Rights of the Kingdom, Text (3 of 4)

Rights of the Kingdom · Text (3 of 4)

p. 160Some have much wondred at a Passage now found in the Confessors Laws. It is about Titles; which he saith, were preached by Austin, and granted by the King (then reigning) and the Barons, and common People: Concessa sunt à Rege, Baronibus, & Populo. A very full and clear Parliament.

We need not suspect or doubt it: for in those very times there were such Parliaments, and such degrees. Nay, Caesar himself found such degrees among the Britains; a King and Druyds, (which were as Bishops and Archbishops, as we may clear anon) Dukes and Nobles, besides the Commons: So civil was our British Ancestors. Of whom, much more ere long.

And for the very first times of Christian Religion (which was much higher than Austin the Father, who might have been great Grandfather to Austin the Monk) King Alfred's own Laws acknowledge, that in this Island the Laws were then made by a Common Council of Bishops and other Wise men, or elder men of the Wytan.

Old Bede seemeth plain enough for this, in several places; Servabant Reges, Sacerdotes, Privati (Were the Commons before the Lords?) & Optimates, suum quique Ordinem.

p. 161And of the Saxons, called in by Common Council, Initum est Concilium, quid agendum, &c. placuitque omnibus, cum suo Rege Vortigorno, ut Saxonum gentem in auxilium vocarent.

And of Ethelbert (King of all the South to the River Humber;) Among other good works (saith he) quae consulendo conferebat, etiam decreta Iudiciorum juxta exempla Romanorum, Concilio Sapientiunt constituit.

And among other Laws of his (in the same Bede) that is one, in special, for Priviledge, Ecclesiae, Episcopi, & Reliquorum ordinum.

That this might also extend to the great Priviledge of Parliaments, I could the rather believe, from the Laws of the said King Ethelbert, yet to be found in the old book of Rochester (Textus Roffensis) of which, Sir Henry Spelman; unto whom we owe so much for all Antiquities. Where, after provision for the things of God and the Church, (to which St. Edward's Laws allude) the next Act is for Priviledge of Parliament, it seems; being for the punishing and sore fining of those that should do any damage, Gif Kyning his Leode to him gehateth, &c.

And in the old Chronicle of Canterbury, we read of this King Ethelbert being at Canterbury with his Queen and Son, and the Archbishop Austin; Caeterisque Optimatibus, convocato ibidem Communi Concilio tam Cleri, quàm Populi: With divers other proofs for Parliaments in Charters to that Church, in print. And Spot deserves as much.

p. 162One thing I must not omit, that Bede (observing how Religion was preached both to the King and to the Counts, omnibus Comitibus) saith, there was a License granted for publick Preaching; but when the King and divers great men were converted and baptized, yet there was no force used to compel others to be of that Religion: because (he saith) they were taught, that Christs service must be voluntary, and not forced. But the Mirrour telleth us, the King was bound to compel men to Salvation. O happy men! or unhappy King!

But the Britains would not be forced from their Rites by Austin the Monk, Absque suae gentis, & imprimis Senatorum suffragio: as a learned man translates King Alfred's Saxon Bede. Which is also very clear in several places, for setling of Christian Religion, (when it was freely chosen) with destruction of Pagan Idolatry: with Lent, and other things, confirmed by divers Acts of Parliament in time of Ercombert and King Edwin; Mid his Witum, & mid his Ealdormanum.

So is the old Book of Peterburgh, for a Parliament or Heatfield. With which we may compare somewhat in Ingulph, and more in Bede, Ethelward, and Huntingdon, about the Parliaments which received and consirmed the General Councils; and that which established the Division of Parishes, and Patronage of Churches. Of which, Stow, and the Antiquities of Canterbury; but especially a Manuscript in Camdridge, cited by Mr. Wheelock on the fourth or fifth of Bede.

p. 163I should not digress to Sigesberts founding the Vniversity of Cambridge, had not King Alfred himself in this, added good Notes to Bede. By which we may see whence he learned what so many say he did to Oxford, the younger Sister: For which Polydore is plain enough; besides so many better elder Authors. It is also considerable, that King Alfred calleth Cambridge (or Grantacestre) a City; which Bede would make a Civitatula. How little it might then be made by the Danes or others, I know not: But in old Nennius of the British Cities, I find Cair Granth next before Cair Londen. And Sir Simon d' Ewes affirmeth it to be ranked before London, in Gildas Albarius, and an old Saxon Anonymus; besides that of the old (but not the oldest) book of Doomsday.

Nor must I omit the Records of Richard the First, for the Customs of the City of Cambridge, found by a Jury in an Assize of Darrein Presentment for the Church of St. Peters in Cambridge. Of which, the great Judge in his Reports or Commentaries

To which I might adde what the Saxon Chronology speaketh of Grante Briege, at the year 875, and 921; where we also find an ancient Military Sacrament, or great Oath of Fealty: more to be marked, than may seem at first view.

Come we to the Saxon Laws, extant in print. They begin with King Ina; whom some will have to be a Britain. But in the Confessors Acts, he is stiled p. 164Optimus Rex Anglorum, qui electus fuit in Regem per Angelum, & qui primum obtinuit Monarchum Totius Regni hujus, post adventum Angliorum: And that himself and others of his People, matched with the Britains. But per Communae Concilium & assensum omnium Episcoporum, & Principum, Comitum, & omnium Sapientum, Seniorum & Populorum totius Regni.

Not onelyonly a clear proof for Parliaments in King Ina's time, but a good Comment on his Laws in print: Providing about Matches, Dowries, and Women's Thirds; and all by Parliament: as the Proem it self expresses: beside King Edward's Laws.

And for the Saxon Militia, (a Phrase used by Bede himself; Nam egressi contra Gevissorum gentem, omnes pariter cum suà Militia corruerunt:) King Ina's Laws afford us divers Acts of Parliament, providing against Thieves, Riots, Routs, and all unlawful Assemblies, in several degrees and branches: As also for Officers of the Militia (to be ready on a great Fine) to march upon all just occasions. With which we may compare Mr. Lambert's Custos Paganus, Sithecundman: which some would have to be the Father to our Sidemen. See Whithred's Military Dooms.

Egbert is by all esteemed a great, if not the first Monarch of the Saxons; a great Warriour; and a Conquerour: But yet he neither made or managed the Militia, without a great Common Council or Parliament.

p. 165For which, besides all others, we have a clear proof in the old Abbot of Croyland; to which there was a great Charter confirmed, Coram Pontificibus, & Proceribus, Majoribus totius Angliae: which were all together at London, consulting how to provide against the Danish Pirates: Pro Concilio capiendo, contra Danicos Piratas, &c.

That also Majores in this place, might denote some lower than Earls or Lords, may not onelyonly be gathered from the Subscriptions to that Charter, but from Bede, or other old Authors that use the Phrase Majores, of such Officers or Magistrates as Mayors in Cities now seem to be. Of which, I might give divers Examples.

It is worth observing, how in these Danish storms, all Historians make the Counts, or great Shireeves, to be Generals or Commanders of the Militia. And of these, I know none more famous than Dorsetshire Reeve Ethelhem, in the great Battel of Hampton, or in that about Port (of which so many write) at the Danes first landing thereabouts.

Danigeld is scarce so ancient: Yet this also was granted for provision against Danish Pirates; as St. Edward's Laws affirm. Who first remitted this Tax (but it came up again) about forty years after it had been diverted from its first institution; and paid as Tribute to the Danes. But this was also by Parliament. Of which, Ingulph and Hoveden, with all about Etheldred and Edward.

p. 166I must not digress to the Parliament of Winchester, (in King Egbert's Sons) in which Tenths of Lands (as other Tythes) were confirmed for Church-Glebe. Of which the Saxon Chronologie, with Ethelward, Hoveden, the Abbot of Croyland, the Monk of Malmsbury, and Matthew of Westminster, with divers others, before Polydore. To which we may adde King Edgar's Oration to St. Dunstan; which is known enough. As also the Wednesday Masses, one for the King, and the other pro Ducibus, &c. Consentientibus: The Charter being subscribed by the King, Archbishops, Dukes, Earls, and Procerum totius Terrae, Aliorumque fidelium infinita Multitudine.

I should not omit the Parliaments confirming Rome-Scot; much mistaken by divers. It was granted by King Ina, then by Offa, and again, by King Ethelwoolf; not to the Pope, (as it is generally thought) but to the English School, or Alms-house for Pilgrims at Rome. Yet it was called Peter-pence, because fixed on Peters-day: A famous day in our Law, as may appear by the second of Westminster, and other Parliaments.

But it might be called Peter-pence from King Ina, whom (at his Baptism in Rome) the Pope name Peter; as the Saxon Chronicles; others. Or there might be as much reason for Peter-pence, as there was for Peterburg (which was Medhamsted;) but Vows might be performed or absolved here, as well as at St. Peter's Threshold in Rome: And hence the name of Peterburg.

p. 167But of Peter-pence, before Polydore, we read in much older Historians; especially the Author of King Offa's Life, now printed with Matthew Paris: Beside the Laws of King Edgar, Canutus, Edmund, and the Confessor; where it is called Eleemosynae Regis: But in the Saxon Chronology, 'tis Kynninges and West Seaxena Almessan: And in King Alfred's Life, (by Asser Menevensis) Eleemosynae Regis, and Anglo-Saxonum: Being confirmed by common Assent, or Parliament.

I must omit the Parliament at Kingsbury; where among other divers matters, a great Charter was confirmed to Crowland: Vnanimi Consensu totius Concilii, pro Regni Negotiis Congregati: Subscribed by the King of Mercia, Archbishops, Bishops, Earls, &c. And among others, by Off…at, who was Pincerna Regis Ethelwoolphi, & Legatus Ipsius, & filiorum, Nomine Illorum, & Omnium West-Saxonum; as we are told by the old Abbot, who knew it well.

I might pass over King Alfred's Parliaments: so the famous in all Historians and Lawyers. But in none I know clearer, than in the old Mirrour. Of which, before, for Alfred and his Parliaments, twice every year in London. With which we may compare one passage in the Confessors Laws, touching this great and old City. But of this, hereafter.

This was the learned King, who perused all the old Trojan, Grecian, British, Molmutian, Mercian, Danish, and Saxon Laws; especially those of Ina, Offa, and p. 168King Ethelbert: Cum consulto Sapientum, partim innovanda curavit, as himself speaketh. And his Laws were established by Parliaments, by his Witan, or Witena: Atque eis omnibus placuit, edici eorum Observatione; As learned Lambert translateth the Saxon.

But I may not omit King Alfred's Doomsday-book, made by such Common Council, the great Roll of Winchester; which was again renewed by the Confessor, and then again by King William the First; and then also called the Roll of Winchester, and Doomsday, as before. Of which, old Ingulph, with Natura Brevium.

Yet it seemeth, that before King Alfred's time, there was such a Doom-book made by Ethelwoolf (at the time of the Church-Glebe;) of which Book, the Saxon Chronology, at the year 854. But this might rather be a Land-book (whence the Phrase of Booeland.) See King Alfred's Will, annexed to Asser. But we also find an ancient Doom-book for their Laws and matters Iudicial.

Of which Doom-book we read in several places of the Laws of Edward the Senior; strictly charging all the Judges and Magistrates to be just and equitable: Nec quicquam formident, quin jus Communae audacter, libereque dicant: according to the Doom-book. And again, in Edgar's Laws, we find the Doom-book for Tythes, and the famous Kyricseat.

