a Bishop,* 1.27 the one for Spirituals, the other for Temporals, as appears by King Edgar's Laws.

CHAP. V.

William Rufus succeeds. Annats now paid to the King. Why claimed by the Pope. No one to go out of the Land without leave. Hunting of Deer made Felony.

AFter the death of William, his second Son WILLIAM sir∣named RVFVS succeeded in his room. All Justice of Laws (as Florentius of Worcester tells us)

was now husht in silence, and Causes being put under a Vacation without hearing, money alone bore sway among the great ones,

Ipsaque majestas auro corrupta jacebat.* 1.28

that is,

And Majesty it self being brib'd with gold, Lay, as a prostitute, expos'd to th' hold.

15. The right or duty of First-Fruits, or, as they are commonly called, the Annats, which our Kings claimed from vacant Abbies and Bishopricks, Polydor Virgil will have to have had its first original from Rufus. Now the Popes of Rome laid claim to them anciently; a sort of Tribute, which upon what right it was grounded,* 1.29 the Council of Basil will in∣form us, and by what opinion and resolution of Divines and Lawyers confirmed, Francis Duarenus in his Sacred Offices of the Church will instruct us. 'Tis certain, that Chronologers make mention, that at his death the Bishopricks of Canterbury, Winchester and Salisbury, and twelve Monasteries beside, being without Prelates and Abbots, paid in their Revenues to the Exchequer.

16.

He forbad by publick Edict or Proclamation (sayes the same Author) that any one should go out of England without his leave and Passport.

We read, that he forbad Anselm the Arch-Bishop, that he should not go to wait upon Pope Vrban; but that he comprehended all Subjects whatsoever in this his Royal order, I confess I have not met with any where in my reading, but in Polydor.

17.

He did so severely forbid hunting of Deer (saith William of Malmesbury) that it was Felony, and a hanging matter to have taken a Stag or Buck.

CHAP. VI.

Henry the First why called Beauclerk. His Letters of Repeal. An Order for the Relief of Lands. What a Hereot was. Of the Marriage of the Kings Homagers Daughter, &c. Of an Orphans Marriage. Of the Widows Dowry. Of other Homagers the like. Coynage-money remitted. Of the disposal of Estates. The Goods of those that dye Intestate, now and long since, in the Churches Jurisdiction; as also the business of Wills. Of Forfeitures. Of Misdemeanors. Of Forests. Of the Fee de Hanberk. King Edward's Law restored.

WIlliam, who had by direful Fates been shewn to the World, was followed by his Brother Henry, who for his singular Learning, which was to him instead of a Royal Name, was called Beau-clerk. He took care of the Common-wealth, by amending and making good what had slipt far aside from the bounds of Justice, and by softning with wholsome remedies those new unheard of, and most grievous injuries, which Ralph afterwards Bishop of Durham (being Lord Chief Justice of the whole Kingdom) plagued the people with. He sends Letters of Repeal to the High Sheriffs, to the intent, that the Citizens and people might enjoy their liberty and free rights again. See here a Copy of them, as they are set down in Matthew Paris.

HENRY by the Grace of God King of England, to Hugh of Bock∣land, High Sheriff, and to all his Liege people, as well French as English in Herefordshire, Greeting. Know ye, that I through the mercy of God, and by the common advice of the Barons of the Kingdom of England have been crowned King. And because the Kingdom was opprest with unjust exactions, I out of regard to God, and that love which I bear towards you all, do make the holy Church of God free, so that I will neither sell it, nor will I put it to farm, nor upon the death of Arch-Bishop, or Bishop, or Abbot, will I take any thing of the domain of the Church, or of the men thereof, till a Successor enter upon it. And all evil Customs, wherewith the Kingdom of England was unjustly oppressed, I do henceforward take away; which evil usages I do here in part set down.

18.

If any one of my Barons, Counts or others that hold of me, shall dye, his Heir shall not redeem his Land, as he was wont to do in the time of my Father, but relieve it with a lawful and due relief. In like manner also shall the Homagers or Tenants of my Barons relieve their Lands from their Lords with a lawful and just relief.* 1.30 It appears, that in the times of the Saxons a Hereot was paid to the Lord at a Tenants death, upon the account of provision for War (for here in Saxon sig∣nifies an Army:) and that which in our memory now in French is called a Relief (Henry of Bracton sayes, 'tis an engagement to re∣cognize the Lord) doth bear a resemblance of the ancient Hereot. Thereupon it is a guess, saith William Lambard, that the Normans being

Conquerors, did remit the Hereot to the Angles whom they had con∣quered and stripped of all kind of Armour, and that for it they ex∣acted money of the poor wretches.

To this agrees that which is men∣tioned in the State of England concerning the Nobles of Berkshire.

A Tain or Knight of the Kings holding of him, did at his death for a Relief part with all his Arms to the King, and one Horse with a Saddle and another without a Saddle. And if he had Hounds or Hawks, they were presented to the King, that if he pleased he might take them. And in an ancient Sanction of Conrade the First,* 1.31 Emperour of Germany, If a Souldier that is Tenant or Lessee happen to dye, let his Heir have the Fee, so that he observe the use of the greater Vavasors, in giving his Horses and Arms to the Seniors or Lords.

John Mariana takes notice, that the word Seniors in the Vular Languages, Spanish, Italian and French, signifies Lords, and that to have been in use from the time of Charlemain's Reign. But these things you may have in more plenty from the Feudists, those who write concerning Tenures.

19. If any of my Barons or other men (Homagers or Tenants) of mine (I return to King Henry's Charter) shall have a mind to give his Daughter, or Sister, or Niece, or Kinswoman in marriage, let him speak with me about it. But neither will I take any thing of his for this leave and licence, nor will I hinder him from betrothing her, ex∣cept he shall have a design of giving her to an enemy of mine.

20. If upon the death of a Baron, or any other Homager of mine, there be left a Daughter that is an Heiress, I will bestow her with the advice of my Barons together with her Land.

21. If upon the death of the Husband, his Wife be left without Chil∣dren, she shall have her Dowry and right of Marriage, as long as she shall keep her body according to Law; and I will not bestow her, but according to her own liking. And if there be Children, either the Wife, or some one else near of kin shall be their Guardian and Trustee of their Land, who ought to be just.

22. I give order, that my Homagers do in like manner regulate themselves towards the Sons and Daughters and Wives of their Homagers.

23. The common Duty of Money or Coinage, which was taken through all Cities and Counties, which was not in the time of King Edward, I do utterly forbid that henceforward this be no more done.

24. If any one of my Barons or Homagers shall be sick and weak, according as he himself shall give or order any one to give his money, I grant it so to be given; but if he himself being prevented either by Arms or by Sickness, hath neither given his money, nor disposed of it to give, then let his Wife, or Children, or Parents, and his lawful Homagers for his souls health divide it, as to them shall seem best.

And in Canutus his Laws,* 1.32

Let the Lord or Owner at his own discretion make a just distribution of what he hath to his Wife and Children and the next of kin.

But at this time, and long since, Church-men have been as it were the Distributors and Awarders of the Goods of such per∣sons

as dye Intestate, or without making their Wills, and every Bishop as Ordinary in his own Diocess, is the chief Judge in these cases.

John Stratford Arch-Bishop of Canterbury saith it,* 1.33 and it is averred in the Records of our Law, that this Jurisdiction also concerning Wills, was of old long time ago in an ancient Constitution, intrusted to the Church by the consent of the King and Peers. However, in what Kings time this was done, neither does he relate, nor do I any where find,* 1.34 as William Lindwood in his Provincial acknowledgeth. It is a thing very well known, that after Tryal of right, Wills were wont to be opened in the Ecclesiastical Court even in the Reign of Henry the Second (Ralph Glanvill is my witness) contrary to what order was taken in the Imperial Decrees of the Romans. And peradventure it will appear so to have been before Glanvill, as he will tell you, if you go to him; although you have, quoted by my self some where, a Royal Rescript or Order to a High Sheriff,

That he do justly and without delay cause to stand (i. e. appoint and confirm) a reasonable share to such an one;

that is, that the Legatee may obtain and enjoy his right, what was be∣quested to him by the Sheriffs help. I come back now to my track again.

25. If any one of my Barons or Homagers shall make a forfeit, he shall not give a pawn in the scarcity of his money, as he did in the time of my Brother or my Father, but according to the quality of his forfei∣ture: nor shall he make amends, as he would have done heretofore in my Brothers or Fathers time.

26. If he shall be convicted of perfidiousness or of foul misdemea∣nors, as his fault shall be, so let him make amends.

27. The Forests by the common advice of my Barons, I have kept in mine own hand, in the same manner as my Father had them.

28. To those Souldiers or Knights who hold and maintain their Lands by Coats of Male (that is,* 1.35 per fee de Hauberke, that they may be ready to attend their Lords with Habergeons or Coats of Male com∣pleatly armed Cap a pee) I grant the Plough-lands of their Domainsac∣quitted from all Gelds, and from every proper Gift of mine, that, as they are eased from so great a Charge and Grievance, so they may furnish themselves well with Horse and Arms, that they may be fit and ready for my service, and for the defence of my Realm.

29. I restore unto you the Law of King Edward, with other amend∣ments, wherewith my Father amended it.

Those amendments are put forth by Lambard. Hitherto out of those Royal and general Letters, directed to all the Subjects.

CHAP. VII.

His order for restraint of his Courtiers. What the punishment of Theft. Coyners to lose their Hands and Privy-members. Guelding a kind of death. What Half-pence and Farthings to pass. The right measure of the Eln. The Kings price set for provisions.

30.

HE did by his Edict or Proclamation, restrain the Rapines, Thefts, and Rogueries of the Courtiers; ordering, that those who were caught in such pranks, should have their Eyes with their Stones pulled out.

This Malmesbury supplies us with. But Florentius of Worcester and Roger Hoveden give the account, that he pu∣nished Thieves with Death and Hanging, otherwise than that pleasant and curious man Thomas Moor in his Vtopia would have his people to be dealt with.* 1.36 Yet I am inclined rather to believe Malmesbury; not only upon the authority of the man, in comparison of whose Rose-beds (if you well weigh the Learning of that Age) the other pack of Writers are but sorry low shrubs; but also upon the account of a nameless Monk,* 1.37 who in his Book of the Miracles of S. Thomas of Canterbury, tells us a story of one Eilward, a poor mean fellow of Kingsweston in Berk∣shire, who being in the Reign of King Henry the Second condemned of Theft (he had it seems stoln a pair of Countrey Gloves and a Whet∣stone) was punished by losing his Eyes and Privities; who coming with devotion to S. Thomas his Tomb, got an intire restitution of his disap∣pearing Members and Faculties, and was as good a man as ever he was. Perchance in this he is no witness of infallible credit. Let the story of Iphis and Ianthis, and that of Ceneus try Masteries with this for the Wher∣stone; to our purpose the Writer is trusty enough. But in the first times of the Normans, I perceive, that the Halter was the ill consequence of Theft.

Let it be lawful for the Abbot of that Church, if he chance to come in in the God speed, to acquit an High-way-man or Thief from the Gallows.

They are the words of the Patent with which William the Conquerour, to expiate the slaughter of Harald, consecra∣ted a Monastery to S. Martin near Hastings on the Sea-coast of Sussex, and priviledged it with choice and singular rights.

31.

Against Cheats, whom they commonly call Coyners ('tis Malmesbury speaks again) he shewed his particular diligence, permit∣ting no cheating fellow to escape scot-free, without losing his Fist or Hand, who had been understood to have put tricks upon silly people with the traffick of their falshood.

For all that, he who hath tackt a sup∣plement to Florentius of Worcester,* 1.38 and William Gemeticensis give out, that the Counterfeiters and Imbasers of Coin had, over and above those parts cut off, which Galen accounts to be the principal instruments for propagating of the kind. To whom Hoveden agrees, who writes in the Life of Henry the First,

That Coyners by the Kings order being taken, had their right Hands and their Privy-members cut off.

