to the kings most excellent majesty, in parliament. the humble petition of james percy percy, james, - ? approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing p bb estc r this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) to the kings most excellent majesty, in parliament. the humble petition of james percy percy, james, - ? [ ], - , [ ] p. s.n., [london : ?] caption title. imprint from wing. reproduction of the original at the harvard university library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng percy, james, - ? -- early works to . england and wales. -- parliament -- early works to . land titles -- england -- early works to . inheritance and succession -- england -- early works to . - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion to the kings most excellent majesty , in parliament . the humble petition of james percy . sheweth , that this annexed petition fairly writ , was presented at the bar of the lords house the th . instant . that your petitioner is at a vast charge in keeping his witnesses in town , waiting for an order , and a day appointed , according to the prayer of the said petition . he therefore prays , that your majesty would be graciously pleased to call for the said petition , and cause it to be read ; and that a short day may be appointed , that a fair hearing may be had , to find out the truth , and that justice may be done accordingly : and let it not be said in england , that the innocent are punished , and the guilty go free : but call to mind how merciful god hath been , in restrring your majesty ; even so in pity restore your poor distressed subject . and he shall ever pray , &c. james percy . this petition was presented into his majesties sacred hand , the th of december . to lose such an opportunity as offered on thursday last , and now to trouble so good a king so oft , doubles your petitioner's sorrows . and that which adds to your petitioner's misery , is , that he cannot dispose of his witnesses , till a positive order be had ; for which he humbly prays . note these three following presidents . . the lord of newport begg'd the percies land of the king , for the duke of monmouth , when the duke was in france : but at the duke's return , percy the claimant waited upon the duke , to know his pleasure ; and told him , that my solicitor had betrayed me , for the percies lands were begg'd without the claimant's consent or knowledge . then the duke replied , mr. percy , you shall have a fair tryal at law : and moreover he did promise he would not stand upon priviledge : but when percy was ready for a tryal , then trumpt up priviledge . and mr. ross the duke's agent said , the duke could not set aside his priviledge : but the duke said , if percy proves himself heir , i have no right ; and forthwith sold his interest for an inconsiderable sum of money . . the lord ogle , that married the lady elizabeth percy , would have assumed the name of percy ; and put in a bill to be made an act to settle the lands upon him by act of parliament . . and it is reported that the lord of essex desired that some of those lands might be settled upon him by act of parliament . by this account the lands are yet unsettled : ergo then great reason it is , that the true heir-male of the percies bill should be made an act of parliament , to settle the name , title and estate together again , according to the first settlement confirmed by his ancestors . now your poor distressed and oppressed petitioner humbly and freely offers , for the obtaining of justice , and for the full satisfaction to the kings most excellent majesty , and the right honourable lords spiritual and temporal , and those honourable and worthy members of the house of commons in parliament assembled , ( if it be required and thought convenient , he being very unwilling to offer any thing that might give the least offence , but rather submit to their grave and mature wisdoms ) these proposals following . james percy the claimant and plaintiff , will pay into the hands of any trustees that shall be appointed to receive the money in trust for mr. john blakeston's costs , provided he likewise lay down the l. taken by surprize out of court before the tryal was ended . and mr. vtting's cost likewise shall be paid , for what sir john coppleston claims ; provided likewise that sir john coppleston pay the l. down , which he got when he ventured the breach of priviledge of parliament : provided the whole merits of the cause may have a fair hearing and determination before the lords : and if the plaintiff and claimant james percy , doth not prove himself to be the right true and next heir-male in blond of the percies of northumberland , then let them take all the money , and the plaintiff will freely acquit his claim for ever , and remain till death a loyal subject , and james percy . although his witnesses be dispers'd , a weeks time will bring them to town again , upon the sight of an order . for the claimant james percy ( by birth ) ought to enjoy the place , seat and priviledge of his ancestors , earls of northumberland ; but now he dares not appear , till an order be had . therefore he most humbly prays , that a fair hearing may be had , and that a true decision of his just cause and claim may be made , according to justice : so that the innocent may be preserved , and that the fraudulent practices not just may march off with shame : for heroick actions glorifies god , honours the king , and makes all the people shout for joy . god hath been pleased to make a true decision himself , which may be a president ; for he sent the claimant from his mothers womb with a crescent into the world , which is gods ensign of truth , and the very badge belonging to the percies earls of northumberland . in witness to this truth , i have set to my hand and seal , this d. of january , / . james percy . crescent from percy blazon to the supreme authority of england, the high court of parliament assembled at westminster the humble petition of richard truelove and henry truelove, of the town of ipswich, on the behalfs [sic] of themselves and others, heirs at law to thomas causton, late of thundersley in the county of essex, gent. a martyr truelove, richard. this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (thomason .f. [ ]). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing t thomason .f. [ ] estc r this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (thomason tracts ; : f [ ]) to the supreme authority of england, the high court of parliament assembled at westminster the humble petition of richard truelove and henry truelove, of the town of ipswich, on the behalfs [sic] of themselves and others, heirs at law to thomas causton, late of thundersley in the county of essex, gent. a martyr truelove, richard. truelove, henry. england and wales. parliament. sheet ([ ] p.) s.n., [london : ] imprint from wing. annotation on thomason copy: "june ". reproduction of the original in the british library. eng caustun, thomas, d. -- early works to . land tenure -- great britain -- early works to . inheritance and succession -- great britain -- early works to . great britain -- history -- commonwealth and protectorate, - -- early works to . a r (thomason .f. [ ]). civilwar no to the supreme authority of england, the high court of parliament assembled at westminster; the humble petition of richard truelove and henr truelove, richard a this text has no known defects that were recorded as gap elements at the time of transcription. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - robyn anspach sampled and proofread - robyn anspach text and markup reviewed and edited - pfs batch review (qc) and xml conversion to the supreme authority of england , the high court of parliament assembled at westminster ; the humble petition of richard truelove and henry truelove , of the town of ipswich , on the behalfs of themselves and others , heirs at law to thomas causton , late of thundersley in the county of essex , gent. a martyr : in all humility shewing , that the said thomas causton was in his life time scised in fee of divers freehold and copyhold lands , tenements and hereditaments , in essex and elsewhere . that the said thomas causton , o novembr . o and o phil. & mar. surrendred all his copyhold lands in tillingham , to the use of william his son , which lands have ever since been enjoyed by the said william , his heirs and assigns . that afterwards the said thomas causton , in those times of persecution in the days of queen mary , was burnt as an heretick , for his faithful adhering to the protestant religion , as is recorded in the book of martyrs , fol. . and thereupon all other his lands , tenements and hereditaments , were seized into the then crown , and have been , and to this day are held and enjoyed , either by leassees from the late kings and queens , or by such who without any title enjoy them , to the great prejudice of your petitioners . that william the son of thomas causton , dyed without issue , and the said copyhold lands surrendred after his decease , desended on elizabeth his onely sister , who then was the onely heir of the said william , and of the said thomas their father . that the said elizabeth married william truelove your petitioners grandfather , who enjoyed the said copyhold lands , and ought likewise to have enjoyed all other the lands and tenements , freehold and copyhold of the said thomas causton , which ought to descend on your petitioners . that your petitioners have faithfully served and adhered to this parliament , ever since the beginning of these troubles , both in their persons and estates . and now they are humble suiters unto your honors , that for the glory of god , the honor of the parliament , and encouragement to true professors of religion , your honors will please to restore to them the lawful and rightful inheritance of their ancestors , so wrongfully detained from them ; and that to this purpose , your honors will refer the examination of the premises , to the right honorable , the councel of state , or such other committee as your honors shall please , and that in the mean time none of the said lands may be sold . and your petioners shall daily pray for your honors , &c de successionibus apud anglos, or, a treatise of hereditary descents shewing the rise, progress and successive alterations thereof : and also the laws of descent as they are now in use. hale, matthew, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing h estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) de successionibus apud anglos, or, a treatise of hereditary descents shewing the rise, progress and successive alterations thereof : and also the laws of descent as they are now in use. hale, matthew, sir, - . shower, bartholomew, sir, - . [ ], p., folded leaf. printed and are to be sold by a. baldwin ..., london : . first edition. attributed to sir matthew hale. cf. bm, nuc pre- . dedication and "to the reader" signed: b.s. [i.e. sir bartholomew shower]. "a scheme of pedigrees ...": p. [ ] at end. chapter of the author's the history and analysis of the common law of england, which was first published in . reproduction of original in the university of illinois (urbana-champaign campus). library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng inheritance and succession -- england. land tenure -- england. primogeniture -- england. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - john pas sampled and proofread - john pas text and markup reviewed and edited - pfs batch review (qc) and xml conversion de successionibus apud anglos : or , a treatise of hereditary descents , shewing the rise , progress and successive alterations thereof . and also the laws of descent as they are now in use . london printed and are to be sold by a. baldwin in warwick-lane , . to sir s. e. knight . this treatise is most humbly dedicated by his most obliged and most obedient servant , b. s. to the reader . this little treatise of hereditary descents being recommended to my perusal , i willingly embraced the opportunity of shewing my esteem of the great learning of the author , and my love for the publick in sending it abroad . and i was the i am unwilling to detain you any longer than only to tell you , that tho' in this treatise there is nothing but what most practicers do know already ; yet the method i beleive will render it useful in some sort to those of the greatest learning . b. s. de successionibus apud anglos . my design in the following discourse is to treat of the hereditary transmission of lands from ancestor to heir , and the certainty thereof , and what growth this doctrine has had in succession of time , till it arrived to the state and prefection which now it hath . and touching hereditary transmission , or succession commonly with us called descents , i shall hold this order in my discourse , ( viz. ) st , to give some account touching the ancient laws , both jewish , greek and roman , concerning this matter . ly , to observe some things , wherein it may appear , how the particular customs , or municipal laws of other countries , varied from those other laws . ly , to give some account of the rules and laws of descents , or hereditary transmissions as they stood , and at this day stand in england , with the successive alterations , that process of time , and the wisdom of our ancestors , and customs grown up , tacitely , gradually and successively , have made therein . and first touching the succession or descent of inheritance , as also of goods , among the jews , mr. selden in his book de successionibus apud hebraeos , hath given us an excellent account , as well out of the holy text , as out of the comments of rabbins , or jewish lawyers , which i briefly comprise , in the , , , and chapters of that book , the sum whereof , for so much as concerns my purpose , is this . . that in the descending line , the descent or succession , was unto all the sons , only the eldest had a double portion , ( viz. ) if there were three sons , the eldest had two fourths , and each other son one fourth part . . the nephew , or son of the son , dying in the fathers life , and so in infinitum , succeeded in the partition of his father , as if his father had been in possession of it . . the daughter did not succeed in the inheritance of the father , as long as there was sons , or descendants from the. but if one son had died in the life of his father , having daughters and without sons , his daughters succeeded in his part , as if he had been possessed . . in case there were no sons but daughters , the daughters equally succeeded their father without any prelation of the eldest , to two parts , or a double portion . . but if the son had an inheritance , and died without issue , having a father , and brothers , the inheritance of the son descended , not to his brothers unless in case of the next brother taking to wife the deceased's wife , to raise children for the brother deceased , but in such case the father inherited his son entirely . . but if the father were dead , it came to the brothers , as it were as heirs to the father , in the same manner , as if the inheritance had been actually possessed by him ; and therefore , the fathers other sons , and their descendants in infinitum succeeded , but yet equally , and without any double portion to the eldest , because ( though in truth the brothers succeeded as it were in right of representation from the father ; yet ) the father dying before his son , the descent was de facto , immediately from the brother to the brother , where the law gave not a double portion ; and in case the father had no sons , or descendants from them , then it descended to all the sisters . . if the son died without issue , and his father or any descendants from him were extant , it went not to the grandfather , or his other descendants . but if the father were dead without issue , it descended to the grandfather , and if he were dead , then to his sons and their descendants , and for want of them , then to his daughters or their descendants , as if the grandfather himself had been actually possessed , and had died . and so , mutatis mutandis , to the proavus , abavus , atavus , &c. but the inheritance of the son , never retorted to the mother , or to any of her ancestors , but she and they were totally excluded . . the double portion that was therefore jus primogenituroe never took place , but in that person that was the primogenitus of him , from whom the inheritance immediately descended , or in him that represented him . if a. had two sons , b. and c. and b. the eldest , had two sons , d. and e. and died , b. should have had a double portion , ( viz. ) two thirds and c. only one third . and if b. had died in the life time of a. and then a. died , d. and e. should have had the two thirds , or double portion , which had belonged to b. if he had survived his father , and this double portion should have been divided between d. and e. thus , viz. d. should have had two thirds of the two thirds that came to them , and e. the other third part thereof . among the graecians , the laws of descents , in some sort , resembled those of the jews . in some things they differed vide petyts leges atticae , tit. . de testamentis & haereditario jure , where the text of their law runs thus , omnes legitimi filii haereditatem paternam ex aequo inter se haeriscunto . siquis intestatus moritur , relictis filiabus , qui eas in vxores ducent haeredes sunto . si nullae supersint , hi ab intestato haereditatem cernunto . et primo quidem fratres defuncti germani & legitimi fratrum filii hoereditatem simul adeunto . si nulli fratres aut fratrum filii supersint , iis geniti eadem lege haereditatem cernunto : masculi autem iis geniti , etiamsi remotiori cognationis sint gradu , proeferuntor . si nulli supersint paterni proximi ad sobrinorum usque filios , materni defuncti propinqui simili lege haereditatem adeunto . si è neutra cognatione supersint intra definitum gradum , proprior cognatus paternus adito notho nothaeve . superstite legitima filia , nothus hoereditatem patris ne adito . this law is very obscure , but the sence seems to be briefly this , that all the sons equally inherit the father ; but if he have no sons , then the husbands of the daughters ; if he have no children , then his brothers , and his brothers children ; and if none , then his next kindred of the part of his father , preferring the males before the females ; and if none of the fathers line , ad sobrinorum usque filios , then to descend to the mothers line . vide petyt's gloss . in hanc legem . among the romans it appears , that the laws of succession did successively vary , for the laws of the twelve tables excluded the females from inheriting , and had many other straitnesses which were successively remedied by claudius , and after him by hadrianus , in senatus-consulto tertulliano , and after him by justinian , in the third book of his institutes , de haereditatibus quoe ab intestato deferuntur , and the two ensuing titles . and again , all this further explained , and setled by the novel constitutions of the same justinian , stiled authenticoe novelloe , de haereditatibus ab intestato venientibus , & agnatorum jure sublato ; therefore omitting the large inquiry into the successive changes of the roman law in this particular , i shall only set down how , according to the constitution , the roman law stands setled therein . the descents , or successions from any person , are of three kinds , viz. . descending . . ascending . . collateral , viz. in agnatos à parte patris , in cognatos à parte matris . st , in the descending line , these rules are directed . . the descending line , whether male or female , whether immediately or remote , takes place , and prevents the descent or succession ascending , or collateral , in infinitum . . the remote descendants of the descending line , succeed in stirpem , that is , to succeed into that right , which his parents should have had . . that this descent or succession is equal in all the descendants , without preference of the male before the female . so that , if the common ancestor had three sons and three daughters , each had a sixth part , and if one died in the life of the father , having three sons and three daughters , that sixth part , that had belonged to the person dead , should have been equally divided , between his or her six children , and so in infinitum , in the descending line . ly , in the ascending line , there are these rules . . if the son die without issue , or any descending from him , leaving a father and mother , both of them shall equally succeed to the son , and prevent all others of the collateral line , except brothers and sisters , as shall be said , or if only a father , or only a mother , he or she alone shall succeed . ly , but if the deceased had a father , mother , brother and sister , ex utriusque parentibus conjuncti ; they shall all equally succeed the son , by equal parts , without preference of the male. . in the collateral line . . if the descendant die without father , mother , son or daughter , or any descending from them in the right descending line , the brothers and sisters ex utriusque parentibus conjuncti , and the immediate children of them , shall succeed equally , withoutpreference of either sex , and the children from them , shall succeed in stirpes . as if there be a brother and sister , and the sister dies in the life of the descendant , leaving one or more children . all such children shall succeed in the moiety , that should have come to their deceased mother , had she survived . . but if there be no brothers or sisters , ex utriusque parentibus conjuncti ; nor any of their immediate children , then the brothers and sisters of the half-blood , and their immediate children , succeed in stirpes , to the deceased , without any prerogative to the male. . but if there be no brothers or sisters of the whole , or half-blood , nor any of their immediate children , ( for their grand-children are not provided for by law ) then the next kindred are called to the inheritance . . but if the next be in equal degree , whether on the part of the father , as agnati ; or on the part of the mother , as cognati , then they are equally called to the inheritance , and equally succeed in capita , and not in stirpes . thus far of these settled laws of the jews , greeks and romans . but the particular , or municipal laws , and customs of almost every country , derogate from these laws , and direct successions in a much different way . for instance , by the customs of lombardy ( according to which , the rule of the feuds , both in their descents , and other things , are much directed ) their descents are in a much different manner . lib. . feud . tit. . if a feud be granted to one brother , who dies without issue , it descends not to his brother ' , unless especially so provided in the first infeudation . — if the donee dies , having issue sons and daughters , it descends only to the sons . whereas , by the roman law , it descends both to the sons and daughters . the brother also succeeds not , to the brother , unless specially so provided , ibid. tit. . the ascendants succeed not , but only the descendants , neither doth a daughter succeed , nisi ex parte , vel nisi sit feudum foemininum . if we come nearer home , to the normandy laws , there are two kind of lands partable , or not partable ; the lands that are partable , are all vavasories , burgages , and such like , which are much of the nature of our soccage lands . these descend to all the sons , or to all the brothers . lands not partable are fiefs and dignities ; these descend to the eldest son , and not to all the sons , and if there be no sons , then to all the daughters partable . for want of sons and nephews , it descends to the daughters , if no sons or daughters ; or descendants from them , it descends to the brothers ; and for want of brothers , to the sisters , observing , as before , the difference between lands partable and not partable , and accordingly the descent runs to the posterity of the brothers , unto the seventh degree . and if there be no brothers or sisters , or any descendants from them , within the seventh degree , it descends to the father ; and if the father be dead , to the uncles and aunts , ut supra , to brothers and sisters ; and if there be none , then to the grand-father . so that , according to their law , the father is postpon'd to the brother and sister , and their issues , but is preferred before the uncle ; tho' by the jewish law , the father be preferred before the brother ; by the roman law succeeds together with the brother ; and by the english law , takes not immediately by descent , but the fathers brother . if lands descend from the part of the father , they never resort by descent , to the line of the mother ; but in cases of purchases by the son , who dies without issue ; for want of heirs of the part of the father , it descends to the heir of the part of the mother , according to the law of england . the son of the eldest son , dying in the life of the father , is preferred , before the younger son surviving the father , as the law stands here now , but it hath some interruption . . in an equality of degree , in collateral descents , the male line is preferred , before the female . . although by the civil law , fratres utriusque parentis conjuncti , praeseruntur fratribus consanguineis tantum , vel uterinis ; yet it should seem , by the custom of normandy , that fratres consanguinei , viz. ex eodem patre , sed diversa matre , shall take by descent , together with the brothers , ex utroque conjuncti , upon the death of any of such brothers . but this seems to be a mistake , for it seems the half-blood , hinders the descent between brothers or sisters . . leprosie was among them , an impediment of succession , but then it seems , it must be solemnly adjudged to be a leprosie , by the sentence of the church . upon this and much more that might be observed , upon the customs of several countries , the rules of succession , or hereditary transmission , have been various in several countries , according to various laws , customs and usuages . and now , after this brief survey of the laws and customs of other countries , i come to the laws and usuages of england in relation to descents , and the growth that those customs have successively had , and whereunto they are now arrived . . touching the hereditary succession , it seems , that according to the ancient british laws ; their eldest sons inherited their earldoms , and baronies , for they had great dignities , and jurisdictions annexed to them , and were in nature of principalities . but their ordinary freeholds descended to all the sons ; and this custom they carried with them into wales , whither they were driven . this appears by the statute walliae ed. . aliter usitatum est in wallia quam in anglia quoad successionem haereditatis , eò quòd haereditas partibilis est inter haeredes masculos , & à tempore cujus non extiterit memoria partibilis extitit . dominus