These succeeded King Alfred. But long before his time, among the Dooms of Withred, made about the p. 169year 697. by the King and Bishops, Cum caeteris Ordinibus, and Military-men (or Milites) at Berghamsted; a Fine is set upon a Commander found in Adultery, Spretta Sententia Regis, Episcopi, & Boec…-Doom.

I could believe King Ethelbert's Parliaments were Authors to this Doom-book. Of which, the Roll of Rochester, tha Doomas dhe Athelbirth Cyning; with Rihtra Dooma (in the fore-cited place of Ethelbert) in the Saxon Bede of King Alfred.

How severe his Dooms were to the Counts, old Shireeves and Iudges, we find in Asser: more in Horn, and his Kirk-dooms in his Laws; which do also speak of Kiric-Ealdor, a Church-Elder.

But again to the Saxon Militia. In Alfred's time there was a League made with the Danes: Then the Title was, Foedus quod Aluredus & Guthrunus Regis ferierunt, ex Sapientum Anglorum consulto ▪ confirmed by Act of Parliament. And the Saxon Chronologer addeth, That the Dane swore to the Peace, and promised to be baptized; as he also was, and King Alfred was his Godfather, naming him Ethelstane. Some adde, a Daughter of King Alfred's for his Wife: which may be worth enquiring, more than now may seem.

The Articles of this League were again renewed and enlarged by Parliament, in Edward the Elder: A Sapientibus recitata sapius, atque ad Communem Regni Vtilitatem, Aucta atque Amplificata. In the Preface to those Statutes.

p. 170In this Edward's Reign, there was an Insurrection; and Ethelwald seized on Winborn, &c. whose Charge and Crimes was this: That he did such an Act, without permission of the King and Parliament; but an tdes Kynings, leafe ac his Witena. So the Saxon. And Malmsbury addeth, That à Proceribus in Exilium trusus, Piratus adduxerat.

But the King summons a Parliament at Exon; and there, Mid his Witan, consulted how the Kingdoms Peace might be restored and preserved: Orabat vehementer, & obtestabatur, (such was his Mean to the Parliament) hoc unum Curent, ne quem injurià afficiant: Beseeching them mainly to mind this, That they wronged none. A most pious Christian Motion! And our Monthly County-Courts are as old as this Parliament at Exon. The Acts are printed. But I must not digress to their Ordeals, appointed there for Perjury.

In this Kings Reign the Pope sent his Bull to excommunicate the King and all his Subjects: For that, Per 7 annos destituta fuerat Episcopis, omnis Regio Gavisorum, id est, West-Saxonum. Whereupon the King summoned a Parliament; Convocavit Synodum Senatorum Gentis Anglorum: As saith the Monk of Malmsbury. Et Eligerunt & constituerunt Singulos Episcopos, Singulis Provinciis Gavisorum: (For the Bishops Shire used to be equal to the Earls, or the Ealdormens Shire, with whom he sate in Folkmoote.) Et quod Olim duo habuerunt, in quinque diviserunt.

p. 171King Ethelstane came next. He was the first of all the English Kings that ruled over all the Island, conquering Wales, and regaining Scotland: Which being subject to England, as a Dukedom thereof, was advanced to a Politick and Royal Kingdom: As the learned Fortescue doth plainly affirm. And for this, against all that Buchanan writeth, I need onelyonly refer to the Authors and Records cited by the great Master of Antiquities, with other Learning, Mr. Selden, in his short but pithy Notes on it, with Hengham: To which we may adde somewhat in Polydore, and the Saxon Chronology, from the year 934; but especially from Oswald's Laws, and others of the famous Edgar, vouching Ethelstane for Scotland. Of which we read in many places, beside the fourth Part of the great Reports. But that victorious Monarch suffered the Scot to reign under him, saying, That it was more glorious to make a King, than to be a King. A pious Prince, to whom we owe for translating the Bible from Hebrew; which some think he did by some Converted Jews.

Among his Laws, now extant, we find divers enacted in Celebri Gratanleano Concilio; where there were Archiep. Optimates, & Sapientes, ab Ethelstano vocati frequentissimi.

And again at Exon, we find him Mid his Wytan; and their Wergylds for the King, Archbishop, Eorles, Bishops, Ealdermen, and other Degrees, may suffice to prove them to be Acts of Parliament.

p. 172With those several Degrees there mentioned, we may compare the Laws of King Edgar and Canute in divers places, one of the Ranks of their Nobility, as a General or great Commander in Wars; which may be observed for the Militia.

Edmund succeeded; and at London holds a Parliament of Clergy and Laity; (ge Godcundra, ge Worulcundra:) And again, Mid Witena getheahte gegodra hada gelewedra. And to the Parliament he giveth solemn Thanks for their Aid in setling the Kingdoms Peace. His Laws are printed. And we omit his Charter to the Church of Glastonbury, which was made, cum Concilio & Consensu Optimatum, as we read in Malmsbury.

But I must not omit that Parliament of his, recorded in the Mirrour; where we find a kind of Appeal, or a legal Accusation of Treason brought by Roceline against Walligrat, in full Parliament, in the time of King Edmund.

In King Edred's Reign there was a Parliament solemnly summoned by Writ, as we read at large in the Abbot of Crowland. To which there was then a great Charter confirmed, being drawn or dictated by Turketulus, then Abbot, but he had been Lord Chancellor. And the date is, in Festo Nat' B. Mariae, cum Vniversi Magnates Regni, per Regis Edictum summoniti; tam Archiepiscopi, & Episcopi, ac Abbates, quam Caeteri totius Regni Proceres, & Optimates, Londoniis Convenissent; p. 173ad tractandum de Negotiis Publicis totius Regni, in Communi Concilio.

Edgar was a great Monarch, and as great a Conqueror by Sea, as Ethelstane by Land: It might be easier to shew his four Seas, of which so many speak, than to set their exact bounds. Yet it may not be unworthy of our thoughts, to consider, how our Ancestors did often divide the Office of their Admirals, usually as Nature hath parted our Seas; as thinking it indeed too great an honour and a burthen, for a Subject to be Admiral of all the Seas of such an Island. But the late Cardinal of France did wisely (it was thought) dispose, or rather retain, that Office, as the best Jewel of that Kingdom; which yet by Sea might yield to this.

But I must not digress, nor can I determine the bounds of Edgar's Conquest, to the North (they say, to Norway) or the West. Of which, some speak, as if they would but give us hints for farther search and Queries.

I dare not affirm, that in those days our Saxon or British Ancestors did know America. But if we may credit any Records besides the Scriptures, I believe or know it might be said and proved well, that this new World was known, and partly inhabited by Britains or by Saxons from this Island, three or four hundred years before the Spaniards coming thither.

Nay, the more I consider the Discourses which did p. 174pass between the Spaniards and the Mexicans, the more I could believe the King himself of Mexico might possibly descend from those that went from hence to Florida, or rather Mexico: So that we need not wonder at the British Words, or Beads, the Crucifix, or other Reliques, which the Spaniards found at their Arrival. And for this, besides so many other Authors, we have much among the British Annals.

Those in special left by Caradoc of Lancarvan, or from him, continued by the Beirdhs of Conwey and Stratford; gathered and translated by the learned Llhoyd. To which we may adde what Doctor Powell hath of this out of Records, and best approved British Authors, in the Life of Owen Gwyned, or David, and Madoe, his Sons, about the Reign of King Stephen.

To which, at least for that which concerneth Hanno, or the old Navigations (with Plato's Atlantis, or what else appeareth in Aristotle, Theophrastus, Virgil, Seneca, with others) it may not be amiss to compare two late and very learned French Authors of Peleg, and orbis maritimus; very worthy (I think) of good perusal.

But to return to Edgar's Parliaments: How that great Council did often dispose the King himself, we must discourse in a fitter place. We shall now but observe, that good Historians tell us, that King Edgar, by the Council of the Kingdom, did repeal the Acts of Edwin, both his brother and predecessor, Convocato p. 175ad Brandanfordeam Regni Concilio, fratris Edwini Acta & decreta rescindit. And the famous Oswald's Law was signed by this King, Cum consensu, Concilio, & astipulatione, Archiepiscoporum, Principium, & Magnatum. It is printed, and found in ancient Authors.

King Edgar's Charter to Glastonbury (reciting the Acts of so many Kings before him) was confirmed, Generali assensu Pontificum, Abbatum, & Optimatum: If we may believe the old Monk. And the Charter is to be read at large: Archiepiscopis adhortantibus, consentiente etiam & annuente Brithelmo Fontanensi Episcopo, caeterisque Episcopis, Abbatibus, & Primatibus. And the Close is, Acta haec, & confirmata, apud Londonium, Communi Concilio, omnium Primatum meorum, &c. I should be unjust to our Laws, if I should omit the Process and Plea of Morgan Hen, against Howell Dha, the good Prince of Wales. Upon complaint, they were both summoned by King Edgar, Ad curiam suam; and their Pleas were pacately heard, In Pleno Concilio, & repertum est, justo Iudicio curiae Regis, quod Howell Dha nequiter egisset extra Morgan Hen, & filium sui Huwen, & depulsus est Howell Dha ab his duabus Terris (the Lands then in question) sine recuperatione; & Postea Rex Edgarus dedit & concessit, Hueno Morgan Hen, illas duas Terras, (Istradum & Euwias) in Episcopatu Landas constituas, sicuti suam Propriam Hereditatem, & illas easdem duas Terras sibi & Heredibus suis; Per chartam suam sine Calumpnia alicujus Terreni hominis p. 176confirmavit, communi nostro assensu, & testimonio omnium Archiepiscoporum, Episcop. Abbatum, Comitum, & Baronum totius Angliae & Walliae; factum est coram Rege Edgaro, in pleno concilio, &c.

This Record of King Edgar, is in Codicae Landavensi, fol. 103. I find it cited by the great Antiquary Sir Henry Spelman: and it may be compared with the Monk of Malmsbury, and Matthew of Westminster.

I must not relate the Visions or Predictions of the Fates of this Kingdom, which Historians record about the Reign of King Edgar; they are in print, and may be read of all: Besides the Prophecies of both the Merlins; for the Scottish Merlin was fuller and plainer than the British in Vortigers time: That I say nothing of Cadwalladers Vision, or Alans Council (which was long before the other Alane wrote on Merlin) or of the famous Eagle of Shaftsbury, that agreed with others in the Britains recovering their Kingdom again, after their grand Visit at Rome, whence they must bring Cadwalladers bones.

This leadeth me also to the Sybils Prophecy of three British Princes that should conquer Rome. Brennus was one; King Arthur some make the second; Et quis fuit alter? And of these Sybils, or one of them, sending a book to King Bladud, (so famous for the Bath, and Greek-Schools, or University at Stamford) the Scotish Merlin seemeth to have written, if among others I mistake not Baleus.

p. 177But of Edgar's Parliaments, one was at Salisbury; so we read in Chaucer, or the old Fructus Temporum, by Iulian Notary at St. Albans. And of another of his Parliaments at Bath; the Saxon Chronology, at the year 973.

His Laws are now printed; and their Title is, The Acts of King Edgar and his Parliament: Mid his Witena, Getheate gerred, &c.