Upon this account sure, that he that was guilty of such a wicked crime, should have no hope left him of posterity, nor the Common-wealth be in any

further fear of those who draw villainous principles from the loins of those that beget them.

Now at this very time and in former Ages too, this piece of Treason was punished with Halter and Gallows; and that also of Theft not only in England,* 1.39 but almost in all Countreys, especially Robbery upon the High-way, which is committed by those who lay wait to surprize Pas∣sengers as they travel along upon one or other side of them; whence not only in the Latin, but in the holy Language also, a High-way-man hath his name. And truly among the Ancients guelding was lookt upon as a kind of death. The Apostles Canons give him the character and censure of a Manslayer, who cuts off his own Privities (who lives all his life a Batchelor, say the Talmudists) and he who cuts off another mans, is in danger of the Cornelian Law concerning Murderers and Cut∣throats; and so was it heretofore among the English.

32. He ordered (they are Hoveden's words) that no half-penny, which also he commanded should be made round, or farthing also, if it were intire, should be refused.

33. He corrected the Merchants false Eln (so sayes the Monk of Malmesbury) applying the measure of his Arm, and proposing that to all people over England.

34. He gave order to the Courtiers, in whatsoever Cities or Vil∣lages he were, how much they were to take of the Countrey people gratis, and at what price to buy things; punishing offendors herein ei∣ther with a great Fine of money, or with loss of life.

CHAP. VIII.

The Regality claimed by the Pope, but within a while resumed by the King. The Coverfeu dispensed with. A Subsidy for marrying the Kings Daughter. The Courtesie of England. Concerning Shipwrack. A Tax levied to raise and carry on a War.

35.

ANselm Arch-Bishop of Canterbury labours earnestly with the Pope and his party, and at length obtains it with much ado, that from that time forward (you have it in Florilegus after other Writers) never any one should be invested with a Pastoral Staff or a Ring into a Bishoprick or Abbacy by the King, or any Lay-person whatsoever in England, (added out of Malmesbury) retaining however the priviledge of Election and Regality.

There was a sharp bickering about this business betwixt the King and Anselm; and so between the Popes Pas∣chalis and Calixtus and Henry about that time Emperour. Both of them at least pretendedly quit their right; our King humouring the Scene according to the present occasion.

For after Anselm's death, he did invest Rodulphus that came in his room by a Ring and a Pastoral Staff.

36. He restored the Night-Torches or Lights which William the First had forbidden;* 1.40 forasmuch as he now had less reason to appre∣hend any danger from them, the Kingdom being in a better and fir∣mer posture.

37. To make up a portion for Mawd the Kings Daughter, married to Henry the Emperour, every Hide of Land paid a Tribute of Three Shillings. Here Polydore makes his descant.

Afterward, sayes he, The rest of the Kings followed that course of raising Portions for the bestowal of their Daughters; so tenacious hath posterity alway been of their own advantages.

It is scarce to be doubted, that the right of raising money for the marrying of the Lords Daughters by way of Aid or Subsidy upon the Tenants or Dependants, is of a more ancient ori∣ginal. Neither would I fetch it from the mutual engagement of Romu∣lus his Patrons and Clients, or Landlords and Tenants, or from Suetonius his Caligula: rather from the old Customs of the Normans, more ancient than King Henry; where that threefold Tribute is explained by the name of Aid, which the Patent granted by King John in favour of pub∣lick liberty mentions in these words:

I will impose no Escuage or Aid in our Realm, but by the common advice of our Realm; unless it be to ransom our Body, and to make our first-born Son a Soldier or Knight, and to marry our eldest Daughter once.

38. Some ascribe that Law to Henry,* 1.41 which Lawyers call the Courtesie of England; whereby a man having had a Child by his Wife, when she dyes, enjoyes her Estate for his life.

39. He made a Law, that poor shipwrackt persons should have their Goods restored to them, if there were any living creature on Ship-board, that escaped drowning.* 1.42 Forasmuch as before that time, whatsoever through the misfortune of shipwrack was cast on Shoar, was adjudged to the Exchequer; except that the persons who suffered shipwrack and had escaped alive, did themselves within such a time refit and repair the Vessel. So the Chronicle of the Monastery of S. Martin de Bello. This right is called Wreck, or if you will, Uareck, of the Sea. How agree∣able to the Law of Nations, I trouble not my self to enquire. That more ancient Custom, is as it were suitable to the Norman usage. Now at this time our Lawyers (and that the more modern Law of Edward the First) pass judgement according to the more correct Copy of King Henry. And they reckon it too among the most ancient Customs of the Kingdom.* 1.43 Did therefore King Richard order, or did Hoveden relate this to no purpose, or without any need?

If one who suffers shipwrack dye in the Ship, let his Sons or Daughters, his Brethren or Sisters have what he left, according as they can shew and make out that they are his next heirs. Or if the deceased have neither Sons nor Daughters, nor Brothers nor Sisters, the King is to have his Chattels.

Can one imagine, that this Law he made at Messina, when he was engaged in War, was calculated only for that time or place? Certainly in the Archives there is elsewhere to be met with as much as this.

40. That he might with a stout Army bear the brunt of Baldwin Earl of Flanders and Louis King of France, who had conspired, being bound by mutual Oaths to one another with the Duke of Anjou, to take away from King Henry by force of Arms the Dutchy of Normandy,

he first of all (tis Polydore avers it) laid a heavy Tax upon the people, to carry on the new War; which thing with the Kings that followed after, grew to be a custom.

He was the last of the Normans of a Male descent, and as to the me∣thod of our undertaking, here we treat of him last.

CHAP. IX.

In King Stephen's Reign all was to pieces. Abundance of Castles buili. Of the priviledge of Coming. Appeals to the Court of Rome now set on foot. The Roman Laws brought in, but disowned. An instance in the Wonder-working Parliament.

AS of old, unless the Shields were laid up, there was no Dancing at Weddings; so except Arms be put aside, there is no pleading of Laws. That Antipathy betwixt Arms and Laws, England was all over sensible of, if ever at any time, in the Reign of K. STEPHEN, Count of Blois, King Henry's Nephew by his Sister Adela. For he did not only break the Law and his Oath too to get a Kingdom, but also being sa∣luted King, by those who perfidiously opposed Mawd the right and true heir of King Henry, he reigned with an improved wickedness.

For he did so strangely and odly chop and change every thing (it is Malms∣bury speaks it) as if he had sworn only for this intent, that he might shew himself to the whole Kingdom, a Dodger and Shammer of his Oath.

But, as he saith,

—perjuros merito perjuria fallunt?* 1.44

that is,

Such men as Perjuries do make their Trade, By their own Perjuries most justly are betray'd.

They are things of custom to which he swore, and such as whereby for∣mer priviledges are ratified, rather than new ones granted. However, some things there are, that may be worth the transcribing.

41.

Castles were frequently raised ('tis Nubrigensis relates it) in the several Counties by the bandying of parties; and there were in En∣gland in a manner as many Kings, or rather as many Tyrants, as Lords of Castles, having severally the stamping of their own Coin, and a power of giving Law to the Subjects after a Royal manner.

then was the Kingdom plainly torn to pieces, and the right of Majesty shattered, which gains to it self not the least lustre from stamping of Money. Though I know very well,* 1.45 that before the Normans, in the City of Ro∣chester, Canterbury, and in other Corporations and Towns, Abbots and Bishops had by right of priviledge their Stampers and Coiners of Money.

42. Next to the King, Theobald Arch-Bishop of Canterbury presided over the Council of London (where there were also present the Peers of the Realm)

which buzzed with new appeals. For in England (tis Henry of Huntington sayes it) appeals were not in use, till Henry Bishop of Winchester,* 1.46 when he was Legate, cruelly intruded them to his own mischief.

Wherefore what Cardinal Bellarmin has writ, be∣ginning

at the Synod of Sardis, concerning the no body knows how old time of the universal right of appealing to the Pope of Rome, does not at all, as to matter of fact, seem to touch upon this Kingdom of ours by many and many a fair mile.

43.

In the time of King Stephen (fo 'tis in the Polycraticon of John of Salisbury) the Roman Laws were banisht the Realm,* 1.47 which the House of the Right Reverend Theobald Lord Primate of Britanny had fetcht or sent for over into Britanny. Besides, it was forbidden by Royal Pro∣clamation, that no one should retain or keep by him the Books.

If you understand the Laws of the Empire (I rather take them to be the Decrees of the Popes) it will not be much amiss, out of the Parlia∣ment Records to adjoyn these things of later date. In the Parliament holden by Richard of Bourdeaux, which is said to have wrought Wonders, Upon the Impeachment of Alexander Nevil Arch-Bishop of Canterbury, Robert Uere Duke of Ireland, Michael Pole Earl of Suffolk, Thomas Duke of Glocester, Richard Earl of Arundel, Thomas Beauchamp Earl of Warwick, and others, That they being intrusted with the management of the Kingdom, by soothing up the easie and youthful temper of the King, did assist one another for their own private interest, more than the publick, well near to the ruine and overthrow of the Government it self; the Common Lawyers and Civilians are consulted with, about the form of drawing up the Charge; which they answer all as one man, was not agreeable to the rule of the Laws. But the Barons of Par∣liament reply, That they would be tyed up to no rules, nor be led by the punctilioes of the Roman Law, but would by their own authority pass judgement;* 1.48 pur ce que la royalme d' Angleterre n' estoit devant ces heures, n'y à l' entent de nostre dit Seigneur le Roy & Seigneurs de Parlament unque ne serra rules ne gouvernes per la Loy Civil: that is, inasmuch as the Realm of England was not before this time, nor in the intention of our said Lord the King and the Lords of Parliament ever shall be ruled or governed by the Civil Law. And hereupon the persons impleaded are sentenced to be banished.

But here is an end of Stephen: He fairly dyed.

CHAP. X.

In King Henry the Seconds time, the Castles demolished. A Par∣liament held at Clarendon. Of the Advowson and Presentation of Churches. Estates not to be given to Monasteries without the Kings leave. Clergymen to answer in the Kings Court. A Cler∣gyman convict, out of the Churches Protection. None to go out of the Realm, without the Kings leave. This Repealed by King John. Excommunicate Persons to find Surety. Laymen how to be impleaded in the Ecclesiastical Court. A Lay-Jury to swear there, in what case. No Homager or Officer of the Kings to be Excommunicated, till He or his Justice be acquainted.

AT length, though late first, Henry the Son of Jeoffry Plantagenet, Count of Angers by the Empress Mawd, came to his Grandfatherrs Inheritance. Having demolished and levelled to the ground, the Ca∣stles which had, in King Stephen's time, been built, to the number of eleven hundred and fifteen; and having retrieved the right of Majesty in∣to its due bounds, he confirmed the Laws of his Grandfather.

More∣over, at Clarendon in Wiltshire, near Salisbury, John of Oxford being President, by the Kings own Mandate, there being also present the Arch-Bishops, Bishops, Abbots, Priors, Earls, Barons, and Peers of the Realm, other Laws are recognized and passed;

whilst at first those who were for the King on one side, those who were for the Pope on the other, with might and main stickle to have it go their way; these latter pleading, that the secular Court of Justice did not at all suit with them, upon pretence that they had a priviledge of Immunity. But this would not serve their turn; for such kind of Constitutions as we are now setting down, had the Vogue.

44.

If any Controversie concerning the Advowson and Presenta∣tion of Churches, arise betwixt Laymen, or betwixt Laymen and Cler∣gymen, or betwixt Clergymen among themselves; let it be handled and determined in the Court of the Lord our King.

45.

The Churches which are in the Kings Fee, cannot be given to perpetuity without his assent and concession.

* 1.49 Even in the Saxons times it seems it was not lawful, without the Kings favour first obtained, to give away Estates to Monasteries; for so the old Book of Abington says.