rex non vult quòd consuetudo illa abrogetur , sed quòd haereditates remaneant partibiles inter consimiles haeredes , sicut esse consueverunt , & fiat partitio illius sicut fieri consuevit ; hoc excepto , quòd bastardi non habeant de caetero haereditates , & etiam quòd non habeant purpartes cum legitimis , nec sine legitimis . upon which three things are observable . first , that at this time , the hereditary succession of the eldest son , was then known to be the common , and usual law in england . ly , that the succession of all the sons , was the ancient customary law among the british in wales , which is here continued . ly , that before this time , bastards were admitted to inherit in wales , as well as the legitimate , which usuage is here abrogated . and although we have but few evidences , touching the british laws , before their expulsion into wales , yet this usage seems sufficiently to evidence , that this was the antient british law. ly , as to the times of the saxons and danes , their laws collected by brampton , and by mr. lambard , speak not much concerning the course of descents . yet it seems , that commonly the descents of their ordinary lands , ( at least except barronies and royal inheritances ) descended also to all the sons . among the laws of canutus , there is this law , lambard fol. , tit. de intestato mortuis . sive quis incuria , sive morte repentina fuerit intestato mortuus , dominus tamen nullam rerum suarum partem ( praeter eam quae jure debetur hereoti nomine ) sibi assumito . verùm eas judicio suo vxori , liberis , & cognatione proximis , justè ( pro suo cuique jure ) distribuito . upon which we may observe these things . st , that the wise had a share , as well of lands for her dower , as goods . ly , that in reference to hereditary succession , there then seemed to be little difference , between lands and feuds , for here is no distinction . ly , that there was a kind of settled right of succession , with reference to proximity and remoteness , pro suo cuique jure . ly , that in reference to children , they seemed all to succeed alike , without any distinction between the males and females . ly , that yet the ancestor might dispose by his will , as well of lands as goods , which usage seems to have obtained , unto the time of h. . as appears hereafter by glanvil . . it seems , that until the conquest , the descent of lands was , at least to all the sons alike , and , for ought appears also , to all the daughters , and that there was no difference in the hereditary transmission of lands and goods at least , in reference to the children . this appears , by those laws of king edward , confirmed by the conquerer and recited in lambard fol. . and also by mr. selden upon eadmerus , lege . tit. de intestatorum bonis . siquis intestatus obierit , liberi ejus haereditatem equaliter dividant . but this equal division of inheritances among the children , was found to be very inconvenient . for first , it weakned the strength of the kingdom , for by frequent parcelling , and subdividing of inheritances in process of time , inheritances were so crumbled , that there were few persons of able estates , left to undergo publick charges or offices . ly , it did by degrees , bring the inhabitants to a low kind of country living , and families were broken , and the younger sons , which had they not had these little parcells of land to apply themselves to , would have betaken themselves either to trades , or military , or civil , or ecclesiastical imployments , neglected those opportunities , and applied themselves to their small dividends of land , whereby they neglected opportunities of greater advantage , to enrich themselves and the kingdom . and therefore , william the conqueror ( having by his accession to the crown , gotten the possessions and demeans of the crown ; and also , very many and great possessions of them that opposed him , or adhered to harold ) ; disposeth of these lands , or great part of them to his countrymen , and others that adhered to him , and retained certain honorary tenures , either by baronage , or in knights service , or by grand serjeantry , for the defence of the kingdom . and possibly also , as the desire of many owners , changed their tenures into knights service . which introduction of new tenures , was not nevertheless without consent of parliament , as appears by the additional laws before mentioned , that king william by the advice of parliament made mention of by mr. selden , upon eadmerus pag. , among which this was one , ( viz. ) statuimus etiam & firmiter praecipimus ut omnes . comites , barones , milites . & servientes , & universi liberi homines totius regni nostri , habeant , & teneant se semper in armis , & in equis , ut decet & oportet . et quod sint semper prompti , & bene parati ad servicium suum integrum nobis explendendum , & peragendum , cum semper opus affuerit , secundum quod nobis de feodis debent , & tenementis suis de jure facere . et sicut illis statuimus , per commune consilium totius regni nostri & illis dedimus & concessimus in feodo jure haereditario . whereby it appears , that there were two kinds of military provisions , one that was set upon all freeholders , by common consent of parliament , which was usually called assiza armorum , and another that was conventional , and by tenure upon the infeudation of the tenant , which was called knights service , and sometimes royal , and sometimes foreign service , and sometimes servicium loricae . and hence it came to pass , that ( not only according to the custom of normandy , but also according to the custom of other countries . ) these honorary fees , or infeudations became descendable to the eldest , and not to all the males . and hence it is , that in kent , where the custom of descent to all the males , generally prevails ; they pretend , a concession of all their customs by the conqueror , to obtain their submission to his government , according to the romantick story of their moving wood. yet , even in kent it self , these ancient tenures or fees , that are anciently held by knights service , are descendable to the eldest son , as mr. lambard hath observed to my hand , in pag. . out of the th of h. . fitz tit. prescription , h. . . and the statute of h. . cap. . but yet , even in kent it self , if gavelkind land , escheat , or come to the crown by attainder , or dissolution of monasteries , and be granted to be held in knights service , or per baroniam , the customary descent is not changed , neither can be , but by act of parliament , for it is a custom fixed to the land. but those honorary fees , made in ancient times , so shortly after the conquest , did silently , and suddainly assume the rule of descent to the eldest , and accordingly held it ; and so , ( although possibly there were no act of parliament of those elder times , that altered the ancient course of descents , from all the sons to the eldest , or at least none that we know of ; yet , ) the use of the neighbour country , might introduce the same usage here , as to these honorary possessions . and because these honorary inseudations were many , and scattered almost through all the kingdom in a little time , they introduced a a parity in the succession of lands of other tenures , as soccage or vavasories . so that without question , by little and little almost generally in all counties of england ( except kent , who were most tenacious of their own customs , in which they gloried , and some particular fees , and places where a contrary usage prevailed ) the generality of descents or successions by little and little , as well of soccage lands , as of knights service , went to the eldest son , according to the declaration of king edward the first , in the statute of wales abovementioned , as will more fully appear by what follows . in the time of h. . lambard fol. . we find in his th law , that it should seem , that the whole land did not yet descend to the eldest son , but began a little to look that way . primum patris feudum primogenitus filius habeat . as to collateral descents , the law determined thus , lambard ut supra . siquis sine liberis decesserit , pater out mater ejus in haereditatem succedat ; vel frater vel soror si pater & mater desint ; si nec hos hàbeat , soror patris vel matris , & deinceps in quintum geniculum ; qui cum propinquiores in parentela , fiunt , haereditario jure succedant ; & dum virilis sexus extiterit , & haereditas abinde fit , foeminina non haereditetur . by this it seems . . the eldest son ( though he had jus primogeniturae , the principal fee of his father , yet ) he carried not all the land. . that for want of children the father or mother , inherited , before the brother or sister . . that for want of children , father , mother , brothers and sisters , the lands decended to the uncles and aunts , to the fifth degree . . that in succession collateral proximity of kindred was preferred . . that the male was preferred before the female ; that is , the father's line was preferred before the mothers , unless the land descended from the mother , and then the mothers line was to be preferred . how this law was observed in the intervals , between henry the first , and henry the second , we can give no account . but the next period that we come to , is henry the d . glanvil in his seventh book , gives us some account how the law stood in his time , wherein , notwithstanding it will appear , there was some incertainty in the business of descents , or hereditary successions , though it was much better polited than formerly . the rules then of succession were either in reference to goods or lands . as to goods , one third part went to the wife , another third part to the children , the other third part to the testator's disposal ; but if he had no wife , a moiety went to the children , the other moiety to his disposal , glan . lib. . c. . but as to the succession of lands , the rules were these : st , if the lands were knights service , they generally went to the eldest son ; and in case of no son , to all the daughters ; and in case of no children , to the eldest brother . ly , if the lands were socage , it descended to all the sons , si fuerit socagium & id antiquitus divisum , only the chief house was to be allotted to the pourparty of the eldest , and a compensation made to the rest in lieu thereof . si vero non fuerit antiquitus divisum , tunc primogenitus , secundum quorundam consuetudinem totam haereditatem obtinebit , secundum autem quorundam consuetudinem postnatus silius haeres est , glanvil lib. . cap. . so that although custom directed variously the descent , either to the eldest , youngest , or all the sons ; yet , it seems at this time jus commune , or common right spoke for the eldest son to be heir , no custom intervening . ly , as the son , or daughter , so their children in infinitum are preferred in the descent before the collateral line , or uncles . ly , but if a man have two sons , and the eldest dies in the life time of the father , having a son or daughter , and then the father dies ; it was then controverted , whether the son , or the nephew should succeed the father , though the better opinion seemed to be for the nephew , ibid. cap. . ly , a bastard could not inherit , ibid. cap. and although by the common and civil law , if a. hath a son born of b. before marriage , and after a. marries b. this son be legitimate and hereditable : yet according to the law of england then used , as well as after , he was not hereditable , glan . lib. . cap. . ly , in case the purchaser die without issue , the lands descended to the brother , and for want of brothers to the sisters , and for want of them to the children of the brothers or sisters , and for want of them to the uncles , and so onwards according to the rules of descents at this day ; and the father and mother were not immediately to inherit the son , but the brothers or uncles , and their children , glan . lib. . cap. . and it seems , that in all things else the rule of descent , in reference to the collateral line , held much the same as now : as namely , if land descended of the part of the father , it should not resort to the part of the mother , & è converso ; but in case of purchase , for want of heirs of the part of the father , it resorted to the line of the mother , and the nearer and worthier blood was preferred , so that if there were any of the part of the father , though never so far distant , it hindered the descent to the line of the mother , though much nearer . there were in those times as it seems two impediments of descent , or hereditary succession which now do not at all obtain . . leprosie , if so adjudged by the sentence of the church , this indeed i find not in glanvil , but i find it pleaded , and allowed in the time of king jolin , and the land adjudged to the sister , p. . johannis . . there was another curiosity , and it is wonderful to see how much , and how long it prevailed , for we find it in use in glanvil , that wrote in king hen. d's time ; in bracton , that wrote in hen. d's time ; in fleta , that wrote in the time of ed. . and in the broken year ed. . fitz. avowry . nemo potest esse tenens & dominus & homagium repellit perquisitum . and therefore , if the eldest brother had enfeoffed the second reserving homage , and had received homage , and then the second had died without issue , it should have descended to the youngest , and not to the eldest brother ; quia homagium epellit perquisitum , tee for this that i may mention it once for all , glan . lib. . cap. . bra. lib. . cap. . fleta lib. . cap. . and so it has been for ought i can find ever since ed. . and indeed it is antiquated rather than altered , and the fancy upon which it is grounded hath appeared trivial ; for if the eldest brother enfeoff the second reserving homage , the second dying without issue , it will descend to the eldest as heir , and the seignioury is extinct . indeed it might have been some reason to have examined , whether he might not have waved the descent , in case his services had been more beneficial than the land ; but there could be little reason for this to exclude him from succession . i shall mention no more of this nor the former impediment , ( viz. ) leprosie , for they are both vanished , and antiquated long since , and neither the one nor the other is at this day any impediment of descent . and now passing over the time of king john , and richard the first , because i find nothing of moment in that time relating to the title in question , unless the usurpation of king john upon his eldest brothers son , which he would fain have justified , by introducing a law of preferring the younger son before the nephew , descended from the eldest brother : but this pretention could no ways justifie his usurpation , as hath been shewn in the time of henry the second . we have the tractate of bracton lib. . cap. , . and lib. . the truth is , there is so little variance as to the points of descents , between the law as it was taken when bracton wrote , and the law as it was afterwards taken in edward the first 's time , when britton and fleta wrote , that there is very little difference between them as may easily appear , especially by comparing of bract. ubi supra and fleta lib. . chapter the th , liber the th , chapters the st and d , that the latter seems to be in effect an abstract of the former , therefore i shall set down what in substance both say , and thereby it will appear , that the rules of descents in the times of henry the d , and edward the st , were very much one . st , the law seems settled now unquestionably , that the eldest son was in common right heir , not only in cases of knights service land , but also of soccage lands , unless there was a special custom to the contrary , as in kent and some other places , and so that point of the common law is fully settled . ly , that all the descendants in infinitum , from any person that had been heir ( if he had been living ) were inheritable : as the descendants of the son , of the brother , of the uncle , & c. ly , that the eldest son dying in the life time of the father , his son or issue was to have the preference as heir to the father before the younger brother , and so the doubt in glanvil's time was settled , glan . lib. . cap. . cum quis autem moriatur habens filium postnatum & ex primogenito filio praemorturo nepotem , magna quidem juris dubitatio solet esse , uter illorum praeferendus sit alij in illa successione ; scilicet utrum filius an nepos . ly , the father , or grandfather could not by law inherit immediately his son. ly , leprosie , though it were an exception to the plaintiff , because he ought not to converse in the courts of law , yet we no where find , that it was an impediment of descent . so that upon the whole matter for any thing i can observe in them , the rules of descent then stood settled in all points as they are at this day , except those few matters which yet in process of time soon settled as they now stand , ( viz. ) . that impediments of the hinderance of descent , from him that did homage , to him that received it , seems to have yet been in use , at least till the ed. . and in fleta's time , for he puts the case and admits it . whereas they both agree that half-blood to him who is the purchaser , is an impediment of the descent ; yet in case of a descent from a common ancestor , half-blood is no impediment . for instance ; a. hath issue b. a son , and c. a daughter by one venter , and d. a son by another venter , if b. purchase in fee , and die without issue , it shall descend to the sister , and not to the brother of the half-blood : but if the land had descended from a. to b. and he had entred and died without issue ; it was a doubt in the time of bracton and britton , whether it should go to the younger son , or the daughter , but though it were then a doubt , yet the law hath since that time been settled , that in both cases it descends to the daughter , seseina sacit stirpem & primum gradum , & possessio fratris de feodo simplici facit sororem esse haeredem . upon the whole matter it seems , that abating these small inconsiderable variances , the states and rules of descents as they stood , in the time of henry the third , or at least of edward the first , were reduced to their full complement and perfection , and vary nothing considerably , from what they are at this day , and have continued ever since that time . i shall therefore set down the state , and rules of descents in fee-simple as they stand at this day , without medling with particular limitations and entails , which vary the course of descents in some cases from the common rules of descents in hereditary succession , and herein we shall see what the law hath been , and continued touching the same ever since bracton , who wrote in henry the third's time , now above four hundred years since , and by that we shall see what alterations succession of time hath made therein . and now to give a short scheme of the rules of descents , or hereditary successions of the lands of subjects , as the law stands at this day , and hath stood settled here for above four hundred years . all possible hereditary succession may be distinguished into these three kinds : st , descending , as from father to son , or daughter , to nephew , or niece . ly , collateral , as from brother to brother , or sister and brothers children . ly , ascending , either direct , as from son to father , or grand-father which is not admitted by the laws of england ; or in the transversal line , as to the uncle or aunt , great uncle , or great aunt , and because this line again divides it self into the line of the father and mother , this transversal ascending succession is either in the line of the father , grandfather , & c. or in the line of the mother , grandmother , & c. the former are called agnati , the latter cognati , i shall therefore set down a scheme of pedigrees , to explain the nature of descents , or hereditary successions . pedigree . this pedigree with its application will give a plain account of all hereditary succession , under their several cases and limitations , as will appear by these ensuing rules , take our mark or epocha from the father . rule , in descents the law preferrs the worthiest blood ; and upon this account . st , in all descents immediately the male is preferred before the female , whether in successions , descending , ascending or collateral ; therefore the son inherits and excludes the daughter , the brother is preferred before the sister , the uncle before the aunt . ly , in all descents immediate , the descendants from males are preferred before the descendants from females ; and hence it is , that the daughter of the eldest son , is preferred in descent from the father , before the son of the youngest son , the daughter of the eldest brother or uncle is preferred before the son of the younger ; the uncle , nay the great uncle , or great grand-fathers brother shall inherit before the uncle of the mothers side . rule , that in descents , the next of blood is preferred before the remote , though equally worthy ; and upon this account . st , the sister of the whole blood , is preferred in descents before the brother of the half blood , because more strictly joyned to the brother of the whole blood , ( viz. by the father and mother ) than the brother , though otherwise more worthy of the half blood. ly , because the son , or daughter is nearer than the brother , the brother or sister than the uncle , the son or daughter shall inherit before the brother or sister , and they before the uncle . ly , that yet the father or grand-father , or mother or grand-mother in a direct ascending line , shall never succeed immediately , the son or grand-child : but the fathers brother shall be preferred before the father , and the grand-fathers brother , shall be preferred before the grand-father , and yet upon a strict account , the father is nearer of blood to the son than the uncle , yea than the brother ; for the brother is therefore of the blood of the brother , because both derive from the same parent , the common fountain of both their blood. and upon this account , the father is at this day preferred in the administration of his sons goods , before his sons brother of the whole blood , and a remainder limited proximo de sanguine shall vest in the uncle . rule , that all the descendants from such a person , as by the law of england , might have been heir to another , hold the same right by representation , as that common root , from whom they are descended . and therefore , st , they are in law in the same right of proximity and worthiness of blood , as their root that might have been heir , was in case he had been living : and hence it is , that the son or grand-child , whether son or daughter of the eldest son , succeeds before the youngest son. the son or grand-child of the eldest brother , succeeds before the youngest brother , and so in all degrees of succession by the right of representation , the right of proximity , is transferred from the root to the branches , and gives them the same preference as next , or worthiest of blood. ly , this right transferred by representation , is infinite and unlimited in the degrees of those that descend from the representer ; the filius , the nepos , pronepos , abnepos , and so in infinitum , enjoy the same privilege of representation , as those from whom they derive their pedigree , as well in descents lineal as transversal ; and therefore the abnepos , or abneptis of the eldest brother , whether it be son or daughter , shall be preferred before the youngest brother , because , though the female be less worthy than the male ; yet she stands in right of representation of the eldest brother , who was more worthy than the youngest . ly , and upon this account it is , that if a man hath two daughters , and the eldest die in the life of the father , leaving six daughters , and then the father dies , the youngest daughter shall have an equal share to all the rest , because they stand in representation of their mother , who should have had but a moiety . th rule , that by the laws of england , without a special custom to the contrary , the eldest son or brother , or uncle excludes the younger , and the males in an equal degree do not all inherit : but the daughters whether by the same , or divers venters do inherit together , the father and all the sisters do inherit , the brother by the same venter . th rule , that the last actual seizin in any ancestor , makes him as it were the root of the descent equal to many intents , as if he had been a purchaser ; and therefore , he that cannot according to the rules of descent derive his succession to him , who was last actually seized , though he might have derived his succession to some precedent ancestor shall not inherit . and hence it is , that where lands descend to the eldest son from the father , and the son enters and dies without issue , his sister of the whole blood shall inherit as heir to the brother , and not the younger son of the half blood , because he cannot be heir to the brother of the half blood. but if the eldest son had survived the father , and died before entry , the youngest son should inherit as heir to the father and not the sister , because he is heir to father , that was last actually seized . and hence it is , that though the uncle is preferred before the father in descent to the son ; yet if the uncle enter after the death of the son , and die without issue , the father shall inherit the uncle , quia seisina sacit stirpem . th rule , that whosoever derives a title to any land , must be of the blood of him that first purchased it . and this is the reason why , if the son purchase lands and dies without issue , it shall descend to the heirs of the part of his father , and if he hath none , then to the heirs of the part of his mother , because tho' the son hath both the blood of the father and of the mother in him , yet he is of the blood of the mother , and the consanguinei of the mother are consanguinei cognati of the son. and of the other side , if the father had purchased the land , and it had descended to the son , and the son had died without issue , without any heir of the part of his father , it should never have descended in the line of his mother , but escheated , for though the consanguinei of the mother were consanguinei to the son , yet they were not of consanguinity to the father , who was the purchaser . but if there had been none of the blood of the grandfather , yet it might have resorted to the line of the grandmother , because her consanguinei were as well of the blood of the father as the mothers consanguinity is of the blood of the son. and consequently also , if the grandfather had purchased lands , and it had descended from him to the father , and from him to the son , if the son had entered and died without issue , his fathers brothers or sisters , or their descendants , or for want of them , his grandfathers brothers or sisters , or their descendants , or for want