Here we find much considerable of Thanes; which all will have to be Noble-men: but it must be with them a Saxon word. And Dhenian is to serve: whence the Princes Motto, Ic Dhaen. (For so it should rather be, than in Dutch, Ich Dien.) But why should Noble-men, or those that were the freest, have their name from serving? Here they flie to Knights-service, King-service, or I know not what; most proper, as they say, to free and Noble-men.

But from a Judge, or Fleta, we may be taught, that the Saxon Dhaen or Thaen, is a Servant; but Thayn, a Free-man. And in this sence it seemeth to be used here. As also in Denmark, and Ireland. Nor did the Britains differ much; whose Haene or Hane, is an Eldar: (although Hyne be sometimes used for a Servant.) And so the Irish Tane is Elder; whence their Tanistry or Eldership: (the cause or sad occasion of such bloudshed.) These British Hanes, the Saxons in compliance, called Ealdermen: (St. Edward's Laws afford so much) and it may be Thanes; although with them p. 178they had the name of Greeues or Graves, suiting well with Elders, Hanes, or Senators. With which we may compare the Phrase of Seniores, which we read so oft in Gildas, Nennius, Monmouth, and others of the British and first Saxons times in Britain.

I should be tedious in but glancing over the Acts of Parliament in Edgar's time. That of the Standard at Winchester is considerable; and that of one Coyn through all the Kingdom. The Mirrour is plain in making it an Act of Parliament, in Saxon times, That no King of this Realm, should change his Money, or embase, or enhanse it, or make other but of silver, Sans l' assent de tout ses Counties. Which the Translator is bold to turn, Without the Assent of the Lords and all the Commons.

We may not omit the Act against unjust Judges, or Complaints to the King, except Justice could not be had at home. For which also, the Hundred-Courts were again confirmed, and the Grand Folkmootes, or Sheriffs Turnes, established by Act of Parliament. Of which and of their relation to Peace and War, more in Edward's Laws; which may afford a Comment for the Saxon Militia.

I need not speak of the Parliament at Calna ; it is famous enough; where, Considentibus totius Angliae Senatoribus, the Roof fell down, and hurt them most, but St. Dunston. Of which, Wigornensis, Iornalensis, Malmsbury, Matthew of Westminster, and so many others may be cited.

p. 179King Ethelred's Laws have this Title in Lumbard: Sapientum Concilium quod Ethelredus Rex, promovendae pacis causa, habuit Wodstoci Merciae, quae legibus Anglorum gubernatur: aefter Aengla-Lage, Post Anglis Lagam ▪ as an old Author turneth it.

In those Acts, we read of Ordale Sythan the Gemot waes aet Bromdune; Post Bromdune Concilium: It seems a Parliament.

And again, Iussum ac scitum hoc nostrum, si quis neglexerit, aut profuâ quisque virili parte non obierit, ex nostra omnium sententiâ Regi 100 Dependito. By which it appeareth to be a Parliament, and not the King only that made those Laws.

That which Sir Henry Spelman calleth, Concilium AE…e Generale ▪ was clearly one of King Ethelred's Parliaments: and the very Title is, De Witena Ge…ednessan, and tha Geraednessa the Englaraed Witan gee… &c. And divers Chapters begin, Witena Geraednesse is, enacted by Parliament.

And the old Latin Copy of this Parliament, telleth us, that in it were, Vniversi Anglorum Optimates Ethelredi Regis Edicto, & convocato Plebis multitudine collectae Regis Edicto. A Writ of Summons to all the Lords, and for choice of the Commons ▪ a full and clear Parliament.

In this Parliament were divers Acts for the Militia, both by Land and Sea; (as most Parliaments after King Edgar:) and among others, for Castles, Forts, p. 180Cities, Bridges, and time of the Fleets setting out to Sea. It is made Treason for any to destroy a Ship that was provided for the State-service: Navem in Reipublicae expeditionem designatam: as a learned man translateth the Saxon.

And no Souldier must depart without leave, on forfeit of all his Estate. None may oppose the Laws, but his Head, or a grievous Mulct (according to the Offences quality) must recompence.

It was here also enacted, That Efferatur consilium quod Populo habeatur utilissimum. And again, In rem totius Patriae. And that each should do, as he would be done to: Which it calleth, the Most right Law ▪ And that the higher and greater men the Delinquents were, by so much the more and heavier they should be punished. Of which, and of their Wergylds, for all Ranks of men.

Again, Iniqua omnia, & injusta, quae Rex unâ cum Optimatibus, exterminare decreverit, abjiciantur, &c.

That about this time, Danegeld came to be paid to the Danes, (which was before against them) is agreed by all. Malmsbury is bold to ascribe it to a Decree of the Archbishop of Canterbury; but Huntingdon may be his Comment, telling us, That Consilio infausti Siricii Archiepiscopi, Edelredi 13. primum Statuerunt Angli, quod ipsi Censum Dacis persolverent. A clear Act of Parliament. Of which also, Florence of Wygorn.

p. 181And again, Anno 1007. Rex & Senatus Anglorum Dubii quid agerent, quid omitterent, communi deliberatione, gravem Conventionem cum exercite fecerunt; & ad pacis observationem 30000 l. ei dederunt, &c. This also from Huntingdon.

And among the Saxon Laws, we read, Foedus quod Ethelredus cum exercitu Anlavi, &c. ex Sapientum suorum Consilio feriit. And again, Pacis foedus Ethelredo Regi, & omni Populo, Leodsayre. And again, Socii ac foederati nostri, omnes per Mare & Terras, in Portu, & extra, pace fruuntor. With divers other Passages of Peace and War, setled by that Parliament.

Iornalensis addeth another Parliament in this King's time: Apud habam, & Constituerunt omnes, ut Regi suo pareant, sicut Antecessores sui melius fecerunt, & cum eo Pariter, defendant Regnum, &c. & ut cantetur quotidie pro Rege, Communiter & omni Populo suo. And again, Prohibemus omnem Roboriam, &c. & omnis Index Iustus Misericordiam & Iudicium liberet in omnibus; timeat omnis Iudex, ac diligat Iudicem suum, ne in die Iudicii mutus fiat, humiliatus, &c.

Nor may I forget the famous Judgment for the Bishop of Winchester, by the Thanes and Ealdormen, in the Witenagemote (or Parliament) of Eldred: Quo dum Duces, Principes, Satrapae, Rhetores, & Causidici, ex omni parte confluxerant. Of which, the old Book of Ely, cited by Mr. Selden in his Titles of Honour.

p. 182And for the Militia, Roger Hoveden is very clear and full, at the Danish Irruptions: Qua recognità, Rex Anglorum Egelredus (his names are many) suorum Primatum consilio, & classem, & Pedestrem congregavit exercitum. And again, Habito Concilio cum Regni suis Primatibus, utile Duxit à Danis dextras accipere, stipendium dare, & placabile tributum solvere. And again, Primatum suorum Concilio, nummos ad Danos, &c. And again, Rex & Regni sui Primates, ad illos (Danos) miserunt Legatos, pacem ab iis petentes; stipendium & tributum eis Promittentes.

So is old Florence of Worcester: Consilio Iussuque Regis Anglorum Aethelredi, procerumque suorum, de tota Angliae robustiores, Lundoniae, congregatae sunt naves. And again, Procerum suorum consilio, ad eos (Danos) Legatos misit, promittens tributum & stipendium. And again, Omnes Angliae Primates utriusque Ordinis ante Pascha Lundoniae congregati sunt, & ibi tamdiu morati sunt, quousque tributum Danis Promissum, quod erat 48000 l Persolveretur. And again, Cum apud Oxonefordam magnum haberetur placitum &c. eodem tempore Canutus cum magna classe, &c. Eadmundus Clito magnum congregavit exercitum, &c.

So is Matthew of Westminster; adding much to those before him, and ascribing that bloudy Council of the Danish Massacre to one Huna, Princeps Militiae, qui sub Rege, Regni negotia dispondenda susceperat; cujus consilio, misit litteras Rex in omnes Regni fines, Mandans p. 183nationibus singulis & universis, &c. Of which, St. Edward's Laws. But Oxoniense placitum, is in Florilegus: Magnum apud Oxoniam colloquium Anglorum pariter & Danorum. And so the old Glossary of Canterbury tenders Gemot by Placitum; and Fologemot, by Populi Placita. So also, Law-Mootes, are Placita: Magnum placitum; the great Folo-mout, or Parliament; as Comitatus placita, with Matth. Paris, County-Courts: parva placita, Oxford Parvises.

I must not stay long on the Acts of Parliament which Angles Kynnes Witena made and established, Cum Walliae Consiliariis de Monticolis: Where, among other things, we find it enacted, That Viri duo denijure consulti, Angli sex, Wallique totidem, Anglis ac Wallis jus dicunto. With which we might compare our Laws, de Medietate Linguae, &c.

But for our Trials by a Jury of Twelve, we have a much clearer Law in another Parliament of Ethelred; Frequenti apud Wanalingum Senatu. Of which, Iornalenfis, and Mr. Lambards Glossary. In singulis Centuriis Comitia sunto, atque Liberae conditionis viri duodeni, aetate Superiores, una cum praeposito, sacra Tenentes Iurante, se adeo virum aliquem Innocentem haud Damnaturos Sontemve absoluturos. An old MSS. thus: Habeantur placita in Singulis Wapentakis, ut exeant Seniores XII. Thani, & praepositus cum eis, & Iurent super Sanctuarium, quod eis dabitur in Manus, quod Neminem Innocentem velint accusare, vel Noxium Concelare. But of p. 184more ancient Tryals by Twelve, in fitter place: although I must not spend time to confute the Italian, who will have that terrible Custom (as he thought) brought in by the Conqueror.

The Proofs of Parliaments in Canutes time, are so many, and so full, that they tire us altogether. How he confirmed the Laws of Ethelred and other Predecessors, we read in the Monk of Malmsbury, who recordeth also his remarkable Letter from Rome, directed to the Archbishops, Bishops, &c. Primatibus, & Toti Genti Anglorum, tam Nobilibus quam Plebeis. As also his Charter to Glastonbury: Cum Concilio & Decreto Archipresulis Edelnothi, simulque Cunctorum Dei Sacerdotum, & Consensu Optimatum. Hoveden in full, in this also. Cujus (Edmundi) post Mortem, Rex Canutus omnes Episcopos, & Duces, necnon & Principes cunctosque Optimates Gentis Angliae, Lundoniae Congregari Iussit. A clear Summons of Parliament.

And the very name of Parliament, is found of his time, in the old book of Edmunds-bury: Rex Canutus anno Regni quinto, &c. Cunctos Regni sui Praelatos, Proceresque, ac Magnates, ad suum convocans Parliamentum. And again, In suo Publico Parliamento. And that it was indeed a full Parliament, we may believe from the persons we find there at the Charter of that Monastery, confirmed by Hardi-Canute; but granted by Canute, in suo Publico Parliamento, praesistentibus personaliter in eodem Archiepiscop. Episcopis, Suffragenis, p. 185Ducibus, Comitibus, Abbatibus, cum quam plurimis gregariis Militibus, (Knights of Shires, it seems) & cum Populi Multitudine Copiosâ (other Commons also) omnibus tum in eodem Parliamento personaliter Existentibus. And the Title of these Acts is, Statutae Canuti, Regis Angl. Dan. Norw. venerando Sapientum ejus Concilio, ad Laudem & Gloriam Dei, & sui Regalitatem, (Reipub. Utilitatem) & Commune Commodum, habita in S. Nat. D. apud Winton, &c.