A Servant of King Ethelred's called Vlfric Spot, built the Abby of Bur∣ton in Staffordshire,* 1.50 and gave to it all his Paternal Estate, appraised at seven hundred pounds; and that this donation might be good in Law, he gave King Ethelred three hundred Marks of Gold for his confirmati∣on of it, and to every Bishop five Marks, and over and above to Alfric Arch-Bishop of Canterbury, the Village of Dumbleton.

46. Clergymen being arighted and accused of any matter whatso∣ever, having been summoned by the Kings Justice, let them come into his Court, there to make answer to that, of which it shall be thought

fit that there answer ought to be made: So that the Kings Justice send into the Court of Holy Church, to see after what manner the business there shall be handled.

47. If a Clergyman shall be convicted, or shall confess the Fact; the Church ought not from thenceforth to give him protection.

48.

It is not lawful for Arch-Bishops, Bishops, and Persons of the Kingdom, to go out of the Realm without leave of our Lord the King: And if they do go out, if the King please, they shall give him security, that neither in going, nor in returning, or in making stay, they seek or devise any mischief or damage against our Lord the King.

Whether you refer that Writ, we meet with in the Register or Record, NE EXEAS REGNVM, for Subjects not to depart the Kingdom to this time or instance, or with Polydore Virgil to William Rufus, or to la∣ter times, is no very great matter: Nor will it be worth our while, cu∣riously to handle that question: For who, in things of such uncertainty, is able to fetch out the truth? Nor will I abuse my leasure, or spend time about things unapproachable.

An sit & hic dubito,* 1.51 sed & hic tamen auguror esse.

Says the Poet in another case: And so say I.

Whether it be here or no, Is a Question, I confess: And yet for all that, I trow, Here it is too, as I guess.

Out of King John's great Charter, as they call it, you may also com∣pare or make up this Repeal of that Law in part.

Let it be lawful hence∣forward for any one to go out of our Realm, and to return safely and securely by Land and by Water, upon our Royal word; unless in time of War, for some short time, for the common advantage of the King∣dom; excepting those that are imprisoned and out-lawed according to the Law of the Kingdom, and any People or Nation, that are in actual War against us: And Merchants, concerning whom let such Order be taken, as is afore directed.

I return to King Henry.

49. Excommunicate Persons ought not to give suretiship for the Re∣mainder, nor to take an Oath; but only to find Surety and Pledge, to stand to the Judgment of the Church, that they may be ab∣solved.

50. Persons of the Laity ought not to be accused or impleaded but by certain and legal Accusers and Witnesses, in the presence of the Arch-Bishop or Bishop: so that the Arch-Deacon may not lose his right, nor any thing which he ought to have therefrom.

51. If they be such Persons who are in fault, as no one will or dare to accuse; let the Sheriff being thereunto required by him, cause twelve legal men of the Voisinage or of the Village, to swear before the Bi∣shop, that they will manifest or make known the truth of the matter according to their Conscience.

52. Let no one who holds of the King in capite, nor any one of the Kings Officers or Servants of his Domain, be excommunicated; nor the Lands of any of them be put under an Interdict or prohibition; un∣less first our Lord the King, if he be in the Land, be spoke with; or his Justice, if he be out of the Land, that they may do right by him: And so that what shall appertain to the Kings Court, may be determined there; and as to what shall belong to the Ecclesiastical Court, it may be sent thither and there treated of.

CHAP. XI.

Other Laws of Church affairs. Concerning Appeals. A Suit betwixt a Clergyman and a Layman, where to be Tryed. In what case one, who relates to the King, may be put under an Interdict. The difference betwixt that and Excommunication. Bishops to be present at Tryals of Criminals, until Sentence of Death, &c. pass. Profits of vacant Bishopricks, &c. belong to the King. The next Bishop to be Chosen in the Kings Chappel, and to do Homage before Consecration. Deforcements to the Bishop, to be righted by the King. And on the contrary, Chattels forfeit to the King, not to be detained by the Church. Pleas of debts what∣soever in the Kings Court. Yeomens Sons not to go into Orders without the Lords leave.

53.

COncerning Appeals,* 1.52 if at any time there shall be occasion for them, they are to proceed from the Arch-Deacon to the Bi∣shop, and from the Bishop to the Arch-Bishop; and if the Arch-Bishop shall be wanting in doing of Justice, they must come in the last place to our Lord the King; that by his precept or order, the Controversie may be determined in the Arch-Bishops Court, so as that it ought not to proceed any further without the Kings assent.

This Law, long since,* 1.53 the famous Sir Edward Coke made use of, to assert and main∣tain the Kings Ecclesiastical Jurisdiction, as a thing not of late taken up by him, but anciently to him belonging.

54. If a Claim or Suit shall arise betwixt a Clergyman and a Lay-man, or betwixt a Layman and a Clergyman, concerning any Tene∣ment which the Clergyman would draw to the Church, and the Lay-man to a Lay-fee; it shall by the recognizance of twelve legal men, upon the consideration and advisement of the Lord Chief Justice, be de∣termined, whether the Tenement do appertain to Alms (i. e. to the Church) or to Lay-Estate, before the Kings own Justice. And if it shall be recognized or adjudged to appertain to Alms; it shall be a Plea in the Ecclesiastical Court: But if to a Lay-fee, unless they both avow or avouch the Tenement from the same Bishop or Baron, it shall be a Plea in the Kings Court. But if each of them shall for that fee avouch the same Bishop or ••aron, it shall be a Plea in that Bishops or Barons Court; so that he who was formerly seised, shall not, by reason of the Recognizance made, lose the Seisin, till it shall by Plea be deraigned.

55.

He who shall be of a City, or a Castle, or a Burrough, or a Manner of the Kings Domain, if he shall be cited by an Arch-Deacon or a Bishop, upon any misdemeanour, upon which he ought to make answer to him, and refuse to satisfie upon their summons or citations; they may well and lawfully put him under an Interdict or Prohibition; but he ought not to be Excommunicated.

(By the way) seasonably re∣mark out of the Pontificial Law, that that Excommunication, they call

the greater, removes a man and turns him out from the very Communi∣on and Fellowship of the Faithful; and that an Interdict, as the lesser Excommunication, separates a man, and lays him aside only, forbidding him to be present at Divine Offices, and the use of the Sacraments.)

I say he ought not to be Excommunicated, before that the Kings Chief Justice of that Village or City be spoken with, that he may order him to come to satisfaction: And if the Kings Justice fail therein, he shall be at the Kings mercy, and thereupon or after that the Bishop may pu∣nish him upon his impleadment, with the Justice of the Church.

56. Arch-Bishops, Bishops, and all Persons whatsoever of the King∣dom, who hold of the King in capite, and have their possessions from our Lord the King in nature of a Barony, and thereupon make answer to the Kings Justices and Officers, and perform all Rights and Customs due to the King as other Barons do; they ought to be present at the Tryals of the Court of our Lord the King with his Barons, until the losing of Limbs or death, be adjudged to the party tried.

57. When an Arch-Bishoprick or Bishoprick, or Abbacy, or Priory of the Kings Domain shall be void; it ought to be in his hand, and thereof shall he receive all the profits and issues as belonging to his Do∣main: And when the Church is to be provided for, our Lord the King is to order some choice persons of the Church, and the Election is to be made in the Kings own Chappel, by the assent of our Lord the King, and by the advice of those persons of the Kingdom, whom he shall call for that purpose; and there shall the Person Elect (saving his order) before he be Consecrated, do Homage and Fealty to our Lord the King, as to his Liege Lord, for his life and limbs, and for his Earthly Ho∣nour.

58. If any one of the Nobles or Peers do deforce to do Justice to an Arch-Bishop, Bishop, or Arch-Deacon, for themselves or those that belong to them; the King in this case is to do justice.

59. If peradventure any one shall deforce to the Lord the King his Right; the Arch-Bishop, Bishop, and Arch-Deacon, ought then in that case to do justice (or to take a course with him) that he may give the King satisfaction.

60. The Chattels of those who are in the Kings forfeit, let not the Church or Church-yard detain or keep back against the justice of the King; because they are the Kings own, whether they shall be found in Churches or without.

61. Pleas of debts which are owing, either with security given, or without giving security, let them be in the Kings Court.

62. The Sons of Yeomen or Country people, ought not to be ordain∣ed or go into holy Orders, without the assent of the Lord, of whose Land they are known to have been born.

CHAP. XII.

The Statutes of Clarendon mis-reported in Matthew Paris, a∣mended in Quadrilegus. These Laws occasioned a Quarrel be∣tween the King and Thomas a Becket. Witness Robert of Glocester, whom he calls Yumen. The same as Rusticks, i. e. Villains. Why a Bishop of Dublin called Scorch-Uil∣lein. Villanage before the Normans time.

I Confess there is a great difference between these Laws and the Sta∣tutes of Clarendon, put forth in the larger History of Matthew Paris, I mean those mangled ones: and in some places, what through great gaps of sence, disjointings of Sentences, and misplacings of words, much depraved ones, whose misfortune I ascribe to the carelesness of Transcri∣bers. But the latter end of a Manuscript Book commonly called Quadri∣legus, (wherein the Life of Thomas, Arch Bishop of Canterbury, is out of four Writers, to wit, Hubert of Boseham, John of Salisbury, William of Canterbury, and Alan, Abbot of Tewksbury, digested into one Volume) hath holp us to them amended as you may see here, and set to rights. It is none of our business to touch upon those quarrels, which arose upon the account of these Laws betwixt the King and Thomas of Canterbury: Our Historians do sufficiently declare them. In the mean time, may our Poet of Glocester have leave to return upon the Stage, and may his Verses written in ancient Dialect, comprising the matter which we have in hand, be favourably entertained.

No man ne might thenche the love that there was Bitwene the K. H. and the good man S. Thomas; The diuel had enui therto, and sed bitwen them feu, Alas, alas thulke stond, vor all to well it greu. Uor there had ere ibe kings of Luther dede As W. Bastard, and his son W. the rede. That Luther Laws made inou, and held in al the lond The K. nold not beleue the lawes that he fond, Ne that his elderne hulde, ne the godeman S. Thomas Thought that thing age right neuer law nas. Ne sothnes and custom mid strength up i••old, And he wist that vre dere Lourd in the Gospel told That he himselfe was sothnes, and custum nought, Theruore Luther custumes he nould graent nought. Ne the K. nould bileue that is elderne ad i••old, So that conteke sprung bituene them manifold. The K. drou to right law mani Luther custume, S. Thomas they withsed, and granted some. The Lawes that icholle now tell he granted vawe. zuf a yuman hath a sone to clergi idraw He ne sall without is lourdes icrouned nought be Uor yuman ne mai nought be made agen is lourds will free.

Those that are born Slaves, or that other sort of servants termed Vil∣lains, he calls by the name of Yumen. We call free born Commoners, alike as Servants, as it were with a badg of ignobleness or ungentility,* 1.54 Yeomen; and those who of that number are married men, Gommen; for it was Gomman in the old Dutch, not Goodman, as we vulgarly pronounce it, which signified a married man. Words, as I am verily perswaded, made from the Latin, Homines; which very word, by En∣nius and Festus, according to the Oscan Idiom, is written Hemones, and in our Language, which comes pretty near that spelling of the Poet, Yeomen. And the Etymon or Origination of the word it self, is very much confirmed by the opinion of some of our own Country Lawyers, who take (but with a mistake) Homines, i. e. men that do homage, and Nativos, i. e. born Slaves, in ancient Pleas to be terms equipollent, and of the same importance. The Constitution of Clarendon style those Ru∣sticks or Countrymen, whom he calls Yumen; and Rusticks and Villains (those among the English were slaves or servants) were anciently synony∣mous words, meaning the same thing. For whereas Henry Londres, Arch Bishop of Dublin, had treacherously committed to the flames, the Charters of his Rustick Tenants, the Free Tenants called him, as we read in the Annals of Ireland,* 1.55 Scorch-Uillein; as if one would say, the burner or firer of Villains.