of them , his great grandfathers brothers or sisters , or their descendants , or for want of them his great grandmothers , brothers or sisters , or their descendants might have inherited ; for the consanguinity of the great grandmother , was of the consanguinity of the grandfather , but none of the line of the mother or grandmother , ( viz. ) the grandfathers wife should have inherited , for that they were not of the blood of the first purchaser . and the same rule è converso holds in purchases in the line of the mother or grandmother , they shall always keep in the same line , wherein the first purchaser settled them . but it is not necessary , that he that inherits be always heir to the purchaser , but it sufficeth if he be of his blood , and heir to him who was last seised . the father purchaseth lands , and it descends to his son who dies without issue , it shall never descend to the heir of the part of the sons mother ; but if the sons grandmother hath a brother , and the sons great grandmother hath a brother , and there is no other kindred , it shall descend to the grandmothers brother ; and yet , if the father had died without issue , his grandmothers brother should have been preferred before his mothers brother , because the former was heir of the part of his father , though by a female , and the latter was heir of the part of his mother . but where the son is once seised , and dies without issue , his grandmothers brother is to him heir of the part of his father , and being nearer than his great grandmothers brother , is preferred in descent . but this is always intended , so long as the line of the descent is not broken , for if the son alien those lands , and then repurchase them again in fee ; now the rules of descent hold as if he had been the original purchaser , and that it had never been in the line of the father or mother . th rule , in succession , as well in the line descending , transversal or ascending , the line that is first derived from a male root , hath always the preference . a. hath issue two sons , b. and c. b. hath issue a son and a daughter , d. and e. d. the son hath issue a daughter , f. and e. the daughter hath issue a son , g. ● . nor any of his descendants shall not inherit so long as there are any descendants from d. and e. and e. the daughter , nor none of her descendants shall inherit , so long as there are descendants from d. the son , whether they be male or female . in descents , collateral as brothers and sisters , the same instance applied evideceth the conclusion . but in successions in the line ascending , there must be a fuller explanation , because it is darker and more obscure ; i shall therefore set forth the whole method of transversal , ascending , descents in these ensuing rules . st rule , if the son purchaseth lands in fee-simple , and dies without issue , those of the male line ascending usque in infinitum shall be preferred in the descent according to their proximity of degree to the son. therefore the fathers brothers or sisters , or their descendants shall be preferred before the brothers of the grandfather and their descendants . and again , if the father had no brothers nor sisters , the grandfathers brothers and their descendants , and for want of brothers , the grandfathers sisters , and their descendants should be preferred before the brothers of the great grandfather . for although by the law of england the father nor grandfather cannot immediately inherit the son , yet the direction of the descent to the collateral line ascending , is as much as if the father or grandfather had been by law inheritable , and therefore as in case the father had been inheritable , he should have inherited the son before the grandfather , and the grandfather before the great grandfather , and consequently if the father had inherited and died without issue , his eldest brother and his descendants should have inherited before the younger brother , and his descendants , and if he had no brothers but sisters , his sisters and their descendants should inherit before his uncles , or the grandfathers brothers , and their descendants , so though the law of england exclude the father from inheriting , it substitutes , and directs the descent as it should have been , if the father had inherited , viz. le ts in those first that are in the next degree to him . d rule is this , that the line of the part of the mother shall never inherit , as long as there are any though never so remote of the line of the part of the father ; and therefore , though the mother hath a brother , yet if the atavus or atavia of the father hath a brother or sister , he and she shall be preferred and exclude the mothers brother though he is much nearer . d rule , but yet farther . the male line of the part of the father descending , shall in oeternum exclude the female line of the part of the father ascending , and therefore in the case proposed , the son purchasing lands and dying without issue , the sister of the father , grandfather or great grandfather , and so in infinitum shall be preferred before the fathers mothers brother , though the fathers mothers brother be a male , and the fathers grandfathers sister be a female , and more remote , because it is in the male line , which is more worthy than the female line , though even the female line be of the blood of the father . th rule , but as in the male line ascending , the more near is preferred in the descent , before the remote ; so in the female line descending , so it be of the blood of the father , the more near is preferred before the remote . the son therefore purchaseth lands and dies without issue , the father , grandfather , and great grandfather , and so upward , all the male line are dead without brother or sister , or any descending from them , but the fathers mother hath a sister or brother , and also the father's grandmother hath a brother , and likewise the fathers great grand-mother hath a brother ; it is true , all these are of the blood of the father , and the very remotest of these shall exclude the sons mothers brother ; and it is likewise true , that the great grand-mothers blood hath passed through more males of the fathers blood , than the blood of the grand-mother , or mother of the father , but in this case the fathers mothers sister shall be preferred before the fathers grand-mothers brother , or great grand-mothers brother , because they are all in the female line , viz. cognati , and the fathers mothers sister is the nearest , and therefore shall have the preference , as well as in the male line ascending the fathers brother or sister , shall be preferred before the grand-fathers brother . th rule , and yet in the last case , where the son purchaseth lands and dies without issue , and without heir of the part of his grand-father , the land should bescend to his grand-mothers brother or sister , as heir of the part of the father ; yet , if the father had purchased this land and died , and it descended to his son who died without issue , the lands should not have descended to his fathers mothers brother or sister , for the reason given in the eighth rule , but for want of brothers or sisters of the grand-father , great grand-father , and so upward in the male ascending line , it should descend to the fathers grand-mothers brother or sister , which is heir of the part of the father , who should be preferred before the fathers mothers brother , which was in truth the heir of the part of the mother of the purchaser , though the next heir of the part of the father of him that last died seized . and therefore , as if the father who was the purchaser had died without issue , the heirs of the part of his father , whether of the male or female line , should have been preferred before the heir of the part of the mother ; so the son that stands now in the place of his father , and inherits to him primarily in his fathers line dying without issue , the same devolution and hereditary succession , should have been as if his father had immediately died without issue , which should have been to his grandmothers brother as heir of the part of the father , though by the female line , and not to his mothers brother , which was only heir of the part of his mother , and not to take till his fathers fine , as well female as male was spent . th rule , if the son purchase lands and dies without issue , and it descends to any heir of the part of the father , and then the line of the father ( after entry and possession ) fail , it shall never resort to the line of the mother , tho' in the first instance , or first descent from the son , it might have descended to the heir of the part of the mother : for now by this descent and seisin , it is lodged in the fathers line , to whom the heir of the part of the mother can never derive a title as heir , but it shall rather escheat . but if the heir of the part of the father had not entered , but then that line had failed , it might have descended to the heir of the part of the mother , as heir to the son , to whom immediately for want of heirs of the part of the father it might have descended . th rule , and upon the same reason , if it had once descended to the heir of the part of the father of the grand-fathers line , and that heir had entered , it should never descend to the heir of the part of the father of the grand-mothers line , because the line of the grand-mother was not of blood or consanguinity to the line of the grandfathers side . th rule , if for default of heirs of the purchaser of the part of the father , the lands descend to the line of the mother , the heirs of the mother on the part of her fathers side , shall be preferred in succession before her heirs of the part of her mothers side , because they are the more worthy . a great part of these differences are easily to be collected out of the resolutions in the case of clare versus brooke , alias cobham . and thus the law stands in point of descents , or hereditary succession in england at this day , and for above four hundred years past . finis . a scheme of pedigrees : and also , the degrees of parentage and consanguínity . adgnati ex parts patris . cousins on the part of the father , the more worthy in descents , tho' farther remote . recta linea : the right line . cognati ex parte matris . cousins on the part of the mother , the less worthy in descents , tho' nearer of kin. linea transversalis seu collateralis the side line . linea transver salis , seu collateralis the side line .   abpatruus magnus . the great uncles grand-father on the fathers side . tritavus . the great grand-fathers great grand-father . tritavia . the great grand-fathers great grand-mother . abavunculus . the great uncles grand-father on the mothers side .   abamita magna . the great uncles grand-mother on the fathers side . attavus . the great grand-fathers grand-father . attavia . the great grand-fathers grand-mother . abmatertera magna . the great uncles grand-mother on the mothers side . propatruus magnus . the great uncles father on the fathers side . abavus . the great grand-fathers father . abavia . the great grand-fathers mother . proavunculus magnus . the great uncles father on the mothers side . proamita magna . the great uncles mother on the fathers side . proavus . the great grand-father . proavia . the great grand-mother . promatertera magna . the great uncles mother on the mothers side . patruus magnus . the great uncle on the fathers side . avus . the grand-father . avia . the grand-mother . avunculus magnus . the great uncle on the mothers side . amita magna . the great aunt on the fathers side . pater . father . mater . mother . matertera magna . the great aunt on the mothers side . patruus . the uncle or fathers brothers . linea recta ascendens . amita . the aunt or fathers sister . the right line ascending . matertera . the aunt or mothers sister . frater . a brother . propositus . linea recta descendent . the right line descending . frater , a brother . semi germanus frater , brother of one father and several mothers . uterinus frater , brother of one mother and several fathers . soror , sister . soror . sister . soror , sister . patrueles à patruo . sons or daughters , cousin germans on the fathers side . filius . son. filia . daughter . avunculini ab avunculo . sons or daughters , cousin germans on the mothers side .     amitini ab amita . sons or daughters , cousin germans on the fathers side . nepos linealis , the lineal nephew . neptis linealis . the lineal neece . materterini à matertera . sons or daughters , cousin germans on the mothers side .   pronepos linealis . the lineal nephew or neeces son. proneptis linealis . the lineal nephew or neeces daughter .   horum . of these . filius . the son. filia . the daughter right cousin germans . abnepos linealis . the grand-son of the lineal nephew or neece . abneptis linealis . the grand-daughter of the lineal nephew or neece . horum . of these . filius . the son. filia . the daughter , right cousin germans . eorum . of these . nepos collateralis . the collateral nephew . neptis collateralis . the collaral niece . atnepos linealis . the great grand-son of the lineal nephew or neece . atneptis linealis . the great grand-daughter of the lineal nephew or neece . eorum . of these . nepos collateralis . the collateral nephew . neptis collateralis . the collateral neece .   