This I find also cited by the great Judge in one part of his Reports; but fuller, by Sir Henry Spelman.

It would be tedious and superfluous, to cite the Authors that assert, he did confirm King Edgar's Laws in full Parliament. For which we might produce some better, or at least much older, than good Bale, or Grafton.

Many of his Acts of Parliament are printed: Consultum quod Canut. Angl. Dan. Norw. Rex Sapientum Concilio Wintoniae Sancivit. Here Allegiance or Fealty setled by Parliament, and afterwards, Praecipimus uniuscujusque Ordinis singuli, Muneris atque Officii sui Religionem Diligenter, cauteque teneant. And among other Encouragements to Chastity, this is one, That such chast men of God should enjoy the same Rights or Priviledges with Thanes: (and Ethelstane's Laws do equal Priests with Thanes) But there are two or three degrees of Thanes in these Laws about the Hereots: for the Eorles and Thanes, &c. much to be marked, as pertaining p. 186to the Militia. For which, and for all Canutes Laws, the old MSS. Huntingdon, is worth perusal.

Again, we find other Statutes, Civil or Politick, Sapientum adhibito Consilio, Mid, Minan Witenan raede, that Man heald ofer eall Englaland.

With provision against Thieves, Robbers, for the Peace, Hue and Cry, &c. There are Statutes also for repair of Burgs and Bridges: Scyrforhinga; praefidii fiat apparatus Terrestis ac Maritimus, quoties ejus Muneris Necessitas Reipublicae obvenerit.

And presently after, Quae ad Reipublicae pertinent Vtilitatem. Among the Crown-Prerogatives, Violata Pacis & Divitatae Militiae Mulcta.

Sheriffs Turns, Hundreds, and Tythings, are here confirmed; and the twelve-year-old Fealty, with views of Frank-pledge. But this Oath was to the Kingdom, rather than to the King: Fidem det omni se in posterum aetate, tum Furti, tum Furti Societate & Conscientià temperaturum.

Again, of passing Ordeals, Sythan tha Gemot waes on Winceaster; since the Parliament at Winchester (this being at Oxford:) at after, Iussum vero ac Placitum hoc Nostrum, si Praepositorum aliquis incuriâ omiserit, aut exequi aspernabitur, ex Nostrà Omnium Sententia, Regi 120 s. Dependito. A clear Parliament.

Si quis alium injustè, armis spoliavit, eam quae est loco Colli obstricti, Mulctam Dependito Healsfange. It is also in the same Laws, the punishment of false Witnesses. p. 187Some think it the Pillory, some worse; as the Original of that Proverbial Letany, From Hell, and from Halefax. See K. Hen. Laws, and Helfang.

Si quis in Militiâ (perfectione Militari) pacem violaverit, vita, vel Weregild Mulctator: si quid rapuerit, pro facti Ratione, compensato.

Si quis Pensionem ad oppida, pontesve reficiendos denegarit, Militiamve subterfugerit, dato is Regi 120 s.

Again, in those Statutes, The King must live upon his own Feormians (or Farms; which in Saxon, afford all needful for man:) and none may be compelled to give him any Maintenance: That the Folk be not burthened. It is the 67th Chapter.

Loss of Dower or Joynture to Widows marrying within twelve months, might seem hard; but so long she need not pay any Heriot. And the same Laws free the Wife from her Husbands Theft, although found with her; except it be lockt in her Hord, Chest or Tyge, (Dispensae, arctae, & Serinii) Of which that Law giveth her leave to keep the Keys. But Ina's Laws are hard, concerning Children.

Again, for the Militia, He that in Sea or Land-fight▪ leaveth his Lord or Comrague (& Felugo) must die as a Traytor▪ his Boocland to the King, other … Estate, to his Lord. But of him that dieth fighting with his Lord, without any Heriot, the Heirs may enter, and Scyftan hit, swithe righte. Of this Shift-Land and Gavelkind, Lambard in Terra & Scripto, Perambulation p. 188of Kent, and Spot of Canterbury; besides several Acts of Parliament, in Edw. 1. Edw. 3. and Hen. 8.

If Celeberrimus ex omni Satrapia Conventus, (which is there, and by King Edgar also, to be twice a year, or oftner) be Parliament, as such great men have thought; then have we much here also for Power and Priviledge of Parliament. Nay, more indeed, if it were but the Grand Folemoot or Sheriffs Turn, so much below a Parliament.

He that in such a Grand Moot had defended and maintained his Right and Plea to any Land, is there setled without dispute, for his life, and his Heirs, or Assigns, as his Will should dispose: Chapter 76.

And again, for Priviledge of Parliament (or yet lower) Sive quis ad Comitia profiscator, sive revertatur, ab eisdem, (from Gemote, or to Gemote) placidissima pace fruitur, nisi quidem furti fuerit manifestus. Theof, Thievery, founded more with them, than now with us. For their twelve-year-Oath (of which before) at Frank-pledge, was onelyonly against Theof; which yet seemeth to intend all above it: for what forbiddeth the less, forbiddeth the greater much more.

One thing more I may observe; through all these and other old Laws, there is still so much Religion and plain-hearted Simplicity, with Piety, expressed, that it shews our Ancestors had not yet learned to be ashamed of their God, or of looking towards Heaven.

I have been the longer in these, that so I may be p. 189the more brief in those that follow: for by this time I am come to the Laws of St. Edward, as he is called; and I should mispend my own time, and abuse others, in vouching all the Demonstrations of Parliaments in his time.

His Charters to Westminster are near enough, and may be known of all: wherein he confesseth his Resolutions for going to Rome. But, Optimates, Communi habito Concilio, rogabant me, ut ab intentione desisterem, his Vows made him more pressing, than else he should have been. But these also his Parliament undertook to satisfie; Et tandem, utrisque placuit (so he speaks) ut mitterentur Legati, &c.

While these stayed at Rome, procuring his Absolution, a Vision to a Monk commandeth repairing (or refounding) of St. Peters Westminster, as antient as Austin the Monk. (I cannot omit a passage in one of the Popes Letters of that time, telling the King, That he must expect great Motions and Alterations: for the World was near its great Change; and the Kingdom (which he calls, Sanctorum Regnum) foretold in the Scripture, was coming to begin, and never should have an end.)

King Edward refers it to the Parliament; and at length, Cum totius Regni Electione, (they are his own words) he sets upon the decayed Minster: Which he rebuilt, (with the Tenth of his whole Estate) and p. 190there reposed the Reliques (which the Popes gave to King Alfred at his Consecration) with this grand Priviledge of Refuge and Pardon, to any that fled hither, for Treason, or any other Crime whatsoever.

Another Charter he granted to the same Minister: Cum Concilio, & Decreto Archiep. Episcop. Comitum aliorumque Meorum Optimatum.

And a third Charter addeth, Aliorumque omnium Optimatum. And a little lower, Coram Episcopis, Abbatibus, Comitibus, & omnibus Optimatibus Angliae, omnique Populo. A very clear and full Parliament.

His Laws are in print. I must not so much as glance, but as he that followed the great King so swiftly, that his steps could not be seen upon the Sand.

May not his third Chapter extend to Priviledge of Parliament? ad Dedicat. ad Synod. ad Capitul. venient. Si Summoniti sint, &c. sit summa Pax. Hoveden will help sometimes for a Comment.

That of Out-Laws should be explained. It is, Ore Lagali Regis; which is, Per Iudicium Coronaterum; or in the great and old City, Per Iudicium Recordatoris. See King Ethelred's Charter to Vlfrie, of the Lands of Ethelsig, outlawed for Theof. Rep. part 6. Pref. But of Woolff-head, and the Outlaws being slain upon Resistance, I have spoken already. As also of Tythes, and King Ethelbert's Parliaments in these Laws mentioned, and of Rome-scot, Danegeld, and Weigrylds. But of these, again ere long.

p. 191Of the Kings Duty and Oath, we must speak more in due time. Of his Pardon, before, as it might stand with the Oath of his Crown. Here also we find, that when his Pardoning Power was largest, yet it could not reach to Murder or Treason, or other Crimes, but so as they must abjure: and if they stay and be found, any might do Iustice on them, without Iudgment. It is the 19th Chapter.

Somewhat we said of Degrees, or Counts, Earls, Thanes, or Barons. The Phrase doth here occur; but of elder times by much, nay, long before King Ethelbert's Barons: if we may believe Historians. But of this, again in due time.

Of the Iews, also before Iudaei, & omnia sua Regis, seemeth hard; but it had a gentle Comment in succeeding times, and here also they must be defended: Sub tutela & defensiones Regis Ligeà. The Phrase may be remembred, till we meet it again: King Iohn did but confirm King Richard's Charter to the Iews. See Hoveden and Matthew Paris, of Richard and Iohn, Walsing. Edw. 1. & Neustria.

Pax per breve Regis, is a short Expression; but it might have a long gloss, and be compared with all our books; laying this for a principle or foundation of Law, That Writs were made by Parliament; and without such common Consent, could not be changed. Of which, the Mirrour, Bracton, Fleta, divers others. But of another Breve de pace, before the Combat, in Right or Assize, Glanvil, Hengham, and the Register.

p. 192Of Frank-pledge, Tythings, Counties, Hundreds, and Wapentake, somewhat before. This Law may fill up Lipsius on his Tacitus: nor is it useless for the Militia. Hac de causâ, totius ille conventus dicitur Wapentac, eo quod per Armorum (i. e. Weapun) tactum, ad vincem confoederati sunt.

There is an old Comment on that, de moribus Germanorum; that may help and please in all, of Hundreds, Wapentakes, Cities, Counties, with Counts or Eolders: of which before, in State and Church. But to these of the Church, I did not then adde their Power and Custom of healing the Sick, by anoynting them. For which, the Saxon Canons of Aelfrick, may be perused.

In this Chapter of Greeves, with the Appendix de Heretochiis, we may see the whole Model of the old Militia; with the Power of Headboroughs, Constables, Bayliffs, Aldermen, Sheriffs, Lieutenants, or Generals, all the Greeves both in the Gree and Vae, Peace and War: for so the Law is pleased to criticize; and for Peace we do agree.

The Law is in print, and may be read of all; in which it is so clearly stated and asserted by these Laws. I should do wrong to take them in pieces.

Not onelyonly in matters of common Justice, or serving of Writs, or petty Cases of Peace, as some have pleased to express it; but when any unexpected doubtful mischief ariseth against the Kingdoms (or against the Crown) p. 193Nay, when it proceedeth so far as to War, Battel, or pitched Fields, the Heretoches must order the War; Ordinabant acies, & alas constituebans, Prout decuit, & prout eis melius visum est, ad honorem Coronae, & ad Vtilitatem Regni.

And lest yet there might be any mistake, the same Law telleth us, That those Heretoches, (ductores exercitus, capitales Constabularii, vel Mareshalli exercitus) were and still ought to be, chosen Per Commune Concilium (by Common Council;) and for the common good and profit of the Kingdom, even as the Sheriffs (saith that Law) ought to be chosen.

Again, the former Laws are renewed for those that flie, and those that die in the War, and of their Heriots; which here are again remitted, with all Relief. Of which, before.

I am the longer in this, because it was this very Chapter which has been so strangely cited; and that also from a place as much suspected, as any of all these Laws: which I do …ot speak as if I thought they might not be strongly asserted; even there where the oldest Copies are defective. And for one instance, of many, I might produce that piece about the Kings Oath; which is cleared not onelyonly by the Mirrour, and divers others, but by another passage in the oldest of these very p. 194Laws themselves; by comparing it with what is there said of King Edward's own Oath to his Kingdom. Of which, much more hereafter, on occasion.