Nor should I think it unseasonable in this place, to take notice of a mistake or oversight of Thomas Spott, a Monk of Canterbury; who writes, that the English, before the Norman Conquest, knew nothing of private servitude or bondage; i. e. had no such thing as Villanage among them: For he is convinced both by the Maid of Andover,* 1.56 King Edgar's Miss, as also by the Laws signed and sealed by King Ina, and by that Donation or Grant Torald of Bukenhale made to Walgate, Abbot of Crowland: wherein among other things a great many servants are mentioned, with their whole suits and services. Take it also out of the Synod of London, Anselme being President of it) since here belike there is mention made of Servants) That no one henceforward presume to use that ungodly practice, which hitherto they were wont in England to do, to sell, or put to sale, men, (that is, Servants) like brute Beasts.

But we do not do civilly to interrupt the Poet: We must begin again with him; he once more tunes his Pipes.

Another thing he granted eke as ye mow novise; Yuf a man of holi Chirch hath eni lay see, Parson, other what he be, he ssal do therevore Kings service that there valth, that is right ne be vorlore, In plaiding and in assise be and in judgement also. Bote war man ssal be bilemed, other to deth ido. Be granted eke yuf eni man the Kings traitor were, And eni man is chateux to holi chirch here That holi chirch ne solde nought the chateux there let That the K. there other is as is owne is ne wette. Uor all that the felon hath the Kings it is And eche man mai in holi church is owne take iwis. He granted eke that a chirche of the Kings fe In none stede ene and ever ne ssold igiue be

As to hous of religion, without the Kings leve, And that he other the patron the gift first gave. S. Thomas granted well these and other mo And these other he withsede that did him well woe.

1.

Yuf bituene twei leud men were eni striving, Other bituene a leud and a clerc, for holi chirch thing As vor vouson of chirch whether shold the chirch giue, The K. wold that in his court the ple ssold be driue; Uor as much as a leud man that the o parti was Chanliche was under the K. & under no bishop nas.

CHAP. XIII.

The Poet gives account which of those Laws were granted by Thomas a Becket, which withstood. Leudemen signifies Laymen, and more generally all illiterate Persons.

THat which this Author of ours calls Leudemen, the Interpreters of Law, both our Common and the Canon Law call Laicks, or Laymen. For as 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, i. e. people, as it is derived by Caesar Germanicus,* 1.57 upon Araetus his Phaenomena after Pindar, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, i. e. from a Stone, denotes a hard and promiscuous kind of men; so the word Leudes im∣ports the illiterate herd,* 1.58 the multitude or rabble, and all those who are not taken into holy Orders.* 1.59 Justus Lipsiu•• in his Poliorceticks, discour∣ses this at large; where he searches out the origination of Leodium or Liege, the chief City of the Eburones in the Netherlands. As to what concerns our language, John Gowes and Jeoffry Chaucer, who were the Reformers and Improvers of the same in Verse, do both make it good. Thus Jeoffry.* 1.60

No wonder is a leude man to rust If a Priest be foule on whom we trust.

However, that it signifies an illiterate or unlearned person, as well as one not yet in orders; what he saith elsewhere, informs us.

This every leud Uicar and Parson can say.

And Peter of Blois,* 1.61 and others, use this expression; as well Laymen as Scholars. But let not Chaucer take it ill, that here he must give way to our Glocester Muse.

II.

Another was that no clere, ne bishop nath mo, Ne ssolde without Kings leue out of the lond go. And that hii ssolde suere up the boke ywis. That hii ne sold purchas no uvel the K. ne none of is.

III.

The third was yuf eni man in mausing were I brought, And suth come to amendment, ne age were nought That he ne suore vp the boc, ac borowes find solde To stand to that holy Chirch there of him toky wold.

IV.

The verth was that no man that of the K. buld ought In cheife or in eni servise in mausing were ibrought, Bote the wardeins of holy chirch that brought him thereto, The K. sede or is bailifes wat he ad misdo, And loked verst were thei to amendment it bring, And bote hii wolde by their leue do the mausing.

V.

The vift was, that bishoprikes and Abbeis also That vacans were of prelas in the K. hand were ido,

And that the K. sold all the land as is owne take, Uort at last that him lust eni prelat there make. And than thulke prelat sould in is chapel ichose be. Of is clarks which he wuld to such prelace bise. And than wan he were ichose in is chapel right yere, Homage he solde him do ar he confirmed were.

VI.

The sixt was yuf eni play to chapitle wore idraw, And eni man made is appele, yuf me dude him unlaw, That to the Bishop from Ercedeken is appele sold make, And from Bishop to Arcebissop and suth none other take, And but the Ercebisops court to right him wold bring, That he sold from him be cluthe biuore the King. And from the K. non other mo so that attan end Plaining of holi chirch to the K. shold wend. And the K. amend solde the Ercebissops dede, And be as in the Popes stude, and S. Thomas it withsede.

VII.

The seuethe was that plaiding that of det were To yeld wel thoru truth i••light, and nought i••old nere Althei thoru truth it were, that ple sold be ibrought Biuore the K. and is bailies and to holy chirch nought.

VIII.

The eighth that in the lond citation none nere Thoru bull of the Pope of Rome, and clene bileued were.

IX.

The nithe was that Peters pence that me gadereth manion The Pope nere nought on isend, ac the K. echone.

X.

The tethe was yuf eni Clarke as felon were itake, And vor felon iproved and ne might it not forsake, That me sold him verst disordein and suth thoru there law. And thoru judgement of the land hong him other to draw. Uor these and vor other mo the Godeman S. Thomas Fleu verst out of England and eke imartred was, Uor he sei there nas hote o way other he must stiffe be Other holy chirch was isent, that of right was so fre.

CHAP. XIV.

The Pope absolves Thoms a Becket from his Oath, and damns the Laws of Clarendon. The King resents it, writes to his She∣riffs, Orders a Scisure. Penalties inflicted on Kindred. He provides against an Interdict from Rome. He summons the Bi∣shops of London and Norwich. An Account of Peter Pence.

TO the Laws of Clarendon, which I spoke of, the States of the King∣dom (the Baronage) and with them the Arch-Bishop of Canterbu∣ry, took their Oaths in solemn manner, calling upon God. There were Embassadors sent to Pope Alexander the third, that there might be that bottom also, that he would further confirm and ratifie them. But he was so far from doing that, that he did not only pretend that they did too much derogate from the priviledge of the Clergy, and wholly refuse to give his assent to them; but also having absolved Thomas the Arch-Bishop, at his own request, from the obligation of that Oath he had bound himself with, he condemned them as impious, and such as made against the interest and honour of holy Church. King Henry, as soon as he heard of it, took it, as it was fit he should, very much in dudgeon; grievously and most deservedly storming at the insolence of the Roman Court, and the Treachery of the Bishop of Canterbury. Immediately Letters were dispatcht to the several Sheriffs of the respective Counties,

That if any Clerk or Layman in their Bayliwicks, should appeal to the Court of Rome, they should seise him and take him into firm custody; till the King give order what his pleasure is: And that they should seise into the Kings hand, and for his use, all the Revenues and Possessions of the Arch-Bishops Clerks; and of all the Clerks that are with the Arch-Bishop; they should put by way of safe pledge the Fathers, Mothers, and Sisters, Nephews and Neeces, and their Chattels, till the King give order what his pleasure is.

I have told the Story out of Matthew Paris.

You see in this instance a penalty, where there is no fault: It affects or reaches to their Kindred both by Marriage and Blood? a thing not un∣usual in the declension of the Roman Empire after Angust••••s his time. But let misdemeanors hold or oblige those who are the Authors of them (was the Order of Arcali••s and Honorius,* 1.62 Emperors, to the Lord Chief Justice E••∣t••chianus) nor let the fear of punishment proceed further than the offence is found. A very usual right among the English, whereby bating the ta∣king away the Civil Rights of Blood and Nobility,* 1.63 none of the Posterity or Family of those who lose their honours, do for the most hainous crimes of their Parents, undergo any penalties.

But this was not all, in those Letters I mentioned, he added threats also.

63.

If any one shall be sound carrying Letters or a Mandate from the Pope, or Thomas, Arch-Bishop of Canterbury, containing an interdiction of Christian Religion in England, let him be seised and kept in hold, and let Justice be done upon him without delay, as a Traitor against the King and Kingdom.

This Roger of Hoveden stands by, ready to witness.

64.

Let the Bishops of London and Norwich be summon'd, that they may be before the Kings Justices to do right (i. e. to answer to their charge, and to make satisfaction) that they have contrary to the Statutes of the Kingdom, interdicted the Land of Earl Hugh, and have inflicted a sentence of Excommunication upon him.

This was Hugh Bigod, Earl of Norfolk.

65.

Let St. Peters pence be collected, or gathered, and kept safe.

Those Pence were a Tribute or Alms granted first by Ina King of the West-Saxons; yearly at Lammas to be gathered from as many as

had thirty pence (as we read it in the Confessor's Laws) of live-mony in their house.

These were duly, at a set time, paid in, till the time of Henry the eighth, when he set the Government free from the Papal Tyranny: About which time Polydore Virgil was upon that account in England, Treasurer, or Receiver general.* 1.64 I thought fit to set down an ancient brief account of these pence, out of a Rescript of Pope Gregory to the Arch-Bishops of Canterbury and York, in the time of King Edward the second.

Diocess	li.	s.	d.
Canterbury	07	18	00
London	16	10	00
Rochester	05	12	00
Norwich	21	10	00
Ely	05	00	00
Lincoln	42	00	00
Coventry	10	05	00
Chester	08	00	00
Winchester	17	06	08
Exceter	09	05	00
Worcester	10	05	00
Hereford	06	00	00
Bath	12	05	00
York	11	10	00
Salisbury	17	00	00

It amounts to three hundred Marks and a Noble; that is, two hun∣dred Pounds sterling, and six Shillings and eight Pence.

You are not to expect here the murder of Thomas a Becket, and the story how King Henry was purged of the crime, having been absolved upon hard terms.

Conveniunt cymbae vela minora me••.

My little Skiff bears not so great a Sail.

CHAP. XV.

A Parliament at Northampton. Six Circuits ordered. A List of the then Justices. The Jury to be of twelve Knights. Several sorts of Knights. In what cases Honorary Knights to serve in Juries. Those who come to Parliament by right of Peerage, sit as Barons. Those who come by Letters of Summons, are styled Chevaliers.

NOt long after, the King and the Barons meet at Northampton. They treat concerning the Laws and the administration of Justice: At length the Kingdom being divided into six Provinces or Circuits, there are chosen from among the Lawyers, some, who in every of those Pro∣vinces might preside in the Seat of Justice, Commissioned by the Name of Itinerant Justices, or Justices in Eyre. See here the List and Names of those Justices out of Hoveden.

• Hugh de Cressi.
• Walter Fitz-Robert.
• Robert Mantel.

for

• Norfolk.
• Suffolk.
• Cambridge.
• Huntington.
• Bedford.
• Buckingham.
• Essex.
• Hertford.

• Hugh de Gundeville.
• William Fitz-Ralph.
• William Basset.

for

• Lincoln.
• Nottingham.
• Darby.
• Stafford.
• Warwick.
• Northampton.
• Leicester.

• Robert Fitz-Bernard.
• Richard Gifford.
• Roger Fitz-Reinfrai.

for

• Kent.
• Surrey.
• Southampton.
• Sussex.
• Barkshire.
• Oxford.

• William Fitz-Steeven.
• Bertam de Uerdun.
• Turstan Eitz-Simon.

for

• Hereford.
• Glocester.
• Worcester.
• Shropshire.

• Ralph Fitz-Steeven.
• William Ruffus.
• Gilbert Pipard.

for

• Wiltshire.
• Dorsetshire.
• Somersetshire.
• Devonshire.
• Cornwall.

• Robert de Wals.
• Ralph de Glanville.
• Robert Pikenot.

for

• York.
• Richmond.
• Lancashire.
• Copland.
• Westmoreland.
• Northumberland.
• Cumberland.

These he made to take an Oath, that they would themselves, bona fide, in good faith, and without any deceit or trick, ('tis the same Au∣thor whose words I make use of) keep the under-written Assizes, and cause them inviolably to be kept by the men of the Kingdom.