eorundem . of these . pronepos collateralis . the collateral nephews son. proneptis collateralis . the collateral nephews daughter . trinepos linealis . the great great grand-son of the lineal nephew or neece . trineptis linealis . the great great grand-daughter of the lineal nephew or neece . eorundem . of these . pronepos collateralis . the collateral nephews son. proneptis collateralis . the collateral nephews daughter . et sic in infinitum . et sic infinitum .   et sic in infinitum . et sic in infinitum . notes, typically marginal, from the original text notes for div a -e adgnati , quasi 〈◊〉 patre congeniti . cognati 〈…〉 parte 〈◊〉 〈…〉 patre an . 〈◊〉 〈◊〉 , quasi 〈…〉 . avunculus . the uncle or mothers brother . avunculus quasi 〈◊〉 minor . amita , quasi à 〈◊〉 tertia . matertera quasi m●●ltera . frater , quasi 〈◊〉 alter . semi germani fratres , quasi ex 〈◊〉 patre & separalibus ma●●ribus nati . 〈◊〉 , quasi 〈◊〉 orta ●liversa . uterini 〈…〉 utero . fra●tes 〈◊〉 separalibus patribus ●●lius , filia . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i.e. ab amore ●arantum . nepos , quasi 〈◊〉 post . the case of john lord lovelace baron of hurley. approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing c d estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the case of john lord lovelace baron of hurley. lovelace, john lovelace, baron, ?- . sheet ([ ] p.). s.n., [s.l. : ] date of publication suggested by the bodleian library. reproduction of original in the bodleian library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng lovelace, john lovelace, -- baron, ?- -- finance, personal. finance, personal -- england -- early works to . inheritance and succession -- england -- early works to . broadsides -- england -- th century. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion the case of john lord lovelace baron of hurley . richard late lord lovelace his grandfather was seized in fee of the manor of hurley in the county of berks , and divers other lands in berks and wilts ; and of the manor of water-eaton in com. oxon. and sells the same to john late lord lovelace his father for life , with remainder to his st . d . d. and every other son successively entail , which son the now lord lovelace is . remainder to his own right heirs in fee. and gives a power to john his son the late lord lovelace deceased , to make a jointure of water-eaton , which he did accordingly execute ; and anne lady dowager lovelace his widow now enjoys it . and also left a power in him to charge the same manor of water-eaton , and some farms in hurley , with portions for younger children ; which he accordingly did : but these portions are all paid , but only part of the portion of dorothy now wife of henry drax esq john now lord lovelace marries with martha the eldest daughter and one of the co-heirs of sir edmund pye knight and baronet deceased ; and before marriage by articles , his father agrees to settle the manors of hurley , and water-eaton on his issue male entail , and in michaelmas term his father levied a fine , and in hillary term following john now lord lovelace levied a fine , and suffered a common recovery , and so barred all the estates tail and remainder before that time . and by indenture dated st . of february between the now lord lovelace , and his wife of the st . part , john late lord lovelace his father of the d . part , sir edmund pye and sir william walter of the d. part , and christopher cratford and george shipwey gent. of the th . part , declare the use of the said fines and recovery to be as to part of hurley , to the use of john now lord lovelace for life . remainder to sir edmund pye and sir william walter and their heirs , during the life of john now lord lovelace to support contingent uses . remainder to martha his wife for joynture . remainder to his st . d . d. and every other son by martha his wife successively entail . remainder to the right heirs of john now lord lovelace in fee , chargeable with l. fo● 〈…〉 aughters portions , in case of failer of issue males ; and as to the residue of 〈◊〉 and all water-eaton , to john late lord lovelace for life . remaind●● 〈◊〉 john now lord lovelace for life . remaind●● 〈◊〉 edmumd pye and sir walter and their heirs , during the life 〈…〉 ow lor● lovelace to support contingent uses . remainder to ● is st . d . d. and every other son by martha his wife successively 〈…〉 . remainder to the heirs of john now lord lovelace in fee. john late lord lovelace his father , in the late rebellion being only tenant for life , was under sequestratien , and contracted very many great debts to the value of l. and upwards by his sufferings for his loyalty . john now lord lovelace joyns with his father in the sale of bluntsdon in wilts of the value of l. per annum , and divers other lands in berks , to the value of l. and upwards , in the whole , and joyned with his father in other reall securities of the land settled upon him entail . the manor of water-eaton above l. per annum almost a moiety of his paternal estate , 〈◊〉 now in joynture to his mother . the manor of bradenham the greatest part of his wives fortune , is in joynture to the lady pye her mother . john now lord lovelace made an absolute agreement by indenture with henry drax esq for the remainder of his sisters portion unpaid , to accept l. by l. per annum after his mothers death , to be paid out of water-eaton in six years , that his mother might enjoy his joynture peaceably . john now lord lovelace hath no son living ; but only three daughters , and hath had no child in seven years last past , and having contracted several debts to the value of l. prays an act. to confirm the deed of the st . of february for his wives joynture , and to charge the lands charged with l. for his daughters portions , with l. more for advance of his daughters portions , in case of failer of issue male by his now wife . to ●●●ble him to raise l. fo● payment of his just debts contracted , out of those lands not in joynture to his wife ; nor chargeable with his daughters portions in hurley , and out of the reversion of water-eaton expectant after his mothers death , nevertheless subject to the payment of his sisters portions by annual payments as aforesaid , and that the same security given for the same portion to mr. drax , may be confirmed according to his agreement mentioned in the indenture of the th . of october . to his grace, henry, duke of norfolk, earl marshal of england humbly presented. percy, james, - ? approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing p a estc r this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) to his grace, henry, duke of norfolk, earl marshal of england humbly presented. percy, james, - ? sheet ([ ] p.) s.n.], [london : . signed: james percy. caption title. place of publication from wing. dated at end: . copy torn at foot, affecting text. reproduction of the original in the bodleian library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng percy, james, - ? -- early works to . inheritance and succession -- england -- early works to . - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion to his grace , henry , duke of norfolk , earl marshal of england humbly presented . great sir , yesterday , being the last of september , . i presented the following brief to sir thomas , st. george garter , king at arms , and prayed audience thereof ; and he moderately directed me as he did once before that was , and is to pray your grace's order to them , and then i should have audience and speedy justice , for which i pray and remain , your grace's most humble servant , james percy . october the st . . a short account or breviate of james percy 's proceedings ; who immediately after the death of josceline percy , eleventh earl of northumberland , put in his claim : now this is prepared for council , to argue at a chapter to the obtaining a confirmation of this following descent and pedigree . when josceline percy died , may st . . james percy then entered his claim , to be the next heir-male of that family . . the aforesaid james percy applied himself to sir edward walker , then king at arms , first , by letters from ireland ; secondly , in person . the king 's most excellent majesty , upon his petition and claim , was graciously pleased to say , god forbid we should hinder an heir-male , and then did refer the matter to sir edward aforesaid , and sir john berkinhead , then master of request in waiting ; and they ordered the claimant to bring his council to them , who together advised him the said james to claim under sir richard percy , and said , if he was not the right , yet would it be a means to find out the right great-grandfather of the claimant ; and further directed him to travel the northern circuit with the judges , to find out kindred . . at the claimant's first appearance in england , he found that the heralds books had been borrowed , and that the matches of the percys had been rent out ; which wildernized the claimant , that he could not then find out his great-grandfather , sir ingelram percy , by reason the matches were not only rent out , but sir ingelram percy , ( who was the true father of those children preserved in hampires ) his name was also blotted out . . but since , at several tryals , he hath proved himself to be the son of henry percy of horton , who was the son of henry percy of pavenham , who was the son of sir ingelram percy , who was the son of henry percy , fifth earl of northumberland ; who was the great-great-grandfather of james percy , claimant to the earldom of northumberland , with all the honours mannours , preheminences , priviledges , percy 's fee and gaunt's fee , which of right belong , and are annexed to the title and name of percy , as by records . . now after above sixteen years pains , labour , and vast costs of suits at law ; and finding the law will not confirm pedigrees , by reason it is the proper work of the heralds , when the court of wards was in-power ; and when an heir-male claimed , he was sent forthwith to the heralds office ; and when the heralds had found out the pedigree , then the earl marshal of england confirmed his pedigree , and sent the claimant back to the court of wards , who by an inquisition , post mortem , put the heir-male immediately into possession . . the king left the claimant to the parliament . . the parliament left the cause to the law. . the law left the confirmation of the pedigree to the heralds . . when the heralds call a chapter , and confirm the pedigree , they will then put a stop to the claimant's further complaint . as king charles the second , the very day a month before he dy'd , and since king james the second and council have ordered the cause to proceed to a speedy issue ; to gratifie the law , equity and possibilities , it is necessary the pedigree should be confirmed first by a speedy chapter , for which the claimant earnestly prays . james percy . blazon of percy family the letter and brief was returned by mr. negus , his graces secretary , with this short answer ; said he , my lord saith , he must have directions from the parliament , or from one of the courts at westminster-hall . therefore i humbly pray your grace to command me before a chapter , where my council shall make it appear as followeth . . by king charles the second in council . . by king james the second in council . . the four courts have directed , and will not presume to take upon them to confirm pedigrees , because it is the heralds property : notwithstanding books of heraldry are no records , yet law and equity requires the assistance of pedigrees before they will inquire . and the cause is now before the parliament , therefore the pedigree ought to be confirmed first , to fit them for an inquiry or inquisition post mortem . printed 〈…〉 chapter-board on thursday the seventh of october . . to the honourable, the knights, citizens, and burgesses of the commons house of parliament the humble petition of ierom hawley esquire, for and on the behalfe of phillip sture an infant, the sonne and heire of tristram sture. hawley, jerome, b. or . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a stc . estc s this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) to the honourable, the knights, citizens, and burgesses of the commons house of parliament the humble petition of ierom hawley esquire, for and on the behalfe of phillip sture an infant, the sonne and heire of tristram sture. hawley, jerome, b. or . sheet ([ ] p.) w. jaggard, [london : ?] concerning a dispute between sture and sir miles fleetwood over inheritance--stc. imprint from stc. reproduction of original in the guildhall library, london, england. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng fleetwood, miles, d. -- early works to . inheritance and succession -- early works to . - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - john pas sampled and proofread - john pas text and markup reviewed and edited - pfs batch review (qc) and xml conversion to the honourable , the knights , citizens , and burgesses of the commons house of parliament . the humble petition of ierom hawley esquire , for and on the behalfe of phillip sture an infant , the sonne and heire of tristram sture . phillip sture . iohn sture . henry henry , who died without issue . frances a daughter . yeeres old . tristram phillip , six yeeres olde hvmbly sheweth , that phillip sture the common ancester , . eliz. vpon the marriage of iohn sture his son and heire , with elizabeth one of the daughters of sir robert denis , made a conueyance of his lands , whereof the greatest part he limited by that conueyance , to the heires males , some to the heyres of the body of iohn sture . and the rest he suffered to discend in fee-simple . this estate taile , hath bin found in foure seuerall succeeding offices , vpon the seuerall deaths of phillip sture , iohn sture , henry sture , & henry sture , wherof in the . first offices the deeds are found in hec verba . there are fifty leases , all reseruing rent to the heires males , whereof the first lease recites a power contained in the deed of intaile to make leases . yet sir miles fletwood , hauing gotten the wardship of frances the heire generall , and to aduance a marriage for his sonne after . yeeres peace , that is to say , hil. . iac. to draw into question this intaile against tristram then heire male , did so farre preuaile , as that hil. . iac. he obtained a decree . this decree hath these parts . . it doth direct a iury in matter of fact , and commandeth them to finde , that the most part of the lands limited to the heires male , did not passe by the conueyance . . it restraines a iury to finde otherwise then is thereby directed . . it inioynes the defendant from giuing of euidence vnto the iurie . . it forbids the commissioners to take any verdict offered by the iury , if it pursue not the directions of the decree . sir miles fletwood vpon this decree tooke forth three seuerall commissions , . martij , . iac. a iury was impannelled in the country , heard their euidence , were agreed for the heire male . sir miles fletwood , a iudiciall officer in the court , did prosecute this cause in person , and discouering the opinion of the iury , did publikely chide them , and with much importunity perswaded the iury to craue further time to consider of their euidence : and thereuppon at the instance of sir miles fletwood they were adiourned ouer vnto the next sessions . but in the meane time , sir miles got that iury to be discharged vpon a bare suggestion , that the iury was too meane to trie so great a matter : whereas m. thomas isacke the foreman , is a wise vnderstanding gentleman , and hath aboue . li. land per annum , and . of the rest of that iury , he that had least , was worth . li. in easter terme , . iac. a new iury of esquires and gentlemen was returned , in iuly . iac. they heard their euidence in the country ( sir miles stil prosecuting in person . ) but sir miles fletwood afterward perceiuing , that the iury had declared themselues to be against his pretended title , got that second iury likewise to be discharged , and a new iury of knights and esquires to be returned , who were enioyned to appeare at the barre . which iury accordingly appeared in easter terme , . iac. the heire male brought his witnesses out of deuon , & his councell to the barre . but none were heard , the iury was sent from the barre , and charged to find according to the decree . this matter being notorious to the country , the iury returned answer , that the decree alone gaue their consciences no satisfaction , & vnlesse they might receiue euidence , they could finde no office . whereupon after . or . dayes attendance , they were adiourned ouer til michaelmas terme following . no. . they appeared againe at the barre , continued still of the same minde , were bound to appeare de die in diem , were examined vpon interrogatories , were threatned with fines and imprisonment , were continued so from day to day , aboue . weekes , and then m. hingston dying in that seruice , the rest of the iury were discharged . by this time sir miles fletwood did perceiue , that able and vnderstanding men were not for his purpose ; and therefore it was deuised , that a meaner iury would be found more tractable , and thereupon a fourth iury was returned , but that was so meane , as that vpon the commissioners certificate , . of them were discharged for insufficiency , and . others put into their roomes . this iury was often summoned , but the example of the precedent iury so terrified them , as that so long as there was any order to force them vp to the bar , they could neuer be drawne to appeare : but that order being discontinued , the iury presently appeared , were sworne and charged in the country : the heire-male brought his witnesses and councell ; pressed the commissioners to proceed , but the councell for sir miles fletwood pretended they were not ready , and therefore desired , that the iurie might be discontinued , which vpon their motion was done accordingly . this iury being thus discharged , sir miles inuented a new proiect , got an order for the resummoning of the same iury againe , drew paper draughts of such offices as he desired to be found , procured the court to signe those paper draughts , and by order to giue directions vnto the commissioners , not onely to fine the iury , but likewise to binde them ouer to the barre , if they refused to finde the said offices . depending this iury , the heire male was a sutor to the court to review the decree , & vpon a long suit , and many daies hearing in court , by the honorable iustice of the now master , the heire male was set at liberty from that decree . onely this inconuenience still rests vpon the heire male , that there is a sixt iury returned , and by the solicitation of s. miles they are enioyned to appeare at the bar , there to heare their euidence . this course is conceiued to be , . a great taxation to the country , to draw iurors to london , almost . miles from their dwellings , to finde offices . . a great mischiefe to the heire male . for by this deuice , he shall lose the benefit of his witnesses , they being many in number , and some of them blinde and very old , and cannot be brought to london , beside the great charge hee hath already sustayned , amounting to . li. by meanes of this vexation . sir miles fletwood hath bin finding of an office now full . yeares and more . he hath had . seuerall commissions , and . seuerall iuries . those iuries haue attended aboue . seuerall adiournments . the wards rents are sequestred . his maiestie is kept by these suits , from the composition and benefit of wardship . therefore it is humbly prayed , that by the wisedome of this honourable parliament , some prouision may be made : . that the conscience of iurors be not from henceforth restrained in questions of fact . . that the subiect may be at liberty to giue euidence . . that no iury be drawne to the barre , out of the proper countie to finde any office . . that no office be an informer in the same court. 〈…〉 the case of thomas lord fairfax, and katherine his wife; and john peshall esquire, and charlotte his wife fairfax, thomas fairfax, baron, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing f b estc r this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the case of thomas lord fairfax, and katherine his wife; and john peshall esquire, and charlotte his wife fairfax, thomas fairfax, baron, - . sheet ([ ] p.) s.n., [london : ] imprint from wing. reproduction of the original at the bodleian library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng inheritance and succession -- england -- early works to . - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - emma (leeson) huber sampled and proofread - emma (leeson) huber text and markup reviewed and edited - pfs batch review (qc) and xml conversion the case of thomas lord fairfax , and katherine his wife ; and john peshall esquire , and charlotte his wife . thomas late lord culpeper , by indentures dated ( as in the margent ) settles his estate on divers persons therein named to the use of himself for life , and after for the benefit of several persons for whom he had respect , and took himself to be obliged to provide for , amongst others , for the raising of three thousand pounds portion for charlotte , now the wife of the said john peshall , payable at her attainment of the age of one and twenty , or day of marriage . that by the said deed , there are divers estates and limitations made , and granted to and for the benefit of the said lady katherine , subject to the several charges by the said deed created , and amongst others for the said l. note , in this settlement a power of revocation is reserved to the said thomas lord culpeper by will or deed , to alter , change , or make void any of the estates , uses or trusts ; and the reversion in fee is limited to the said thomas lord culpeper and his heirs . thomas lord culpeper makes his will and confirms the said settlement , and gives to the said charlotte the reversion of some farms in the isle of wight , and to the heirs of her body ; and for want of such , to his own right heirs ; and soon after the said thomas lord culpeper dies . thomas lord fairfax marries the said lady katherine , who was sole daughter and heir of thomas lord culpeper ; and finding by the said deed and will a considerable part of the estate was to go from his lady and her heirs , and what was to come to her was charged with so considerable a sum as l. to the said charlotte , and several other great payments ; endeavoured to set aside , and avoid the said deed and will , or the effect thereof ; and not only attempted it by suits in the ordinary courts of law , but by a bill in parliament without success . whereupon , the said lord fairfax finding he could not prevail against the said deed of settlement and will , did refer the matter in difference between him and the lady katherine his wife , and the said john peshall , and charlotte his wife , to several honourable and worthy persons , who upon examining into the same , made an agreement betwixt the parties , that the said lord fairfax should pay unto the said john peshall l. and were of opinion , that it was necessary to apply to the parliament for an act , for the more easie and better raising the money charged on the estate for the said charlotte , and for performing the agreement in all its parts . that accordingly a bill was prepared and brought into the honourable house of commons , who referred it to a committee ; and the right honourable john , now lord culpeper , petitioned against the passing of the said bill , and was heard by his counsel before the said committee , who having maturely considered of the matter , passeth the bill ; and now the said lord hath petitioned to be heard at the bar of the house before the bill do pass . the said lord surmizes by his petition , that there were several settlements made in the family , by which some estate is limited to him ; he produced no such , nor did make it credible on any reasonable grounds . but the said lord alleadges , that the committee ordered the lord fairfax to produce a deed of settlement of the estate in : and he produced a pretended copy . the lord fairfax produced all he had , which was a copy : but now one part of that deed is obtained and ready to be produced , which will justifie the copy produced to the committee to be true ; and that my lord culpeper can claim nothing by colour of that settlement , the estate being thereby limited to the heirs males of thomas lord culpeper by margaret his wife ; and for want of such , to thomas lord culpeper and his heirs for ever . as for the settlement alledged to be made on the marriage of alexander culpeper , elder brother to lord thomas , and the present lord john ; it does not stand to common reason there should ever be any such settlement , and upon strict search no such writing can be found : and for that john lord culpeper ▪ father of the late lord thomas , and the petitioner , did out-live his son alexander , and was seized in the fee-simple of his estate at his death ; and by his last will charges and devises his estate as a fee-simple to his eldest son thomas , to dispose of as he thought fit . as to the pretence , that my lord culpeper could prove a suppression or concealment of deeds , if my lord fairfaix would wave his priviledge ; 't is very surprizing to find it in the petition , when no evidence thereof was offered at the committee ; and tho' the said lord culpeper did ask my lord fairfax once to wave his priviledge , he never would say to what end , nor did my lord fairfax deny it . 't is likewise alleadged , that thomas lord culpeper was indebted to the said petitioner in l. and that his estate is chargable with the petitioners just debt in equity . 