To that of King Arthur's, King Edgar's, and King Ethelstane's Conquests, much might be added; in special, touching Scotland: Of which, before. And now I adde, That what is here ascribed to Eleutherius, may be much asserted and enlarged from those that have clearly stated the bounds, extent, and jurisdiction of the Province and Diocess of York: for to it belonged (as I find in a very good Author) all the Church of Scotland, long before it was divided into modern Bishopricks.

That of Norway, and their Affinities with England, and Oath of Fealty, may now be little worth; but in this that is added at the close of that Law, So did King Edward establish: Per Commune Concilium totius Regni: By the Common Council of the whole Kingdom, or by Parliament: which may well be added to each and every of those Statutes.

How the Militia was (on particular persons or places) assessed by Common Assent, hath been observed and cleared already. I shall now only adde this, That when such Assessments were made p. 195by Common Council, it was then no more in the Kings power to release them, than it was to impose them before, or without such Common Assent.

For this, might be cited in more than an hundred Charters, to religious houses, and places of greatest Franchise; in which there is such an usual exception to the Trined-necessity, of Military Expedition; Castle (or Burgbote) and Bricqbote: for here also, as with the Romans, they were especially Pontifices.

And where-ever these are found released, as to Peterburg, Canterbury, Westminster, but especially to Glassenbury, the first and oldest Church in Britain: Fons & origo, totius religionis. It may be a clear Demonstration of the Parliaments assent to such a Charter.

For otherwise they could not be dispensed with by the King, as we may find expressed in divers Charters; as in those of Crowland: which yet had great immunities. And of that Restriction, Matth. Paris may afford us the true reason, because those three were setled for the Kingdom: Propter Publicam Regni Vtilitatem, ut per ea resisterent hostium in cursibus. And K. William's Laws, Castel. & Burg. & Civit. fundatae & aedificatae ad tuit. Gent. & Popul. Regni, & ad Defens. p. 196Regni & idcirco observari debent cum omni libertate, integritate & Ratione.

Private Castles for habitation, may be given in Dower, and divided by Pacerners; but so may none for publick defence. Yet of such also, may a man be Tenant by the Curtesie, being able to guard them for Publick service of the Commonwealth.

One grand Objection must be removed; but we need not fear it: for it will flie or run away of it self. 'Tis that of the Conquest, as many are pleased to call it; not attending how little in this they be the Kings Friends: for if this were his onelyonly or his main and best Title, there might be found in future ages, some that may come to think it as lawful to conquer him, as it was or could be, to conquer them.

It must be considered: for if the foundation be not sure and low, the higher the building is, the nearer its fall. And it hath been observed, that the higher Skale (got up by accident) is more ready to pop down again, than it was before while it hung in due poize.

It seemeth a great weakness, to be apt or prone to Suspition: and therefore I shall not say I do suspect some that are most zealous for Prerogative, or the Title of Conquest, to be least p. 197acquainted with the Laws or Histories of England. But I cannot be wholly free from wonder, that any Lawyer or Historian that was friend to the King, should be passionate in these, which were so clearly quitted by that King whom they call the Conquerour.

He stood on Stilts or Patents, or Pantofles; but on plain English ground, with two feet, as other men. The left and the weakest was Succession to Edward, whose Kinsman he was, and Heir by Will; as appeareth by divers Passages in these very Laws of Saint Edward, and William; which may be seen and read of all.

But the right Leg, with the strongest and best Foot he had to stand upon, was the Peoples Assent, Consent, Acceptance, and Election; which we shall yet more fully clear, when we discuss the Right of Succession or Election to this Crown and Kingdom.

But for the present, it may suffice to observe, That all these Laws we now have of King Edward's, come to us through the Hands, and Grant, and Confirmation of King William the Norman; and no otherwise.

Which I need not prove to any that have either read or seen the Laws themselves, of which we speak.

p. 198For in the very Title and Preface thereof (besides divers other passages in them) all this, and much more, is fully related and recorded.

For it is there also further added, That all those Laws were so presented to the said King William, by a sworn Iury out of every County: Who did also assert, That these which they did present as the Laws of St. Edward, were the undoubted Laws and Customs of the Kingdom, that had also been collected into a Body by King Edgar, and continued (though sopite) through the Troubles of succeeding Kings, till Edward had the leisure to renew or rather confirm what was the Law before.

Nay, when among all those Laws King William did most encline to those which came from Norway (whence his Ancestors and Lords had issued forth, and where a Bastard might inherit) all the Patriarchs of England, Compatriotae Regni, qui Leges edixerant, did so move and press him (with such Arguments as may again be well considered) that at length in Parliament, Concilio habito, precatis Baronum; the King himself consented as they did desire. This is expressed in his own Laws.

And by his own desire, the Archbishop of p. 199Canterbury was one of those entrusted with enrolling or recording of those Laws: Which to that very King, and to his Successors to this very day, became one special Clause of the Coronation-Oath: Which was, To confirm all the Laws and Customs of the Kingdom; but especially the Laws of St. Edward, called the Confessor.

And one of King William's own Laws is, That all men observe and keep the Laws of King Edward in all things: Adauctis his quas constituimus, ad Vtilitatem Anglorum.

If this be not yet clear enough for the Laws themselves (which are now extant, and may be read and known of all) we might confirm it much by Ingulph, living at the same time, and bringing those Laws with his own hands from London to his Crowland, with such an Endorsement or Title of his own making: Leges aequissimi Regis Edwardi, quas Dominus meus inclitus Rex Willielmus Autenticas esse, & perpetuas, per totum Regnum Angliae, inviolabiliterque tenendas, sub poenis gravissimis Proclamarat: & suis Iustitiis commendarat, &c. He was like enough to know it.

And the old Book of Litchfield, cited in the p. 200great Reports (besides that of the Iury from every County) addeth also, That the same King William did by the Counsel of his Barons, call by Writ of Summons (Summoniri fecit) all the Nobles, Wise-men, (Elders of the Witan) and learned Lawyers in each County. And in that great Parliament, Ad Preces Communitatis Anglorum, Rex acquievit, &c. confirming all by Common Council. This of Litchsield is now printed in several places; and Roger Hoveden agreeth in Henry the Second.

Nor did he onelyonly confirm, but in some things mitigate; and in divers, explain and clear what might seem obscure or heavy to the People: (Ad Vtilitatem Anglorum.) His Laws are now printed, both with Mr. Selden's Notes on Eadmerus, and with Mr. Wheelock's Impression of the Saxon Laws and History; with a very good Preface of Sir Roger Twisden. They do oblige us much, that love and clear our Laws, so far as just and good.

What Emendations and Additions King William made to St. Edward's Laws in this also of the Militia, we have observed before, at our unexpected enterance on this Question. Which p. 209was not at all intended, to be once, so much as touched, but in one Parenthesis: Which was past Recovery, before this Discourse was so much as designed.

But now having wandred so much, and so far, (beyond my own purpose, as well as my Subject,) I could almost, be perswaded, to step a little further; and to touch (I must no more,) upon some few passages; between the Conquest, as they call it; and the Barons of Wars: Or the time of the great Charter. For, since that time, the Rolls and Printed Acts, are every where; much larger, and much better, than my little reading or my leasure, can present them.

Two words have sound of horror, to the People; who are taught, to think them both, oppressions, and the sins of him they call the Conqueror. Dane-geld; and the Book of Doomsday. (Some have added Curfeu, with I know not what, to make poor Children quake.)

These, have been proved, to be long before, the Normans coming in. To that of Dane-geld; I may add, that good King Edward, did also retain it, to his Coffers; (when the Danish Storm was over;) till he saw, the Devil dance upon it: As the Crouland Abbot doth Record. But p. 210it did rise, from one, to three, to four, to six shillings on the Hide; but so, by Parliament: as may be much collected from the 11th Chap. of King Edwards Laws; compared with Florence of Worcester, Hoveden, Huntingdon, Math. Paris, and Math. of Westminster, besides some others, which we must produce e're long.

And (to say nothing of eleemosyne pro Aratris; of which Canute and Ethelred:) it is clear, in King Ethelstanes Laws; that single Hides (or Ploughlands) in England, were to maintain two Horsemen, with Arms; by Act of Parliament. (And this was more it seems, than ever was King Williams Hydage; or Dane-geld.) Which may be added to King Ethelstanes Militia, as also, his Doom book; (for all Judgments in one Form; of which his Laws speak,) to what is said, of Booca Doom.

But to King Williams Doomsday, I shall now, add, (to what before,) that besides the Mirror, and Fitz-Herberts, N. B. with the old Abbot of Crouland. There is enough, in every segment of that Roll, to make one know, it was a Review; and little but a Review of what was done before. They do abuse us else, that bid us read, the T. E. R. in all that Roll, Tempore Edwardi Regis; plain enough, sometimes, without all Divination.

p. 211That it was, also confirmed by Parliament; may be clear enough from the many exemptions a servitio Regis, and a Vice-comit. Nay to some inferiour places; as Ely and Worcester: Besides old Crowland: which was not exempted from such service, till the latter Saxon, or first Normans time; though Ingulph spake of divers Ethelreds. But the same Abbot, will tell us, that this Doom Book, was now, also made; juxta Taxatorum fidem, qui Electi de qualibet Patria, &c. And that his Taxors were both kind and merciful; non ad verum pretium, nec ad verum spatium, &c. So preventing future Burthens and Exactions. Talem Rotulum, & multum similem ediderat quondam Rex Alfredus, &c. But Alfreds own Will, seemeth to carry it higher.

Nor was Ingulph's favour at the Court, altogether useless; for, by that, we come to know, that our Norman King, even in little things proceeded by a Great Councel. So, that our Abbots Charters, must be viewed by Parliment. Coram Domino meo Rege, ac universo Concilio, &c. Thence he brought St. Edward's Laws; as was observed before.

Huntingdon and Matthew Paris, with Matthew of Westminster, spake of his Hydage and Doomsday; as done with great Advice, and Justice. p. 212Misit Iusticiarios per unamquamque scyram, & inquirere fecit per jusjurandum, quot Hydae (i. e. jugera, uni Aratro sufficientia per annum;) essent in unaquaque, &c. Nor are they wholy silent, of his Parliaments, Cum de more, tenuisset curiam suam, in Natali, ad Gloucestriam, and again, at Winchester, the like at London, in another season.

Tilburiensis telleth us, that Mony was paid, to the Crown, by Cities, and Castles, that used no Tillage: But from the Land (or Farms,) only Victuals, till Henry the first. And when the Kings foreign Wars, did make him press for ready Mony, the people murmured; offering their Plowshares. Horum igitur Querelis inclinatus Rex, by advice of his Great council, (definito magnatum Concilio; he sent out discreet, prudent men; that upon view of all the Lands, should assesse the sums, which the Sheriffs were to pay into the Exchequer. This Gervase lived a while after King William.