He men∣tions them under this specious Title.

The ASSISES of King HENRY, made at Clarendon, and renew∣ed at Northampton.

66.

If any one be called to do right (or be served with a Writ) before the Justices of our Lord the King, concerning Murder, or Theft, or Robbery, or the receiving and harbouring of those who do any such thing; or concerning Forgery, or wicked setting fire of houses, &c. let him upon the Oath of twelve Knights of the Hundred; or if there be no Knights there, then upon the Oath of twelve free and lawful men, and upon the Oath of four men out of each Village of the Hundred, let him go to the Ordeal of Water, and if he perish, i. e. sink, let him lose one foot.

The Knights who are wanting here, are perhaps those who hold by Knights service, or if you had rather, that hold by Fee; betwixt whom, and those who served in War for wages or pay, which in the Books of Fees are called Solidatae (the same peradventure as by Cae∣sar are termed Soldurii,* 1.65 that is, Soldiers; by Nicolaus Damascenus, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, by our Monks, Bracton, Otho Frisingensis, and Radevicus, in the Camp Laws of Barbarossa, are styled Servientes, that is, Serjeants) there is an apparent difference; both of them being placed far below the dignity of those honorary Knights, who are called Equites aurati.

But yet I do very well know, that these honorary Knights also were of old time,* 1.66 and are now by a most certain right called forth to some Tryals by Jury. To the Kings Great or Grand Assise (I say) and to a Suit of Law contested, when a Baron of Parliament is Party on one side, i. e. Plaintiff or Defendant. To the Assise, in that it is the most solemn and honourable way of Tryal, and that which puts an utter end to the claim of the Party that is cast. To such an unequal suit, that there may be some equality of Name or Title as to some one, at least, of the Judges (for the Jury or twelve men are upon such occasion Judges made)

and as to the more honourable of the two parties, whether Plaintiff or Defendant. For the Peers of Parliament, who are the greater Nobles (amongst whom by reason of their Baronies, Arch-Bishops and Bishops, heretofore a great many Abbots) such as are Dukes, Marquesses, Earls, Viscounts, and Barons; who though they be distinguished by Order and honorary Titles, yet nevertheless they sit in Parliament, only as they are Barons of the Realm. And those who at the Kings pleasure are called in by Letters of summons, as Lawyers term it, are styled Chevaliers, not Barons. For that of Chevalier was a Title of Dig∣nity; this of Baron anciently rather of Wealth, and great Estate. Which Title only such Writs of Summons bestowed till Richard the seconds time, who was the first that by Patent made John Bea••∣champ of Holt, Baron of Kiderminster: Now both ways are in fashion.

CHAP. XVI.

The person convict by Ordeal, to quit the Realm within Forty dayes. Why Forty dayes allowed. An account of the Ordeals by Fire and Water. Lady Emme clear'd by going over burning Coulters. Two sorts of tryal by Water. Learned conjectures at the rise and reason of these customs. These Ordeals, as also that of single Combat condemned by the Church.

67.

AT Northampton it was added for the rigour of Justice, (re∣member what was said in the foregoing Chapter) that he should in like manner lose his right Hand or Fist with his Foot, and for∣swear the Realm, and within Forty Dayes go out of the Kingdom into banishment.

(He had the favour of Forty Dayes allowed him, so saith Bracton,* 1.67 that in the mean time he might get help of his friends to make provision for his Passage and Exile.)

And if upon the tryal by water he be clean, i. e. innocent, let him find pledges, and remain in the Realm, unless he be arighted for Murder, or any base Felony, by the Commu∣nity or Body of the County, and of the Legal Knights of the Countrey, concerning which, if he be arighted in manner aforesaid, although he be clean by the tryal of Water; nevertheless let him quit the Realm within Forty Dayes, and carry away his Chattels along with him, sa∣ving the right of his Lords, and let him forswear the Realm at the mer∣cy of our Lord the King.

Here let me say a little concerning the Tryal by Fire and Water, or the Ordeals. It is granted, that these were the Saxons wayes of tryal, rashly and unadvisedly grounded upon Divine Miracle. They do more appertain to Sacred Rites, than to Civil Customs; for which reason we past them by in the former Book, and this place seemed not unseasonable to put the Reader in mind of them.

He who is accused, is bound to clear himself ('tis Ralph Glanvill writes this) by the Judgement of God,* 1.68 to wit, by hot burning Iron, or by Water, according to the dif∣ferent condition of men: by burning hot Iron, if it be a free-man; by Water,* 1.69 if he be a Countrey-man or Villain.

The party accused did carry in his hand a piece of Iron glowing hot, going for the most part two or three steps or paces along, or else with the soles of his feet did walk upon red hot Plough-shares or Coulters, and those, according to the Laws of the Franks and Lombards, nine in number. The Lady Emme the Confessor's Mother being impeached of Adultery with Aldwin Bishop of Winton, was wonderfully cleared by treading upon so many, and is famous for it in our Histories, being preserved safe from burning, and proved innocent from the Crime.

There were two sorts of watery Ordeal or tryal by Water; to wit, cold or scalding hot. The party was thrown into the cold water, as in some places at this day Witches are used: he who did not by little and little sink to the bottom, was condemned as guilty of the Crime, as one whom that Element, which is the outward sign in the Sacrament of Regenera∣tion, did not admit into its bosome. As to scalding Water, ones arm

in that manner thrust in up to the elbow, made a discovery of the truth; and Aelstan a Monk of Abendon, afterward Bishop of Shirburn, thrusting in his bare Hand into a boiling Cauldron, shewed himself with some pride to his Abbot.

But that they say,* 1.70 that Rusticks or Vassals only were tryed by Water, (for Water is ascribed to the earthly and ignoble nature, Fire to the heaven∣ly; so that from the use of Fire peculiar to man,* 1.71 Firmianus Lactantius hath fetcht an argument for the Immortality of the Soul) that this is not altogether so true, is made out by that one example of John, a Noble and Rich old man, who in the time of King Henry the Second, when, be∣ing charged with the death of his Brother the Earl of Ferrers, he could not acquit himself by the Watery Tryal, was hang'd on a Gallows.

Whence or by what means both these Customs were brought in among Christians, 'tis none of my business to make an over strait inqui∣ry. I remember that Fire among the Ancients was accounted purga∣tive;* 1.72 and there is one in a Tragedy of Sophocles intitled Antigone, who of his own accord profest to King Creon,

—〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉* 1.73 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉—

That in his hands be red-hot gads would kéep, And over burning gleads would bare-foot créep.

••o shew himself innocent as to the Burial of Polynices. I pass by in si∣lence that Pythagorical opinion,* 1.74 which placeth Fire in the Centre of the Universe, where Jupiter hath his Prison; which Fire some, however the Peripateticks stiffly oppose it, would have to be in plain terms the Sun,

—〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.* 1.75

Who all things overlooks, and all things hears.

Yet I shall not omit this,* 1.76 that in the holy Bible the great and gracious God hath of a truth discovered himself to mortal conception in the very name of Fire, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, as a thing agreeable to Divinity, as saith John Reu∣chlin; and that S. Paul hath, according to the Psalmists mind, stiled the Ministers of God, a flame of fire. And indeed to abuse the holy Scri∣ptures, by mis-interpreting them, is a custom too ancient and too too common.

Homer and Virgil both sing of

—Imperjuratam Stygiamque paludem,* 1.77 Dii cujus jurare timent & fallere numen.

that is,

—Th' unperjur'd Stygian lake, Whose name the Gods do fear in vain to take.

We read of the Infants of the Celts,

〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.* 1.78

Try'd in the streams of sacred Flood, Whether of right or of ba••e blood;

as it is in the Greek Epigrams:* 1.79 of the fountains of Sardinia, in Solinus: of the moist Februa, or purifications by water, in Ovids Fastorum: and of those Rivers that fell from Heaven, and their most wonderful and hidden natures, among Natural Philosophers. But most of these things were not known peradventure in our Ordeals. Yet Martin Del Rio, a man of various Reading and exquisite Learning,* 1.80 hath in his Magical In∣quiries offered a conjecture, that the tryal by Water crept into use from a paltry imitation of the Jews Cup of Jealousie.

Truth is, a great many instances both of this way of trying by Water and of that by Fire, are afforded by the Histories of the Danes, Saxons, Germans, Franks, Spaniards, in a word, of the whole Christian World.

An quia cunctarum concordia semina rerum,* 1.81 Sunt duo discordes Ignis & Vnda dei, Junxerunt elementa Patres?

was it, saith the Poet,

'Cause the two diff'ring Gods, Alwayes at ods, That of Water, that of Fire, Which yet in harmony conspire The seeds of all things fitly joyn'd; Therefore our Fathers have these two combin'd.

Or was it, because that the Etymologie of the Word 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Hashamaim, that is,* 1.82 Heaven, (for the Heavens themselves were the feigned Gods of the Gentiles) some are pleased with the deriving it from 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Esh, i. e. Fire and 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Maim, i. e. Water: Let some more knowing Janus tell you.

—〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.* 1.83

For my part I shall not this game pursue; Why should I lose my time and labour too?

The superstitions and fopperies, the rites and usages, the lustrations and purifyings, the Prayers and Litanies, and the solemn preparations (in consecrating and conjuring the Water, &c.) you have in Will. Lam∣bard in his Explications of Law terms,* 1.84 and in Matthew Parker Arch-Bi∣shop of Canterbury in his Antiquities of the Brittish Church. Both of them together, with that other of single Combat or Duel (for that also was reckoned among the Ordeals) were judged by the Church of Rome to be* 1.85 impious customs; and it is long since that they have been laid aside, and not put in practice among the common ordinary wayes of peoples purging and clearing themselves.

Well, now let me come back to my own Country again, and return to Northampton.

CHAP. XVII.

Other Laws: Of entertaining of strangers. An Uncuth, a Gust, a Hogenhine; what of him who confesseth the Murder, &c. Of Frank pledge. Of an Heir under age. Of a Widows Dowry. Of taking the Kings fealty. Of setting a time to do homage. Of the Justices duty. Of their demolishing of Castles. Of Felons to be put into the Sheriffs hands. Of those who have de∣parted the Realm.

68.

LEt it be lawful for no man, neither in Borough nor in Vil∣lage or place of entertainment, to have or keep in his house, beyond one night, any stranger, whom he will not hold to right, (that is, answer for his good behaviour) unless the person entertain'd shall have a reasonable Essoin or excuse, which the Master or Host of the house is to shew to his neighbours; and when the Guest departs, let him depart in presence of the neighbours, and in the day time.

Hither belongs that of Bracton.

He may be said to be of ones family,* 1.86 who shall have lodged with another for the space of three nights; in that the first night he may be called Uncuth, i. e. Unknown, a Stranger; but the se∣cond night Gust, i. e. a Guest or Lodger; the third night Hogenhine (I read Hawan man) i. e. in Greek 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, in Latin Familia∣ris, one of the family.

69.

If any one shall be seised for Murder, or for Theft, or Robbery, or Forgery, and be knowing thereof, (i. e. shall confess it) or for any other Felony which he shall have done, before the Provost (the Master or Bailiff of the Hundred or Borough, and before lawful men, he cannot deny it afterwards before the Justices. And if the same per∣son without Seisin

(with Seisin in this place is the same as 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, as we commonly say in our Language, taken with the manner) shall

re∣cognize or acknowledge any thing of this nature before them, this also in like manner he shall not be able to deny before the Justices.

70. If any one shall dye holding in Frank Pledge (i. e. having a free Tenure) let his heirs remain in such Seisin, as their Father had on the day he was alive and dyed, of his fee, and let them have his Chat∣tels, out of which they may make also the devise or partition of the de∣ceased, (that is, the sharing of his goods according to his will) and afterwards may require of their Lord, and do for their relief and other things, which they ought to do as touching their Fee (i. e. in order to their entring upon the estate.)

71. If the heir be under age, let the Lord of the Fee take his ho∣mage, and have him in custody or keeping for as long time as he ought; let the other Lords, if there be more of them, take his homage, and let him do to them that which he ought to do.

72.

Let the Wife of the deceased have her Dowry, and that part of his Chattels, which of right comes to her.

In former times perad∣venture it was a like generally practised by the English, that the Wife and Children should have each their lawful Thirds of the estate; (each of them, I say, if they were in being; but half to the Wife, if there were no issue; and as much to the Children, if the Wife did not survive her Husband:) as it was practised by the Romans of old accor∣ding to the Falcidian Law, and of later time by the Novells of Justinian, that they should have their Quarter▪ part. For I see that those of Nor∣mandy, of Arras, of Ireland, people that lay round about them, had the same custom. Of this you are to see Glanvill, Bracton, the Register of Briefs or Writs, and William Lindwood, beside the Records or yearly Re∣ports of our Law.

73. Let the Justices take the Fealties of our Lord the King before the close of Easter, and at furthest before the close of Pentecost; namely, of all Earls, Barons, Knights and Free-holders, and even of Rusticks or Vassals, such as have a mind to stay in the Realm; and he who will not do featly, let him be taken into custody as an enemy of our Lord the King.

74. The Justices have also this to give in charge, that all those, who have not as yet done their homage and allegiance to our Lord the King, do at a term of time; which they shall name to them, come in and do homage and allegiance to the King as to their Liege Lord.

75.

Let the Justices do all acts of Justice and rights belonging to our Lord the King by a Writ of our Lord the King, or of them who shall be in his place or stead, as to a half-Knights fee and under;

(a Knights' fee in an old Book, which pretends to more antiquity by far than it ought, concerning the manner of holding Parliaments, is said to be twenty pounds worth of Land in yearly revenue, but the number prefixt before the Red Book of the Exchequer goes at the rate of Six Hundred and Eighty Acres:)

unless the complaint be of that great concern, that it cannot be determined without our Lord the King, or of that nature that the Justices by reason of their own doubting refer it to him, or to those who shall be in his place and stead. Nevertheless let them to the ut∣most of their ability intend and endeavour the service and advantage of our Lord the King.

76. Let the Justices provide and take care, that the Castles already demolisht, be utterly demolished, and that those that are to be demo∣lished, be well levelled to the ground. And if they shall not do this, our Lord the King may please to have the judgement of his Court against them, as against those who shew contempt of his Precept.

77. A Thief or Robber, as soon as he is taken, let him be put into the Sheriffs hands to be kept in safe custody; and if the Sheriff shall be out of the way, let him be carried or brought to the next Con∣stable of a Castle, and let him have him in custody, until he deliver him up to the Sheriff.

78. Let the Justices according to the custom of the Land, cause in∣quiry to be made of those, who have departed or gone out of the Realm. And if they shall refuse to return within a term of time that shall be named, and to stand to right in the Kings Court (i. e. to make their appearance, and there to answer, if any thing shall be brought in against them) let them after that be outlawed, and the names of the Outlaws be brought at Easter and at the Feast of St. Michael to the Ex∣chequer, and from thence be sent to our Lord the King.

These Laws were agreed upon at Northampton.

CHAP. XVIII.

Some Laws in favour of the Clergy. Of forfeitures on the account of Forest or hunting. Of Knights fees. Who to bear Arms, and what Arms. Arms not to be alienated. No Jew to bear Arms. Arms not to be carryed out of England. Rich men under suspi∣cion to clear themselves by Oath. Who allowed to swear against a Free-man. Timber for building of Ships not to be carryed out of England. None but Free-men to bear Arms. Free-men who. Rusticks or Villains not such.

79.

THat henceforth a Clergy-man be not dragg'd and drawn be∣fore a Secular Judge personally for any crime or transgres∣sion,* 1.87 unless it be for Forest or a Lay-fee, out of which a Lay-service is due to the King, or to some other Secular Lord.

This priviledge of the Clergy the King granted to Hugh the Popes Cardinal Legate, by the Title of S. Michael à Petra, who arrived here on purpose to advance the Popish interest.

80. Furthermore, that Arch-Bishopricks, Bishopricks or Abbacies be not held in the Kings hand above a year, unless there be an evident cause, or an urgent necessity for it.

81. That the Murderers or Slayers of Clergy-men being convicted, or having confest before a Justice or Judge of the Realm, be punished in the presence of the Bishop.

82. That Clergy-men be not obliged to make Duel:* 1.88 i. e. not to clear themselves, as others upon some occasion did, by single combat.

83. He ordained at Woodstock (we transcribe these words out of Hoveden) that whosoever should make a forfeit to him concerning his Forest, or his hunting once, he should be tyed to find safe Pledges or Sureties; and if he should make a second forfeit, in like manner safe Pledges should be taken of him; but if the same person should forfeit the third time, then for his third forfeit, no pledges should be taken, but the proper body of him who made the forfeit.

Moreover, we meet with these Military Laws, or Laws of Knights fees, made for Tenants and other people of the common sort.

84. He who hath one Knights fee ('tis the aforesaid Hoveden speaks) let him have an Habergeon or Coat of Male, and a Helmet or Head▪ piece and a Buckler or Target and a Lance: and let every Knight have so many Habergeons, and Helmets, and Targets, and Lances, as he shall have Knights fees in his demeans.

85. Whatsoever Free-holder that is a Lay-man, shall have in Chattel

or in Rent and Revenue to the value of Sixteen Marks, let him have a Coat of Male, and a Head-piece, and a Buckler, and a Lance.

86. Whatsoever Lay person being a Free-man, shall have in Chattel to the value of Ten Marks, let him have a little Habergeon, or Coat of Male, and a Capelet of Iron, and a Lance.

87. Let all Burghers or Towns-men of a Corporation, and the whole Communities of Free-men have a Wambais, and a Capelet of Iron, and a Lance.

88. Let no one, after he hath once had these Arms, sell them, nor pawn them, nor lend them, nor by any other way alienate them from himself, or part with them: nor let his Lord alienate them by any manner of way from his man (i. e. his Tenant that holds under him) neither by forfeit, nor by gift, nor by pledge, nor by any other way.

89. If any one shall dye having these Arms, let them remain to his heir; and if the heir be not of such estate or age, that he may use the Arms, if there shall be need, •• let that person▪ who shall have them (the heir) in custody, have likewise the keeping of the Arms, and let him find a man, who may use the Arms in the service of our Lord the King, if there shall be need, until the heir shall be of such estate, that he may bear Arms, and then let him have them.

90. Whatsoever Burgher shall have more Arms, than it shall be∣hove him to have, according to this Assize, let him sell them, or give them away, or so dispose of them from himself to some other man, who may retain them in England in the service of our Lord the King.

91. Let no one of them keep by him more Arms, than if shall be∣hove him according to this Assize to have.

92. Let no Jew keep in his possession a Coat of Male or an Haber∣geon, but let him sell them, or give them, or in some other manner put them away, in that wise that they may remain in the service of the King of England.

93. Let no man bear or carry Arms out of England, unless it be by special order of our Lord the King; nor let any one sell Arms to any one, who may carry them from England; nor let Merchant or other carry or convey them from England.

94.

They who are suspected by reason of their wealth or great estate, do free or acquit themselves by giving their Oaths.

The Justices have Power or Jurisdiction given them in the case for this pur∣pose.

If there shall be any, who shall not comply with them (the Justices) the King shall take himself to the members or limbs of such persons, and shall by no means take from them their Lands or Chattels.

95. Let no one swear upon lawful and free-men, (i.e. in any mat∣ter against or concerning them) who hath not to the value of Sixteen or Ten Marks in Chattel.

96. Let no one, as he loves himself and all that he hath, buy or sell any Ship to be brought from England; nor let any one carry, or cause to be carryed out of England Timber for the building of Ships.

97. Let no one be received or admitted to the Oath of bearing Arms but a Free-man.

To bring once for all something concerning a Free man, that may not be beside the purpose. The ancient Law of England bestowed that name only upon such persons, as many as, either being honoured by the Nobi∣lity of their Ancestors, or else out of the Commonalty being of in∣genuous Birth (to wit, of the Yeomanry) did not hold that rustick fee or Tenure of Villenage) dedicated to Stercutius (the God of Dunghils) and necessarily charged and burthened with the Plough tail, the Wain, and the Dray, which are the hard Countrey-folks Arms and Imple∣ments. To this purpose makes the term of Rustick or Countrey-man above mentioned in the Statutes of Clarendon, and the place of Glanvill cited in the Tryal of Ordeal.

That the business may be more clearly asserted; a Suit of Law being waged in the time of Edward the First,* 1.89 betwixt John Levin Plaintiff and the Prior of Bernwell Defendant (I have taken the Story out of an old Ma∣nuscript, and the Reports of our Law, and the Collection or Body of the Royal Rescripts do agree to it) it was then, after several disputes bandied to and fro, and with earnestness enough, decided by the judge∣ment of the Court, that those Tenants which hold in fee from the anci∣ent Domain of the Crown, as they call it, are by no means comprehended under the title of free-men; as those who driving their labour around throughout the year pay their daily Vows to Ceres the Goddess of Corn, to Pales the Goddess of Shepherds, and to Triptolemus the Inventer of Husbandry or Tillage, and keep a quarter with their Gee Hoes about their Chattel.

And now death hath put an end to King Henry's Reign. And I also having made an end of his Laws, so far as Histories do help me out, do at the last muster and arm my Bands for the guard of my Frontiers. I wish they may be of force enough against Back-biters.

CHAP. XIX.

Of Law-makers. Our Kings not Monarchs at first. Several of them in the same County. The Druids meeting-place where. Un∣der the Saxons, Laws made in a general Assembly of the States. Several instances. This Assembly under the Normans called Parliament. The thing taken from a custome of the ancient Germans. Who had right to sit in Parliament. The harmony of the Three Estates.

BUt however Laws are not without their Makers and their Guardians, or they are to no purpose. It remaineth therefore that we say somewhat in general of them. They are made either by Use and Custom (for things that are approved by long Use, do obtain the force of Law) or by the Sanction and Authority of Law-givers. Of ancient time the Semnothei, the Kings and the Druids were Law-givers; amongst the Britans I mean.

Concerning the Semnothei whatsoever doth occurr you had before.

The Kings were neither Monarchs of the whole Island, nor so much as of that part of Brittany that belonged to the Angles. For there were at the same time over the single County of Kent four Kings; to wit, Cyngetorix, Carvilius, Taximagulus, and Segonax; and at the same rate in other Counties. Wherefore we have no reason to make any question, but that part wherein we live, now called England, was governed by several persons, and was subject to an Aristocracy: according to what Polydore Virgil, John Twine,* 1.90 David Powell and others have infor∣med us.

The Druids were wont to meet, to explain the Laws in being, and to make new ones as occasion required, as is most likely, in some cer∣tain place designed for that purpose; as now at this very time all mat∣ters of Law go to be decided at Spire in Germany, at Westminster-Hall in England, and Paris in France.

Their publick Convention or Meeting-place was constantly, as Julius Caesar tells us,* 1.91 in the borders of the Carnutes the middle Region of all France. Some think that a Town at eight Miles distance from the Metropolis of those people commonly called Dreux,* 1.92 was designed for that use.

Whilst the Saxons governed, the Laws were made in the General As∣sembly of the States or Parliament. In the front of King Ina's Laws ('tis above Eight Hundred and Eighty years that he first reigned) we read thus, It Ine mid godes gift West-Saxna Cyning mid getbeat a mid lere Cenredes mines fader a hedde a Erconwald mine hiscops a mid eallum minum, ealdor mannum, & tham yldestan Witan mi∣nes theode be beodeth, &c. which in our present. English speaks thus, I Ina by the Grace of God King of the West-Saxons, by the advice and or∣der of Kenred my Father, and of Hedda and Erconwald my Bishops, and of all my Aldermen, and of the Elders and Wise Men of my people, do command, &c. There are a great many instances of this kind in other places.* 1.93 Moreover Witlaf and Bertulph, who were Kings of the Merci∣ans

near upon Eight hundred years ago, do in their instruments under

their hands make mention of Synods and Councils of the Prelates and Peers convened for the affairs of the Kingdom.