Florence of Worcester, near his Reign, he telleth us, of a Great Councel, at Winchester. And again, of another, at a place called Pedred; not only by the King, Arch-Bishops, Bishops, Earls, but also, primatibus totius Angliae, a full Parliament; for which, Florilegius, and Walsingham, Newstria, may be considered, with Hoveden, following Wigornens.

p. 213That in his Reign there was an High Constable of England, (ceasing in Henry the Eight; appeareth by the Parliament Rolls of Edward the Fourth: (but Alfigar in the Book of Ely, was such; in St. Edwards time,) and to Him, some ascribe, the Constable of Dover: with the Warden, and Priviledge of the Cinque Ports (with their Hamlets, or Circuit; including Rye, and Winchelsey.) But all this speaketh Parliament, as doth also, his New Church Priviledge: Communi Concilio Archiep. Episcop. Abbat. & omnium Principum Regni mei. Yet to be seen, not only at Sir Robert Cottons Jewel House, but among the Rolls with King Richards Charters, for the Dean and Chapter of Lincoln.

This exemption of the Church from Seculars, &c. is the more considerable, because it came up with the Norman King; at the time of Hildebrand, whose Letters missive came hither, ad Willielmi Regis Concilium. And that this Councel, was a full Parliament; appeareth, by the Charters (as I may call them;) of the Arch-Bishop of York, ex praecepto Papae Gregorii 7. and Confirmatione Domini Willielmi Regis, sub Testimonio Universalis Anglorum Concilii, &c. Of which Roger Hoveden is clear, telling us also, that this King summoned, the Arch Bishops, Bishops, p. 214Abbots, Counts, Barons, Vice Comit. cum suis Militibus, were these Knights of Shires.

To this I may add (from the Continuer, of the Saxon Chronology;) that Lanfranc, came hither from Caen, (on the Kings call, and the Popes Command,) & primatum Regni Anglorum in Ecclesia Cant. suscepit; eligentibus eum Senioribus, cum Episcopis, & principibus, clero, & Populo Angliae, in curia Regis, a very clear and full Parliament. Nor may I so wrong our Common Law, as to detain that antient Record, which the great Judg in his Reports citeth; of a Writ of Right, brought by this Lanfranc (against Odo Bishop of Bajeux;) and removed by a Toll, into the County Court, where the King commanded all the good Lawyers, to attend the County; & a toto Comitatu, Recordatum atque judicatum est; That as the King held his Lands, in His Demesn; (in Dominio suo;) so was the Arch Bishop, to hold his, omnino liberas & quietas in Dominiquo suo;) which Judgment was afterward confirmed by the King and Parliament, cum consensu omnium principum suorum.

With which Record, I may compare the old Manuscrips in Bennets Coll. Cambridge; telling us, of a great Moot (magnum placitum) in loco qui dicitur Pinenden; in quo Lanfrancus diratiocinatur, and p. 215the conclusion, that he was to hold his Lands, and Customs, by Sea and Land; as free, as the King held his: ezcept in three things; si regalis via fuerit effossa; arbor incisa juxta, super eam ceciderit, si homicidium factum & sanguis in ea fusus fuerit; Regi dabit, alioquin liber a Regis exactoribus.

In the same Author, were read, of a Great Counsel at London; in that Normans Reign, and of another at Glocester; where the Arch Bishop of York, (jubente Rege, et Lanfranco consentiente,) did consecrate William Bishop of Durham; having no help (adjunctorium,) from the Scottish Bishops, subject to him: which may be added to that before, of Scotland, belonging to the Province or Diocesse of York.

Nor can I abstain from the next paragraph, in the same Author, how Lanfranc did consecrate Donate (a Monk of Canterbury;) ad Regnum Dubliniae, at the Request of the King, Clergy, and people of Ireland. Petente Rege, clero & populo Hiberniae, which with divers others, might be one Argument, for the Antiquity of Irish Parliments, and their dependance on England, long before King Henry the Second.

p. 216For which I might also cite King Edgars Charters, Oswalds Law; and divers Historians of his times. But the Charters mention Dublin it self; and yet our Lawyers, are so Courteous as to free Ireland from our Laws and Customs, till towards the end of King Iohn, and some of them conjecture, that the Brehon Law, came in again, and that our Parliament, obliged them not till Poynings Law in Henry the seventh.

But to return to our Norman King. I need not beg proofs of Parliaments, in his time; at least not to those, who know the Priviledge of antient Demesne, which therefore is free, from sending to Parliaments, and from Knights Charges, and Taxes of Parliament, because it was in the Crowns, not only in King William, but before him, in King Edward; and the Rolls of Winchester, for which, the old Books are very clear, with divers Records, of Edward the third, and Henry the fourth: besides natura brevium, That I say nothing of the old Tractat. de antiquo Dominico, which is stiled a Statute among our English Statutes.

And besides all the late Reports, or Records; I find it in the Year Books of Edward the Third, that he sued a Writ of Contempt, against the Bishop of Norwich, for encroaching on Edmondsbury, p. 217against express Act of Parliament: By King William the Conqueror, and by the Arch-Bishop of Canterbury, and all the other Bishops, Counts and Barons of England. It is 21 of Ed. 3. Mich. fol. 60. Title 7. Contempt, against an Act of Parliament.

This might well be one of the reasons, why the great Judge, giveth so much credit, to the old Modus of Parliament, as it was held in the time of King Edward the Confessor, which as the antient copy saith, was by the discreet men of the Kingdom, recited before King William the Norman, and by him approved; and in his time used.

I have cited it before, and compared it, with Irish Modus: which my much honoured friend Mr. Hackewil, one of the Masters of Chancery, hath under his hand attested; from the Great Seal and Charter of Henry the fourth, (which himself hath seen:) reciting a former Charter of King Henry R. Angliae & Hiberniae conquestor, & Dominus who sent, the same Modus into Ireland.

Where himself or his Son (Iohn sans terre;) had no great work to reduce them, to the civility of Parliaments: To which they had been long before accustomed, and the Roll p. 218saith, communi omnium de Hibernia consensu, teneri statuit, &c. nor doth the division of the Irish-Shires seem so lately setled, as some have thought; although I may not dissent from the great Patron of Civill, and Ecclesiastical Learning, the late Primate of Ireland.

Touching that Irish Modus, I have very little to add, to the fourth part of the great Institutes: in several places. I shall now, only observe, that both these, old Modi of Parliaments do agree; in this Custom of the Kingdom; that the King should require no Ayd, but in full Parliament; and in Writing to be delivered to each in degree Parliament.

And both they agree, that every new, difficult case of Peace; and any war emergent, within, or without the Kingdom, (vel Guerre emergat, in Regno vel extra,) ought to be written down, in full Parliaments; and therein to be debated, which may be considered, by all that will argue the Militia.

To which also we may add, one clause of the Jewish Laws; of their great Sanhedrim, to whom, they retain the power of Peace and War; especially where it is Arbitrary, and not meerly defensive, in which the Law of nature maketh many Magistrates; and this might with p. 219ease be confirmed, from the Laws and Customs, of all Civil Kingdoms in all ages. But I must not wander, from our English Laws.

I had almost forgotten that, which should be well remembred. Although many would perswade us to seek our Laws in the Custumier, of Normandy; it is not only affirmed in the Great Reports; but also asserted by Guil de Rovell Alenconien; (and proved by divers Arguments;) in his Commentaries, on that Grand Custumier; that the Normans, had their chief Laws from Hence. As had also the Danes ▪ in the time of Canute, for which, we might have more proof, and witness, than the Abbot of Crowland. So much even strangers did Love and Honour old English Laws.

Of King William the Second, (Sirnamed Rufus?) I shall speak but little; for I must discuss his Election, and Coronation Oath; in a fitter place.

Some footsteps we find of his Parliaments; in divers: Wigornensis and Hoveden tell us, that when he would have constrained the Scottish King; ut secundum judicium Baronum suorum, in curia sua, Rectitudinem ei faceret; Malcolm did refuse to do it, but in the Confines, or Marches, Where (he could not deny;) but the Kings of p. 220Scotland, were accustomed, rectitudinem facere regibus Angliae. But he then said, it ought to be, by the Iudgement of the Parliaments of both Kingdoms; secundum judicium utriusque Regni primatum;

And I find the like Record, cited on Fortescue, from Godfrey of Malmsbury. But Huntingdon, and Matthew Paris also relate, that the same King Malcolm, did submit, both to do Homage; and to swear Fealty to our English King, and Paris addetth, a pretty Story of King Malcolms overlooking Treason. But again to King William.

Of his Errors in Government, I shall only say, that if Edom, did really signified Red, as hath been thought; I could believe, that all Historians, speaking of Adamites, then oppressing the People; might allude to the near affinity, between Edom and Rufus, for Red. For, this was his Sirname, of King William the Second.

Henry the First, is yet alive in his Laws and Charters. Not only in Wendover, with other Historians; but among the Rolls, and Records, yet to be seen, in the Exchequer. They are now in Print, with the Statutes of King William; after the Saxon Laws. I must but run, and glance.

p. 221His Charter acknowledgeth his Crown, to the Mercy of God, and the Common Councel. Communi Concilio, & assensu, Baronum Regni Angliae.

It confirmeth King Edwards Laws, with all those Emendations which King William added; for the profit of the Kingdom. It forbiddeth all Levies, nay, the Monetagium Commune; but what was agreed, and setled in King Edwards Reign.

And the Test of that Charter; is, by Arch-Bishops, Bishops, Barons, Comitatibus, Vice-Comitatibus, & optimatibus, totius Regni Angliae, apud Westmonasterienses, quando Coronatus fui. This was copied out into every County, and kept in every Abby. So much also, we find in Matthew Paris.

Of his Charter to London, I may touch, in another place. This I must not omit in his Laws. Sive agenda proecipiat, levia permittat, hortatur maxima, vitanda prohibeat, yet still the Laws must be, Manifesta, Iusta, Honesta, & Possibilis; a kind of sacred Tetragram. It is the 4th. Chapter.

And the next, is the Basis, or Foundation of our Law process, and of all Judicials; In all Causes, Accusers, Parties, (or Defenders,) Witnesses p. 222and Iudges; be and must be distinct. Nec perigrina sint judicia, vel a non suo judice, vel loco, vel Tempore celebrata; nec in…e dubia, vel absente accusato dicta sit sententia, &c.

Nihil fiat absque Accusatore; nam Deus & Dominus Noster Iesus Christus, Iudam furem esse sciebat; sed quia non accusatus, ideo non abreptus. Testes Legitimi sint, & presentes; absque ulla imfamia, vel suspicione, vel manifesta Macula. Recte, Sacerdotes accusare non possunt (Laicos.) Nec oportet quemquam Iudicari, vel dampnari, priusquam Legitimos Accusatores habeat presentes: Locumque Defendendi accipiat, ad abluenda crimina, &c.

And again, Pulsatus ante suum judicem, si voluerit, causam suam dicat, & non ante suum Iudicem pulsatus, si voluerit, taceat. Si quis, Iudices suspectos habeat, advocet, aut contradicat. Appellantem, & vitiatam causam appellationis Remedio, sublevantem; non debet afflictio vel detentionis injuriare Custodia. Unusquisque per PARES suos, Iudicandus est, & ejusdem Provinciae. Quicquid adversus Adsentes, vel non a suis judicibus; penitus evacuetur, Chap. the 5th. and the 31th.

Iuramentum, debet habere Comites, Voritatem, Iustitiam, & Iudicium: si ista defecerint, non juramentum, sed perjurium est. Qui per lapidem, falsum Iurat, perjurus est. Deus ista accipit, sicut ille, p. 223cui juratur accipit. Iuramenta filii & filiae, nesciente Patre; & vota Monachi, nesciente Abbate, & juramenta pueri, irrito sunt.

Are These the Laws of England; or of Nature, rather? These we owe to Beauclerck; which he owed much to Cambridge. See Malms. of Plato's Kings.

Touching the Militia, (beside that in General, confirming King Edwards; and King Williams Emendations:) There are some particular, as of Tenants by Knights Service, to be freed from Gilds, &c. That so they might be more ready, for the Defence of the Kingdom: and in it, the Kings Service.

This agreeth with the old Writ, de essend. Quiet: de Tallagio: Which the Tenant in Chivalry, might require of Right. And Tenants in Dower, or Widows, had the like Priviledge, of which the Old Register, & natura brevium.

That also of Edgar or Canute; for Cowards in Land, or Sea-fight is renued; with that of Boocland, as before. Much also of Helfeng.

Releifs are agreed and setled. For Earls and the Kings Thaynes; with others called. Meane Thaynes. But in some Chapters Thaynes are equal to Barons. (And all Tenants En chief, at p. 224Clarendon, were stiled Barons: and Relief, is Cosin German to the Saxon Heriot. Being for the Heir or Militia: whence Heretoche in King Edwards Laws.

But the Dutch Here, is also Dominus, as Senior, in so many Nations; since the time of Charles the Great. And some will have the Saxon Heregeat, to be the Her's Geat, or Beast of the Lord, or Here: (which of old, was paid before, or rather than, the Mortuary.) And from this Here, som would derive Haeres. So, that all Heirs, should be Her's or Lords; as Homines were Yeomen, (You Men, or Young Men:) but Homines, in Law (as with us, Men) are Servi. Such they say were Yeomen, and none Gentlemen but such as came from Barons; or at least the Tenants in Capite, if not in Antient Demesn. But for this, see Edw. 1. Tit. Attorney. 103 And the Learned Ianus.

Dane-geld, is here also reduced to 12d. the Hyde; as of Old: (from which it rambled, to 3, 4, 6, 8, 10, or 12.) strict provision, is also made for keeping of Arms; and against using or lending them, for the dammage of Others. Nay a mulct, is set upon him, whose Lance, or Sword, doth much Trespass; though against his will. He is to be severely p. 225punished, that disarmeth any unjustly; and must answer, all the mischief that ensueth such disarming.

To this Kings time, belongeth the case of William the Kings Chamberlain, de Londonia: who refused to find a man, for the Army, as his Tenour required: But the Abbot of Abbingdon (of whom he held;) in presentia sapientum (in a Witen Moot) rem ventilari fecit, &c. Unde cum Lege Patriae, decretum processisset, ipsum exortem Terrae, merito deberi fieri, &c. by Friends, it was composed; and the Tenant enjoyed his Land.

I find it, from Sir Robert Cottons inestimable Treasury, cited by Mr. Selden on Hengham. Nor can I deny, but this (with divers other cases,) might forfeit the Land. But, as in case of Alienation of such Tenures; a Statute of Edward the 3d. provided that the King shall not retain the Forfeits, but shall only, take a Fine Reasonable; (which the Chancery, must also assess; by due Process:) So, is our Law very tender in all cases of Forfeit. And among the old Wytes, Wardwyte was for the Militia: being an acquittance of Mercy to him that had not found a man, for the Servise; according to his Tenure. Of which old Fleta, with others.

The Laws of this King do evince, the Tryal p. 226per PARES to be long before, the great Charter. Nor would it be hard, to shew it, before King Henry, and besides all other hints, through Elder times; the case is well known, of Roger Fitz Osborn, apprehended by Tiptoft Sheriff of Worcestershire; and condemned for Treason in King William the Norman; per judicium parium suorum; Of which antient Historians, before the Commentator on Magna Charta.

I should not omit King Henry's Charter, to the Abbot of Bee, confirming his antient Customs, and Priviledges, prescribed for St. Edmonds time, for Grand Assizes, &c. yet to be found in the Book of Assizes; lib. 26. Pl. 24. and in the 3d. or 8th. part of the great Reports: and in the Comment on Magna Charta, cap. 11. but here it is from Ethelred and Edward the Confessor.

One of his Priviledges, was to be free from the Justies of either Bench, and of Assize. Which is one of the first Records, for the antient Benches. But it may not be impossible to trace them, thorow some Elder times.

For the Saxon Law, (so often repeated, and confirmed) that none should complain to the King but want of Right; or against summum jus, at Home, might in modern Language be translated Thus. The Writ of Right, must abide the Baron or Bayliffe: p. 227(For it cannot fall to a Copyhold Steward:) except the Lords default, or consent, or the Tenants suit, procure a Tolt, to lift it up to the County Court. Or a Pone, place it in the Common Pleas.

That such a course was antient, may be gathered from the Mirror, Asser, and others of Alfred, Edgar, Canute, Ethelred: and of the Tolt before, in King William. To which I may add the Writ of Right (in the third Book of Reports;) brought by I. de Beverlace, against Walter of Fridastern; and by a Tolt removed from the Court Baron, to the County; and for default of the Baron, (how it must be falsified, we may touch; (anon) it was concluded, before Ranulph de Glanvil, Sheriff of Yorkshire.

Glanvil is clear enough; for the course of removing to higher Courts; and of the Writ de Pace, stepping between the Combat (on the Writ of Right) and Assize, Coram justitiis in Banco sedentibus, and although this Book (intituled Glanvil) was not written, till about Henry the 2d. yet it is plain enough, that he speaketh of Antient Custom. His words are very considerable.

The grand Assize (saith he;) is a Royal benefit, granted by the Parliament; (Clementia principis, de Concilio procerum, populis indultum;) as being that p. 228which saved blood, and did oft prevent the Combat (on the Writ of Right;) and of this he speaketh (in the third of the same Book;) as of a very old and antient Custom. Secundum jus & consuetudinem Regni antiquam. A weighty expression, from so antient an Author: which may possibly lead us higher than the Saxon times. For, we may find the Duel, or Combat, among the Gaules (from British Druides:) as among the Germans also; whence our Fathers came.

Nonnunquam etiam armis de principatu contendunt. So of the Gauls or British Druids; He that was like to know it, and of those, and Germans, Tacitus, and Diodorus Siculus, before Aventinus. Some observe it, in the Salique Law; and among the Laws of Charlemaign, and that the Longobards did bring it into Italy; where it was also setled by Law. But of our Ancestors combats, in another place.

I know not any Fines upon Record, till Richard the First. But Stowels Case in Plowden, may inform us, that they were before the Norman. And we need not doubt, the Books of Edward the third; speaking of Benches, settled in Henry the first, but I do not remember, the phrase of Capitalis Iusticiarius noster, till great Charter; which repeateth elder Customs.

p. 229Goodwin, the famous Earl of Kent, among the Saxons, had two Sons, that (in as good an Author as Huntington) are stiled, Regni Iusticiariis; (the phrase is common, in Hoveden, and others, of the times of Clarendon Assizes.) And K. Edgar had a Cosin Ailwin; who was totius Angliae Aldermannus; which is supposed, Lord Chief Iustice; by a Learned man; besides the best (though yet imperfect) Glossary. But it might denote the Lord High Constable: Of which before, in William the first.

And William the 2d. found great Odo of Baieux, setled L. Ch. Justice of England. Iusticiarius totius Angliae. So, Matth. of Westminster. and Huntingdon calleth him, Iusticiarius, and Princeps and Moderator totius Angliae, in Wigornensis, He is Custos Angliae. And the phrase of Iusticiarius, is also in Matth. Paris of William the first: Iusticiarii in Banco Regio, of after times, as also, placita de Nova disseissena; before Justices in Eyre. But he speaketh of placita lethifera; the Pleas of Life and Death; (yea, even in Bishops Courts;) about the Normans coming in.

But in Polydore, we find out 4 Terms, (with divers other elder Customes) ascribed to the first Norman. But that which he addeth, of the place, for these Courts, to be, at the Kings appointment; p. 230might be true: till the Law fixed the Pleas, which may be, long before our Charter, of Henry 3d. where it is confirmed, not created. But, for the Kings Bench, the Return was, coram Nobis ubicunque, &c. and for the Pleas, coram Iusticiariis nostris apud Westmon.

That which Virgil addeth of the Iudges in Westminster; and of those higher beyond appeal; and of Iustices of Peace, setled by the Conqueror; (as he saith Sheriffs were,) in every County: may be more considered. For it may be, as much too late, as, some have thought it, too early.

They which presume to make K. Henries Cubit the first Standard of Winchester; must refute the old Saxon Laws; (of which before:) For, those may seem to deserve, as much credit as Malmsbury, other marks.

That he did confirm the Curtesie d' Angletterre I may yeild to the Mirror, and other Authors: but not that he first began it. For the Statute of Kentish Customs; and those that treat of Gavel-kind, may shew us an Older Tenure by Curtesie; there also, where the Tenant had no Issue.

And this may teach us, whence the like Custom came into Ireland; as also to be, Curialitas Scotiae; which our master seemeth to forget, when he saith Que ne'st use en auter Realm, forsque p. 231tant solement en Engleterre. But his Commentator he lyeth in this; and in divers other things.

In case Entails, this English Curtesie is very remarkable: in which the Book of Cases have great diversity. But those that perswade us, there was no Land in Tayles before the 2d. of Westminster, in King Edward the first; (which are all, that subscribe to Littleton;) must interpret the Laws of King Alfred, much otherwise than I can do. For the 37th. Chap. of his Laws, is to me, much clearer, for Lands Entail'd; then is all the Statute, de Donis Conditionalibus.

One Case of the Courtesie; may be considered, for the Militia. If Land in Capite descend to a Woman; who upon Office found, intrudeth (on the King;) and taketh an Husband; and by him, hath Issue; and then dieth: yet cannot the King eject or detain the man; but he shall be Tenant by the Kingdoms Curtesie; although he came in, upon Intrusion. Which seemeth to hint, that Our Law, did chiefly intend, the Kingdoms good defence, and service, (which might be performed, by such an intruder:) rather than the Kings pleasure; or his bare Prerogative, in this, which is thought, so great a Prerogative, of Tenure in Capite. For which the Comments on Magna Charta. and the Statute of Prerogative; p. 232with Littletons Dower, and Curtesie; are clear enough.

To Henry the first, they also ascribe the Curtesie; of saving the wreck, from his Exchequer; if there were, so much as a Cat, or a breathing Creature let in the Ship. I do not deny him, to be so courteous as to confirm, some such Sea-Custom; (for which, he had a very sad Occasion; when his Sons and Daughter, with so many Friends were drown'd in one Shipwrack.) But, as Richard, soon after him, seemeth more courteous, in this also, (if we may believe Hoveden:) So I doubt not, to assert it, to higher and elder Times. And yet the Law Maritime, is dark enough: with all the jurisdiction of the Court Admiral. Whose office, may be harder, than the Name: A strange mixture of Greek and Arabick.

The old MS. del' Office del' Admiral; hath divers Records of H. 1. R. 1. and K. Iohn: Speaking of Tryals by 12. (as at Common Law;) but now the practise is much otherwise. In the Rolls of Ed. 1. the Name of Admiral: but not in our Printed Laws, that I know, till Edw. 2d. And in Edw. 3d. the Rolls are full of that Office, parted among divers: for the North and South Seas, &c. As was touched before, in Edgar.