* 1.94 And an ancient Book has this passage of Abendon,

Here was the Royal Seat, hither when they were to treat of the principal and difficult points of State, and affairs of the Kingdom, the people were used to meet and flock together.

To this may be added that which Malmesbury sayes of King Edward in the year of our Lord 903.

The King gathered a Synod or Assembly of the Senators of the English Nation, over which did preside Pleimund Arch-Bishop of Canterbury interpreting expresly the words of the Apostolical Embassy.

These Assemblies were termed by the Saxons, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, i. e. Meetings of the Wise Men, and 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, i. e. the Great Assemblies. At length we borrowed of the French the name of Parliaments,* 1.95 which before the time of Henry the First, Polydore Virgil sayes, were very rarely held. An usage, that not without good reason seems to have come from the ancient Germans. So Tacitus sayes of them,

Concerning smaller matters the Princes only, concerning things of greater concern, they do all the whole body of them consult; yet in that manner, that those things also, which it was in the peoples power to determine,* 1.96 were treated of by the Princes too.

And I have one that hath left it in writing,

that when there was neither Bishop, nor Earl, nor Baron, yet then Kings held their Parliaments: and in King Arthur's Patent to the University of Cambridge

(for ye have my leave, if you can find in your heart,* 1.97 to give credit to it, as John Key does)

by the coun∣sel and assent of all and singular the Prelats and Princes of this Realm, I decree.

There were present at Parliaments, about the beginning of the Nor∣mans times,* 1.98 as many as were invested with Thirteen Fees of Knights ser∣vice, and a third part of one Fee, called Baron's, from their large Estates: for which reason perhaps John Cochleius of Mentz, in his Epistle Dedica∣tory to our most Renowned Sir Thomas More, prefixt before the Chronicle of Aurelius Cassiodorus, calls him Baron of England. But Henry the Third, the number of them growing over big, ordered by Proclamation, that those only should come there, whom he should think sit to summon by Writ.

These Assemblies do now sit in great State, which with a wonderful harmony of the Three Estates, the King, the Lords and the Commons, or Deputies of the People, are joyned together, to a most firm se∣curity of the publick, and are by a very Learned Man in allusion to that made word in Livy, Panaetolium from the Aetolians, most rightly called Pananglium,* 1.99 that is, all England.

As in Musical Instruments and Pipes and in Singing it self, and in Voices (sayes Scipio in Tully's Books of the Common-wealth) there is a kind of harmony to be kept out of distinct sounds, which Learned and Skilful Ears cannot endure to hear changed and jarring; and that consort or harmony, from the tuning and orde∣ring of Voices most unlike; yet is rendred agreeing and suitable: so of the highest and middlemost and lowermost States shuffled together, like different sounds, by fair proportion doth a City agree by the con∣sent of persons most unlike; and that which by Musicians in singing is called Harmony: that in a City is Concord, the straightest and surest bond of safety in every Common-wealth, and such as can by no means be without Justice.

But let this suffice for Law-makers.

CHAP. XX.

The Guardians of the Laws, who. In the Saxons time seven Chief. One of the Kings among the Heptarchs styled Monarch of all En∣gland. The Office of Lord High Constable. Of Lord Chancellor, ancient. The Lord Treasurer. Alderman of England, what. Why one called Healfkoning. Aldermen of Provinces and Graves, the same as Counts or Earls and Vis∣counts or Sheriffs. Of the County Court, and the Court of Inquests, called Tourn le Viscount. When this Court kept, and the original of it.

I Do scarce meet before the Saxons times with any Guardians of the Laws different from these Law-makers. In their time they were vari∣ously divided, whose neither Name nor Office are as yet grown out of use. The number is made up, to give you only the heads, by these; to wit, the King, the Lord HighConstable, the Chancellor, the Treasurer, the Alderman of England, the Aldermen of Provinces and the Graves. Those of later date and of meaner notice I pass by, meaning to speak but briefly of the rest.

The King was alwayes one amongst the Heptarchs or seven Rulers, who was accounted (I have Beda to vouch it) the Monarch of all En∣gland.

Ella King of the South-Saxons (so sayes Ethelwerd) was the first that was dignified with so high a Title and Empire,* 1.100 who was Owner of as large a Jurisdiction as Ecbright; the second was Ce••lin King of the West-Angles; the third Aethelbrith King of the Kentish-men; the fourth Redwald King of the Easterlings; the fifth Edwin King of Northumberland; the sixth Oswald; the seventh Osweo, Oswald's Bro∣ther; after whom the eighth was Ecbright.

His West-Saxon Kingdom took in the rest for the greatest part.

The Office of Lord High Constable, which disappeared in Edward Duke of Buckingham, who in Henry the Eighth's time lost his Head for High∣Treason, was not seen till the latter end of the Saxons.* 1.101 One Alfgar Staller is reported by Richard of Ely Monk, to have been Constable to Edward the Confessor, and Mr. Camden mentions a dwelling of his upon this account called Plaissy in the County of Middlesex.* 1.102 He of Ely sets him out for a Great and Mighty Man in the Kingdom. And indeed formerly that Ma∣gistrate had great power, which was formidable even to Kings them∣selves.

They who deny there were any Chancellors before the coming in of the Normans, are hugely mistaken. Nor are they disproved only out of the Grant of Edward the Confessor to the Abbot of Westminster, which I am beholden to Mr. Lambard for, at the bottom of which these words are set down: I Syward Publick Notary, instead of Rembald the Kings Maje∣sties Chancellor, have written and subscribed this paper; but also out of Ingulph, who makes mention of Turketulus, some while after that Abbot of Crowland, Chancellor of King Edred,

by whose Decree and Counsel

were to be handled & treated whatsoever businesses they were, Tempo∣ral or Spiritual, that did await the Judgement of the King; and being thus treated of by him,* 1.103 might irrefragably stand good.

And Francis Thinn, that Learned Antiquary has reckoned up several, who have discharged this Office; as Turketill to King Ethelbald, Swithin Bishop of Winche∣ster to King Egbert, Vlfin to King Athelstan, Adulph to King Edgar, Alsy Abbot and Prelate of Ely to King Ethelred. Concerning which Office and the Seals, which the Chancellor in old time had the keeping of, I had rather you would consult with Camden's Tribunals or Seats of Justice, and those things which John Budden at Wainfleet Doctor of Laws has brought out of the Archives into his Palingenesia, than seek them at my hands.

As for Treasurers,* 1.104 Dunstan was so to King Edred, and Hugolin to the Confessor.

But that fifth title of Alderman of England, is an unusual one. Yet, if I don't mistake my self, he was the Chief President in Tryals at Law, and an Officer to keep all quiet at home; the same as now perhaps is commonly called the Lord Chief Justice of England. This remarkable name I do not meet with, neither in the Monkish Chronologers, which are to be had at the Shops,* 1.105 nor in the Records of our Laws. But a pri∣vate History of the Abbey of Ramsey in Huntingdon-shire has given us no∣tice of one Ailwins Tomb with this Inscription,

HIC. REQUIESCIT. AILWINUS. INCLITI. REGIS. EADGARI. COGNATUS. TOTIUS. AN∣GLIAE. ALDERMANNUS. ET. HUJUS. SACRI. COENOBII. MIRACULOSUS. FUNDATOR.

that is, Here resteth Ailwin Kinsman of the Renowned King Edgar, Al∣derman of all England, and the miraculous Founder of this Sacred Monastery. And by reason of his great Authority and Favour which he had with the King, by a Nick name they called him Healfkoning, i. e. Half-King. Now H••nry of Huntingdon sayes,* 1.106 that Tostius Earl (or to use his phrase Consul) of Northumberland, and Harald Sons of Godwin Earl of Kent were Justices of the Realm.

Aldermen may aptly be termed by the word Senators. Those Judges did exercise a delegated power throughout the Provinces, called Counties or Shires, and the Graves and under-delegated power from them. The word is as much as Governours, and is the same thing, as in High Dutch Grave in Landgrave, Burgrave, Palsgrave, &c. and what amongst some of our own people Reev. We shall call them both, as that Age did, in a Latin term, the one Comites, i. e. Counts or Earls, the other Vicecomites, that is, Viscounts or Sheriffs.

The name of Count is every where met with amongst the most ancient of the Monks, which yet does very often pass into that of Duke in the subscription of Witnesses. And in the Charter of the Foundation of Chertsey Abby in Surrey,* 1.107 Frithwald stiles himself subregulus, i.e. an under Kingling or petty Vice-Roy to Wulpher King of the Mercians; make no question of it, he meant he was a Count.

A Viscount and a Vice-Lord are more than very like, they are the very same. Ingulph sayes it above.

And in the last hand-writing of King Edred we have, I Bingulph Vice-Lord advised it, I Alfer Viscount heard it.

These Counts and Viscounts, or Earls and Sheriffs had in their Counties their several Courts both for private and for publick matters. For pri∣vate affairs they had every Month a Meeting called the County Court.

Let every Grave,* 1.108 as we have it in Edward the Elder's Laws, every fourth Week convene and meet the people in Assembly; let him do equal right to every one, and determine and put an end to all Suits and Quarrels,* 1.109 when the appointed days shall come.

For publick busi∣ness King Edgar ordered the Court of Inquests or Inquiries, called Tourn le Uiscount.

Let a Convention or Meeting be held twice every year out of every County, at which let the Bishop of that Diocess, and the Senator, (i. e. the Alderman) be present; the one to teach the people the Laws of God; the other the Laws of the Land.

What I have set down in William the First at the end of the fourth Chapter of this se∣cond Book, you ought to consider of here again in this place.

The inhabitants did not meet at this Court of Inquests at any season promiscuously and indifferently, but as it is very well known by the use and ancient Constitutions of the Realm, within a Month either after Easter, or after Michaelmas. In which Court, seeing that not only the Count, as now a dayes the Viscount or Sheriff does, but also the Bishop did preside; it does not at all seem difficult to trace the very ori∣ginal of this temporary Law.* 1.110 That peradventure was the Synod of Antioch held in Pope Julius the First's time, and acknowledged in the sixth General Council held at Constantinople.* 1.111 In this latter there are expresly and plainly two Councils or Meetings of the Bishops to be kept every year within three Weeks after Easter, and about the middle of October, (if there be any small difference in the time, it can be no great matter of mistake). You may help your self to more other things of meaner note out of what has been said before about Hundreds, Bourghs and the like.

And this may serve in brief for the Saxons, who were entrusted with the care of their Laws.

CHAP. XXI.

Of the Norman Earls. Their Fee. Their power of making Laws. Of the Barons, i.e. Lords of Manours. Of the Court-Baron. Its rise. An instance of it out of Hoveden. Other Offices much alike with the Saxons.

I Shall be briefer concerning the Normans, I mean their Earls and Barons.

Their Counts or Earls before the Conquest, except those of Leicester, and perchance some others, were but Officers, and not as yet heredita∣ry. When William bore the sway, they began to have a certain Fee and a descent of Patrimony; having together with their Title assigned to them a third part of the Revenues or Rents, which did arise out of the whole County to the Exchequer. This custom is clear enough in Gervase of Tilbury in the case of Richard de Red••eriis made Earl of Devonshire by Henry the First, & Jeoffrey de Magna Villa made Earl of Essex by Mawd the Empress. It seems that the Saxon Earls had the self-same right of sharing with the King. So in Doomsday Book we find it;

The Queen Edeua had two parts from Ipswich in Suffolk, and the Earl or Count Guert the third: and so of Norwich, that it paid Twenty Pound to the King, and to the Earl Ten Pound: so of the Revenues of the Borough of Lewes in Sussex, the King had two shares, and the Earl the third. And Oxford paid for Toll and Gable, and other customary Duties Twenty Pound a year to the King, besides Six Quarts of Honey, and to Earl Algar Ten Pound.