In Richard the 2d. it was brought to a weldy p. 233model: being uncertain rather than infinite before. For the bounds were ever straiter much, than some may imagine. They were again disputed in Henry the 4th. Eliz. and Iames. It lies more open to the Common Law, than to the Wind and to a Premunire, (some are apt to think;) much more, then all are aware. I may touch it again in a fitter place.

Here I shall only add, that besides the Laws of Arthur the Brittain, and Edgar the Saxon; we have some Records (for so I may call them,) of Customs by Sea; as well as by Land. With Priviledge, to some, below the King; before the Norman; whom they make the Founder, (yet he was but Patron,) of the Ports; and Wardens for the Sea. Somewhat of this in Lanfranc's Case before: and more again ere long.

Historians are clear and full of this King's Parliaments; and of his Summons to Parliament. Majores natu Angliae Londoniae Congregavit. and again, principes omnes & totius Regni Nobilitatem sanctione adnotavit: so the Monk of Worcester, and Hoveden (almost in the same words,) which Matthew Paris, expresseth thus; magnatibus regni Edicto Convocatis. And in Walsinghams Neustria; Majoribus regni; and Principibus Convocatis, Virgil himself confesseth his full Parliaments.

p. 234And of a Convocation House, distinct from the Parliament, sitting at the same time; they are plain enough. Et cum rege principes regni omnes, tam Eccles. quam Secular apud Westmon. ubi etiam Anselm. Cantuar. Archiep. magnum tenuit Consilium; de his quae ad Christianitatem pertinent. as Florence, and Hoveden.

Huntingdon, is also clear in such a distinction; Rex tenuit Concilium apud Londoniam; & Willielmus Archiep. Cantuariensis, similiter in eodam villa, apud Westmon. and this Author useth to stile, the Parliament, magnum placitum, (of which before;) and the Convocation House, Concilium, or Synodus; which yet in him, in all, was confirmed by Parliament; or else invalid.

In Parliament were also decided, the Great Contests between Canterbury and York; not only concerning the Crown, or Act of Coronation: in which (to this King,) they both joyned; as we find in Matth. Paris, and Walsingham. But the Parliament declared, that it did not at all belong to York: as besides Hoveden, we read in him, that continueth Florence of Worcester. But in Beckets absence, it did fall to York: and so it had been before. So also Canterburies contest with the King was debated in full Parliament, three days together, in the Arch Bishops absence: and at p. 235length composed, with the consent rather than content of both parties.

The King was resolute for investiture as he found it from his Father and Brother: the Clergy was pertinacious, for the Popes Decrees. But the Emperour (Son in Law, to our King;) did so muzzle Pope Paschal; that he Consents and Decrees, that none should be Consecrate, but whom the King Invested, as the Clergy, and People chose him.

It seemeth considerable, how all Historians (of that time and dispute,) do Record, the choice of Bishops, to be in the People: in Phebe and in Populo, as well as in Clero.

They mention Radulph, ordained a Bishop for the Orcades: but rejected by all, because not Elected by Common assent of the People; Plebis, Clero, Principis, 'tis every where in the old Monks; and how the poor Bishop, wandred up and down, as an assistant, to other Prelates. Of him and of English Right in Scotland, and Ireland; much might be added, from the Notes of Eadmerus; and somewhat of Lanfrancs Plea at Pinenden.

And at Prince Roberts Landing; commoti sunt principes erga Regem causa Roberti, &c. But many of the Lords left the Parliament, (subtrahentes se p. 236de Curia;) sed Episcopi, et milites Gregarii & Angli, (the Commons) stuck to the King; who was Provincialibus gratus: and at length the Witan or Parliament, composed the quarrel. Sapientiores utriusque partis habito consilio, Pacem inter fratres composuere. 'Tis in Florence and Hoveden, with Malmsbury.

Wendover with Huntingdon Record, how the great Firebrand in that War, Ranulph of Durham, was committed by the Parliament: de Communi Consilio Gentis Anglorum. This was the great man. whom K. William, had made Pacitator, in Matth. Paris: but Placitator & exactor totius Regni, in the Monk of Worcester.

His continuer addeth also, that the Peace, or League with France, in this Kings time; was made by Parliament; Consilio optimatum: and that by advice of Common Council, the Custody and Constableship of the Castle of Ros or Roch (with its Ford, &c.) were setled in the Arch-Bishop, and Church of Canterbury: with leave to build a Tower, and divers other Priviledges, for the Militia.

I must not mention the Orders of King Henries Parliaments, against Money Clippers and corrupters: with such a change of Money, as made things very dear. So dear a time that an Horseload p. 237of good Wheat, could scarcely be bought under six shillings: as Henry of Huntingdon and others.

Of King Stephens Election, more, when I shall discuss, the Right of Succession to the Crown. But I must not omit that which, of him, is Recorded by so many good Authors: That he did prohibit the Laws brought hither from Rome. And this also by Parliament: as Bale affirmeth. But of this, in much older writers.

Frier Bacon is one, (in his Compendium of Theology, or his opus minus: and the great Reporter citeth it, from Bacons impedimentum sapientiae.) He was a very Learned man, and a most genuine Son of Art; his Opticks and his Burning-glasses, would be more enquired after; for they may be little worse than those of Archimedes, who in this is newly found to go beyond himself.

Such Glasses must be Conick Section: and in Concaves not exactly Circular, but parabolical, for which there is as real Demonstration, (by the Law of Reflections;) as for the best perspectives, (by refractions,) in Ellipses, and Hyperbolies: to which I must not add, that Mirandum Naturae of two lines, that approach nearer and nearer, in infinitum; yet they still shall be Asymptots, and never meet, (for such attend Hyperbolies.

p. 238Which yet, is more Demonstrable, by Reason; than is that of Mersennus, (or others) by sense; that Concave Glasses may be placed in such a continued proportion (may I say) of Reflection; that by such it may be possible to fire a Ship, (or other matter combustible;) at a far greater distance, than between Dover and Calice. I say not (as some have said,) in infinitum.

But in this and all the Mathematicks; who can add, to him that did contract (and correct) Longomont, into a page? Our Country-man, he is: but at too great a distance, in Breda.

But I must not wander from K. Stephen. His Repeal of Roman Laws, is also in Sarisburiensis (living in the time of K. Henry the 2d:) an Author of Credit, and polite enough. It is among his Court trifles (Polteraticus, or de nugis Curialium).

Nor is he content to meddle only, with mean Courtiers; but even of the highest, he is plain enough. And one of his Thesis, is, that by Reason and Scripture, it is both Lawful, and a glorious Act, to kill a publick Tyrant. But of his exceptions to the Oath of Fealty; we must have more in its Time and Place.

That of K. Stephen is in his 8th. Book, and 22 chap. (near enough to his discourse of Tyrany.) Where we have also an hint of him, that p. 239brought those Laws into this Kingdom. Theobald the Arch Bishop of Canterbury, going to Rome for his Pall (some say;) and for this the Monk of Malmesbury, would be considered; Who hath also Recorded, K. Stephens Oath; of which we must speak again. I must not dispute whether those Italian Laws, by him prohibited; were the Civil, or the Canon Laws: which I rather believe. Although I cannot deny, but the Civil also did come in, or intrude upon our English Laws. Nor may I forget a passage of Parliament in that famous Appeal, or charge of Treason, in King Richard the Second's Time.

The Lawyers especially Civilians, were consulted, about the charge. They conceived it, not to be rightly moulded, according to the forms of Law. But the great Council resolved, and declared, that they would proceed, by no other Law, but the course and Custom of Parliament. To which they added, that England never was, ought or should be Ruled or Governed, by the Civil Law: which yet is enough: (some think too much;) in causes Maritime and Ecclesiastick, that I speak not of any other Courts.

Fortescue (or rather the young Prince in him) telleth us, of some of our Kings, that have attempted to bring in, the Civil Laws, and patrias p. 240Leges abolere, but I cannot tell who, those were; no more, than the Learned Commentator. Except perhaps, he may reach up, to King Lucius; who did desire the Roman Laws, (even for the State:) but can we say, the Civil Laws, were then Born? or at least Christned, enough for a Christian King?

But the reason, why, any King so much esteemed the Civil Law; may be rightly guessed; to be this, grand maxim of Tyranny; Quod principi placuit, Legis habet vigorem. A Sentence of the Civil, Royal or Imperial Laws; citeth indeed, by Glanvil, Bracton, and others of our Lawyers: who refuted, rather than allowed it. But in this who can add to Mr. Seldens late Dissertations on Fleta.

Wigornensis, lived till K. Stephens time. In him, or his Continuer, we find what Laws these were, & how, or who did bring them hither. For we are there told, that Theobald with other Prelates, had a Summons from the Pope to Rome: and there were admitted to a Council; such as many ages could not Parallel. For thence, (he saith) they brought those Canons, or Decrees; quae longe lateque per Angliam jam Conscriptae.

He lived not perhaps to know they were prohibited: but he doth intimate, enough, in what p. 241a cold manner, the Parliament did entertain, the Legate, sent from Rome. He was a great Leveller, it seemeth: For, he came, to pull down, and to destroy; that so, he might plant, or build, we read it, in the Monks. Who bring, this Legate, Coram Rege & primoribus. And again, before the Commons also; Episcopis, Abbatibus, & innumera Cleri & Populi multitudine.

Ere long, we find K. Stephen at another Parliament; ad Boum vadum Oxes foord; or Oxford. Where some Lords, or Prelates, are committed, for suspicion of Treason. And by some it is ascribed to the King alone. But in the Monk of Malmesbury, we may find it done upon complaint of Those, he calleth potent Laicks: and by Councel, or perswasion of Magnates, and Proceres Regni.

The thing doth speak it self. For one of the Lords, committed was the great Roger of Salisbury, (the grand Favorite;) of whom before. His Charge was this, in chief; that without leave of King and Parliament; he had built, and fortified a Castle. But in his own Devise (this was the Castles name;) he did ensnare himself. The Name and Fate, hath since been found, observed more than once; and yet they write, it was the fairest Castle in all Europe.

Matth. Paris followeth Huntingdon and Hoveden; p. 242but in this, they both come short of Malmsbury; well acquainted with that famous Roger, whose misgiving heart, was like, to have prevented, what did follow, in that Parliament. But so we might have lost, or mist that Act, which here was made, for the Militia: setled clearly in the King and Parliament.

We find it also in the old Continuer of the Monk of Worcester. Who living at that time, doth tell us, that in full Parliament, (habito postmodum Concilio, coram primoribus Angliae, statutum est,) it was Enacted for a Statute, that All Burghs, Castles, Forts, &c. (in quibus secularia solent exerceri negotia) should submit to the King & Parliament. Regis & Baronum suorum juri cedant. And by vertue of this Act of Parliament, was the Castle of the Devise presently demanded; and at length yeilded: while the great Prelates neck, (or his Sons who had been also Chancellor,) was in the Rope to have prevented his Quartain, of which he died.

In the same Author we find much, of an High Constable; and several men, with that Title. One is Milo: who did lead the King, in Royal State; cum honore, Regiam ad Aulam; ubi Cives fidelitatem Iuraverunt, &c.

Ere long, we find him charged with Treason, (so as is worth considering, for the Militia;) p. 243and his Office conferred, on Walter de Bello Campo; Wigornensi Vice-comite. But discontents (that rose before) did now increase. And when the Oath of Fealty, was pressed on some; they refuse, and say, the King may take their words, if he please.