To conclude, it appears also that these Norman Earls or Counts had some power of making Laws to the people of their Counties. For in∣stance, the Monk of Malmesbury tells us,* 1.112

that the Laws of William Fitz-Osborn Earl of Hereford remained still in force in the said County, that no Souldier for whatsoever offence should pay above Seven Shillings.

The Writings and Patents of the men of Cornwall concerning their Stan∣naries or Tinn-Mines do prove as much; nor need I tell the story, how Godiva Lady to the Earl Leofrick rid on Horse-back through the Streets of Coventry with her hair disshevelled, all hanging about her at full length, that by this means she might discharge them of those Taxes and Pay∣ments, which the Earl had imposed upon them.

Out of the Countreys (wherein all Estates were subject to Mi∣litary Service) the Barons had their Territories, as we call them Mannors; and in them their Courts to call their Tenants together, at the end of every three Weeks, and to hear and determine their Causes. A Civilian,* 1.113 one Vdalricus Zazius, would have the original of these Courts among other Nations, to have come by way of imitation from Romulus his making of Lords or Patrons, and their Clanns or Tenants. The use of them at this day is common and ordinarily known. But to shew how it was of old, we will borrow out of Hoveden this spark of light.* 1.114

John Marshall complained to Henry the Second, that whereas he had claimed or challenged in the Arch-Bishops Court a piece of Land

to be held from him by right of inheritance, and had a long time pleaded upon it, he could obtain no Justice in the case, and that he had by Oath falsified the Arch-Bishops Court, (that is, proved it to be false by Oath, according to the custom of the Realm: to whom the Arch-Bishop made answer, There has been no Justice wanting to John in my Court; but he, I know not by whose advice, or whether of his own head, brought in my Court a certain Toper, and swore upon it, that he went away from my Court for default of Justice; and it seemed to the Justices of my Court, that he did me the injury, by withdrawing in that manner from my Court; seeing it is ordained in your Realm, that he who would falsifie anothers Court must swear upon the holy Gospels. The King not regarding these words, swore, that he would have Ju∣stice and Judgement of him; and the Barons of the Kings Court did judge him to be in the Kings Mercy; and moreover they fined him Five Hundred Pound.

As to doing Justice in all other Cases, and managing of Publick Af∣fairs, the Normans had almost the same Names and Titles of Officers and Offices as the Saxons had.

FINIS.

Notes

• * 1.1

  Gerv. Tilb. d•• sca••c. cap. 32.
• * 1.2

  Camden.
• * 1.3

  Guil. lè Rouille Alencon.
• * 1.4

  Claudian. In 4. cons. Ho∣norli.
• * 1.5

  Dooms∣day.
• * 1.6

  Horat. art. poetic.
• * 1.7

  Leland.
• * 1.8

  Matth. Cantu. in Antiq. Ec∣cles. Britan.
• * 1.9

  Tuin. apol. ant Oxon. lib. 1. §. 81.
• * 1.10

  Camden i•• Ord. Angl.
• * 1.11

  Macrob. Sa∣turn. lib. 7. cap. 13.
• * 1.12

  Vopisc. in Aurel.
• * 1.13

  Lips. ad 2. Annal. Tacit. num. 4.
• * 1.14

  Ingulph.
• * 1.15

  Malmsb. lib. 2. cap. 8.
• * 1.16

  A. Ch. 780.
• * 1.17

  Guil. Mapaus. Can••len.
• * 1.18

  〈◊〉〈◊〉 ••eud. 2. 〈◊〉〈◊〉. 2.
• * 1.19

  Stat. 36. Ed. 3. cap. 15.
• * 1.20

  Mi••h. P••ri.
• * 1.21

  Polydorus. Coverfeu.
• * 1.22

  Alberic. Gen∣til. de jure bell. lib. 1. c. 20.
• * 1.23

  August. de Civ. Dei. l. 18. c. 10. Pausan. Atti∣cis.
• * 1.24

  Terms.
• * 1.25

  Justices of Peace.
• * 1.26

  A. M. 66. In Bot. chart. 2 Rich. 2. pro decan. & ca∣pit. Ec••••s. Lincoln.
• * 1.27

  Leg. Edgar. cap. 5.
• * 1.28

  Petron. Arbl••.
• * 1.29

  Basil. concil sess. 21. Duaren. de Benes. l. 6. c. 3. Vid. Platin. in Joh. 22. vit••.
• * 1.30

  Canut. leg. cap. 69. & Ed. Confess. Bracton. lib. 2. cap. 35. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 in Novell. Lev. 13. Ho∣toman. in ver∣bo Fe••dal. Releu.
• * 1.31

  Carol. Sigon. de reg. Ital. lib. 8. V. Hocom. comm. ad 3. lib. Feud. Mariana hist. Hispan. lib. 5. cap. 11.
• * 1.32

  Canut. cap. 68
• * 1.33

  •• Rich. 3. tit. Testament. 4.
• * 1.34

  Lind provin. ••••nstit. de te∣sta••••. c. Sta••u∣tum & de ••u∣mum. Eccles. c. Accidit. verb. Abolim. Glanvil. l. 7. c. 8. C. de testam. L Consulta di∣valia.
• * 1.35

  Hotom. Feud. Haubertic. in Diction.
• * 1.36

  Morus in Uto∣pi••, l. 2.
• * 1.37

  De mirac. Thom. ap. Fox hist. ec∣cles. lib. 4.
• * 1.38

  Guli. Geme∣tic. de ducib. Norm. lib. 7. cap. 23.
• * 1.39

  Fest. Latro. Heb. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 la∣tro à 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 la∣tus. Bodin. de rep. l. 6. c. 6. Dist. 55. c. 4. ff. Ad leg. Corn. de Sicar. l. 4. § ult. Bract. lib. 3. tract. 2. c. 23. & Stamf. plac. Coron. l. 1. c. 38.
• * 1.40

  Stow, & v. Malmesb. l. 5. de gest. reg. fol. 88.
• * 1.41

  Spec. Just. cap. des arti∣cles, &c.
• * 1.42

  Lamb. Itine∣rat. Cant. West. 1. c. 4.
• * 1.43

  Pat. 46 lid. 3.
• * 1.44

  Ovid. Art. Am. lib. 1.
• * 1.45

  V. Leg. Athel∣stan. 14.
• * 1.46

  Bellarm. l. 2. de Rom. Pon∣tif. c. 21.
• * 1.47

  Polycrat. l. 8. c. 22.
• * 1.48

  Rot. Parl. 11 Rich. 2.
• * 1.49

  Camden.
• * 1.50

  A. 1004.
• * 1.51

  Metamor. l. 10.
• * 1.52

  V. Rog. Hove∣deu. fol. 303.
• * 1.53

  Coke prafat. ad Lib. 6.
• * 1.54

  40 Assis. pl 24. & 32. Ed. 3. 〈◊〉〈◊〉. Barr. 261.
• * 1.55

  Annal. Hiber. 1212. sub Henr. 3. Malmsb. l. 2. de gest. reg. c. 8. & Ingulph. fol. 519.
• * 1.56

  Malmsb. l. 1. de gest. Pont.
• * 1.57

  Caes. Germ. ad Arat. In Aqua∣rio.
• * 1.58

  Pindar. Olym. 9.
• * 1.59

  Lips. Polior∣cet. lib. 1. dis∣sert. 2.
• * 1.60

  Chauc. in Pro∣log. of the Sumners tale.
• * 1.61

  Pet. Blesens. app. ad In∣gulph.
• * 1.62

  C. de poenis. l. 21. sanci∣mus.
• * 1.63

  V. Canut. leg. 74.
• * 1.64

  Fox. in hist. Eccles. Ed. 2. Rescript. dat. 10. Kal. Maii ap. Veterem urbem, Pon∣tificat. 2.
• * 1.65

  Ca••s. comm. l. 3. Ath. dipn. l. 6. Feud. l. 2. tit. 20. Otho Fris. lib. de Frederic. 1. Radevic. l. 1. c. 26.
• * 1.66

  Bract. l. 5. de Esson••is, c. 10. & 26 Ed. 3. fo. 57. a. 30 Ed. 3. fol. 2. 6. v. 17 Ed. 2. tit. Attaint. 60. 1•• Ed. 3. tit. Challenge. 115. Plo. com. fol. 117. 8 H. 6. fol. 10.
• * 1.67

  Bract. tract. de Coron. l. 3.
• * 1.68

  Glanv. l. 14. c. 1.
• * 1.69

  Polydor. hist. l. 8. Matth. Park. in vit. Rob. Archiep. Cant.
• * 1.70

  Malmesh. l. 2. de gest. Pon∣tif.
• * 1.71

  Lact. Instit. l. 7. de divin. praem. c. 9. Hoveden. an∣nal. l. 2.
• * 1.72

  Coel. Rhod. antiq. sect. l. 17. c. 21.
• * 1.73

  Sophocles in Antigone.
• * 1.74

  Arist. 2. de Coelo.
• * 1.75

  Iliad. 3.
• * 1.76

  Deut. 4. zanch. de nat. Dei, l. 1. c. 6. Reuchl. de verb. m••rif. l. 2. c. 16. Psalm 104. Hebr. 1. 7.
• * 1.77

  Aeneld. 6.
• * 1.78

  Anthol. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Epigr. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
• * 1.79

  Polyhist. l. 1. c. 10. Ovid. Fast. 2. Senec. Ep. 41.
• * 1.80

  Mart. del Rio disq mag. l. 4. sect. 3. & 4.
• * 1.81

  Ovid. Fast. 4.
• * 1.82

  Pic. Mirandu∣la in Hepta∣plo.
• * 1.83

  Pindar. Olymp. 3.
• * 1.84

  Vit•• Roberti.
• * 1.85

  Decret. tit. de vulgar. pur∣gat. ••••us. 2. qu••st. 5.
• * 1.86

  Bract. l. 3. tract. 2. c. 10. & Canuti leges.
• * 1.87

  Matth. Paris.
• * 1.88

  V. Britton. cap. d' Ap∣pe••les, and temp. Ed. 1. 〈◊〉〈◊〉. Quod per∣mittat. 9.
• * 1.89

  Temp. Ed. 1. tit. Attorney, 103.
• * 1.90

  Polyd. hist. Angl. 2. Tuin. Com. de. reb. Albion. Dav. Pouel. in Epist. Guli. Flèetwode.
• * 1.91

  Cas. l. 6. de bell. Gall.
• * 1.92

  Paul. Merula.
• * 1.93

  In••ulph.
• * 1.94

  Camden.
• * 1.95

  Polyd. hist. Angl. l. 11.
• * 1.96

  Mod. ten. Parl.
• * 1.97

  Jo. Caius An∣tiq. Canta∣brig. l. 1.
• * 1.98

  V. 2••. Ed. 3. fol. 18.
• * 1.99

  August. de clv. Dei, l. a. c. ••1.
• * 1.100

  Ethelw••••d. l. 3. c. 2.
• * 1.101

  Hist. Eliens.
• * 1.102

  Camd. in Northampt. V. Kel. relat. 6 Hen. 8. fol. 171. Stat. 13 Rich. 2. c. 2 Matth. Paris, pag. 563. Brook tit. Prerogative. 31.
• * 1.103

  Fr. Thin. in contin. Chr. Eliz.
• * 1.104

  Matth. Cant. in Odonis se∣veri vita.
• * 1.105

  Camden.
• * 1.106

  Huntingd. hist. l. 6.
• * 1.107

  Camden.
• * 1.108

  Leg. Edw. 5. & Canut. 17.
• * 1.109

  Leg. Edgat. cap. 11.
• * 1.110

  Synod. Anti∣och. c. 20.
• * 1.111

  Dist 18. c. 4.
• * 1.112

  Malmesb. de gest. reg. l. 3.
• * 1.113

  Ad leg. 2. de origin. jur.
• * 1.114

  Roger de Ho∣veden in H. 2.