't is supposed , that matter ( if lookt into ) would prove an utter mistake , both as to the debt and remedy : for that the lands mentioned in the bill are not liable to pay the same , as will appear by the last will of the petitioner's father . but besides , in the bill now before the house , there is not only a general saving clause of all persons right ; but 't is consented , the said lord culpeper shall have a particular saving of all such right , title or claim , as he hath , can or may have in law or equity , to all or any part of the estate . note , this bill doth not destroy or abridge , or in any sort alter or prejudice any ancient settlement , if there was any such ; nor concern any person , but such as were concerned in the said reference and agreement . note , that great part of the estate setled in . was of thomas lord culpeper's purchase , and with his wives , his then and yet living wife margarets portion . note , and that thomas lord culpeper in . suffered a recovery , and by deed declared the use to himself and his heirs in fee. note also , that the petitioner , during the contest between the lord fairfaix and john peshall , and others , touching the validity of the said settlement of the th of october , and the said lord thomas's will , never set on foot any pretence for himself , or would assist my lord fairfax . note , the petitioners supposed debt is of above thirty years standing , and his demand which should arise on the fancied settlement is eight years old , and no suit hath been commenced for either . wherefore 't is hoped , this honourable house will not retard the passing this bill , but look on the objections thereto as proceeding from the memory of some vnkindnesses the petitioner imagines were done to him by his late brother ; in which the said lord fairfax and his lady , and the said mr. peshall , were no ways concerned , and therefore can deserve no blame or resentment . notes, typically marginal, from the original text notes for div a -e & octob. jac. . jan. . tracts written by john selden of the inner-temple, esquire ; the first entituled, jani anglorvm facies altera, rendred into english, with large notes thereupon, by redman westcot, gent. ; the second, england's epinomis ; the third, of the original of ecclesiastical jurisdictions of testaments ; the fourth, of the disposition or administration of intestates goods ; the three last never before extant. selections. selden, john, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing s estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) tracts written by john selden of the inner-temple, esquire ; the first entituled, jani anglorvm facies altera, rendred into english, with large notes thereupon, by redman westcot, gent. ; the second, england's epinomis ; the third, of the original of ecclesiastical jurisdictions of testaments ; the fourth, of the disposition or administration of intestates goods ; the three last never before extant. selections. selden, john, - . littleton, adam, - . white, robert, - . selden, john, - . jani anglorum facies altera. english. selden, john, - . england's epinomis. selden, john, - . of the original of ecclesiastical jurisdiction of testaments. [ ], , [ ], , [ ], p., [ ] leaf of plates : port. printed for thomas basset ... and richard chiswell ..., london : mdclxxxiii [ ] each part has special t.p. and separate paging. reel guide erroneously identifies this work as wing s a. engraved frontispiece portrait of the author signed: r: white sculpsit. error in paging: p. of second count misnumbered . errata: p. [ ] following p. [ ] of first grouping. reproduction of original in the duke university library. includes bibliographical references. the reverse or back-face of the english janus, to-wit, all that is met with in story concerning the common and statute-law of english britanny ... / written in latin by john selden ... ; and rendred into english by redman westcot, gent. london : printed for thomas basset, and richard chiswell, mdclxxxii [ ] -- england's epinomis / by john selden, esquire. london : printed for thomas basset ... and richard chiswell ..., mdclxxxiii [ ] -- two treatises written by john selden ... : the first, of the original ecclesiastical jurisdiction of testaments, the second, of the disposition or administration in intestates goods. london : printed for thomas basset ... and richard chiswell ... mdclxxxiii [ ]. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -- england -- history and criticism. probate law and practice -- england. ecclesiastical law -- england. inheritance and succession -- england. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - judith siefring sampled and proofread - judith siefring text and markup reviewed and edited - pfs batch review (qc) and xml conversion johannes seldenus . armig : tracts written by john selden of the inner-temple , esquire . the first entituled , jani anglorvm facies altera , rendred into english , with large notes thereupon , by redman westcot , gent. the second , england's epinomis . the third , of the original of ecclesiastical jurisdictions of testaments . the fourth , of the disposition or administration of intestates goods . the three last never before extant . london , printed for thomas basset at the george in fleet-street , and richard chiswell at the rose and crown in s. paul's church-yard . mdclxxxiii . the reverse or back-face of the english janus . to-wit , all that is met with in story concerning the common and statute-law of english britanny , from the first memoirs of the two nations , to the decease of king henry ii. set down and tackt together succinctly by way of narrative . designed , devoted and dedicated to the most illustrious the earl of salisbury . written in latin by john selden of salvinton , student of the inner-temple in london ; and rendred into english by redman westcot , gent. haec facies populum spectat ; at illa larem . london , printed for thomas basset , and richard chiswell . mdclxxxii . to the right honourable and truly noble lord , robert earl of salisbury , viscount cranborn , baron cecil of essenden , knight of the illustrious order of the garter , lord high treasurer of england , master of the court of wards , and privy counsellor to his most excellent majesty , james , king of great britain , france and ireland , heartily according to his high desert , i devote and dedicate , and as it were with consecrated flowr , and crackling grain of salt , i offer up in sacrifice . i am not in condition to do it with a costly victim , or a full censer . great sir , deign with favour to receive these scraps of collection ; relating intirely , what they are , and as far as the present age may be supposed to be concerned in ancient stories and customes , to the english-british state and government ; and so far forth to your most honoured name . which name of yours , whilest i , one of the lowermost bench , do with dazzled eye-sight look upon ( most noble lord , and great support of your country ) i devoutly lay down upon its altar this small earnest and pledge of my obedience and duty . the translator's preface to the reader . reader , thou canst not be such a stranger to thy own countrey , as to need my commendation of the learned , worthy and famous author of these following sheets ; or that i should tell thee , what a scholar , a philologer , a humanist , a linguist , a lawyer , a critick , an antiquary , and ( which proves him an absolute master of all these and many other knowledges ) what a writer , the great selden was . since it is liberally acknowledged by every body , that knows any thing ( not only at home , but abroad also among foreigners ) that europe seldom hath brought forth his fellow for exquisite endowments of nature , attainments of study , and accomplishments of ingenuity , sagacity and industry . and indeed , to save me the labour of saying any more concerning this non-pareil in all kinds of learning , his own works , which are now under a review , and will e're long be made publick in several volumes , will sufficiently speak his character , and be a more prevailing argument to indear him to thy good opinion and firm acquaintance , than mine or any other words can . my business now is only to give thee some account of the author's design in this little treatise , and of those measures i took in translating him , that is , in restoring him to his own native language ; though his great genius had made the latin and several other tongues , as natural and familiar to himself , as the english was . to speak first of the author , i do take this piece to have been one of his first essays , if not the very first ; wherein he launched into the world , and did not so much try the judgement , as deservedly gain the approbation of the learned : which was certainly one reason , why , though the whole matter of the book be of an english complexion and concern , yet he thought fit to put it forth in a latin dress . that this was his first specimen , or at least one of the first , i gather from the time of his writing it , viz. in the six and twentieth year of his age ; when i suppose he was not of any very long standing in the temple ; i mean , in all likelihood , whilst he was on this side the bar. for having fraught himself with all kind of learning , which the university could afford him ( which could be , we must imagine , no small time neither ; as i may be allowed to guess from that passage of his in this book , where he so affectionately recognizeth his duty and gratitude to his dear mother oxford ; who , if she had no other antiquity to boast of , is and ever will be famous for this her scholar , our great antiquary ; who hath also such a monument to be seen in her publick library , as will make her glory and his memory ever to flourish ) i say , having after some competent time taken leave of academical institutions , and being now engaged into the study of law , he thought he could not do his profession a better service , than by looking back into former times , and making a faithful collection of what might be pertinent and useful , to bring down , along through all changes and vicissitudes of state , the light and strength , the evidence and reputation of old institutes and precedents to our present establishments under our gracious and happy monarchy . may it , as it is in its constitution to the english people gracious ; so be ever in its success to it self , and consequently to us all , happy ! here then thou wilt find the rights of government through all ages , so far as our histories will help us ; here thou wilt see , from the first , our king setled in his just power , even in his ecclesiastical jurisdiction against the papal usurpation ; one shrewd instance whereof is , the forbidding appeals to the pope , at such a time when the popish religion was at its zenith in this island ; that is , when people in all probability were most ignorant . here thou wilt easily be brought to acknowledge the antiquity and usefulness of parliaments ( though under other names till after the conquest ) when all the barons , that is , as that title did at first import , all lords of mannors , all men of estate assembled together for the determination of publick affairs : which usage , because it produced too numerous and cumbersome a confluence , was afterwards for better convenience retrenched into a popular election by the kings writ to chuse some of the chiefest to act for all the rest . and sure enough , if we in duty keep up the royal prerogative , and our kings , as ever they have done , and ever , i hope , will , in grace and clemency oblige the peoples consent in their representatives ; we shall alwayes have such laws , such a government , such a correspondence betwixt prince and subjects , as must ( according to the rules of humane prudence , adding our piety to it ) make this kingdom of great britanny ( maugre the malice of the devil and his agents whatever , jesuits or fanaticks ) a flourishing and impregnable kingdom . having said this in general of the author's design , i shall not descend to particulars , which i leave to thy self , r●ader , to find out , in the perusal , that may be of good use and great consequence to the publick ; but fearing , thou maist think i am so much taken up with the author , that i have forgot my self , i have two or three words to speak of that sorry subject , before i leave thee . as to the translator ; i confess , it is no great credit for any one to appear in that figure ; a remark , which i have learn't from one , who hath translated another excellent piece of this noble author , ( noble i call him , sith nobility is rais'd by parts and merits , no less than continued by birth and descent ) it was his mare clausum , wherein he , i spoke of , hath acquitted himself very well , abating for his villanous dedication to the rump-parliament , which was then setting up for a republick ; in which dedication of his , he hath vilely and like himself ( i speak in charity , as to his interest , i mean , not his judgement or conscience at least , if there were any ) aspersed the royal family with weakness and collusion , to have lower'd the british renown . i am bid by him , who puts this into thy hands , to tell thee , that when he was embark'd into this employ ; whatever it was , upon the coasting of it over , he was surprized to find , he had undertaken such a difficult and hazardous voyage , and did presently conclude , that none but a selden ( that is , a person of omnifarious reading ) was fit to be a selden's interpreter . for no other person , but one so qualified , can be master of his sense , master of his expression . his ordinary style , where he delivers himself plainest , is as to the matter of it , so full of historical and poetical allusions and as to the method ( and hath that of crabbed in it besides ) so intricate and perplex , that he seems , even where he pretends to teach and instruct , to have intended only to amuse and confound the reader . in very deed , it is such a style , as became a learned antiquary , which is to be antique and oracular ; that one would think , the very paper , he wrote upon , was made of the sibyll's old-worn sheets , and that his meaning could not be fisht out without the assistance of a delian diver . however the translator ( though so much inferiour to the undertaking , as to be almost unacquainted with some considerable parts of it ) did presume ( whether rightly or no , must be left to thy judgement ) that he was not utterly unfurnished with those skills and helps , which might make the work intelligible and acceptable even to plebeians . for though it was at first designed by the excellent author in his latin for such as were meerly lawyers and scholars ( they must be both , that mean to understand it as he wrote it ) yet now it being done into english , it was to be calculated to the meridian of common capacities and vulgar understandings . which end he hath , he hopes , in some good measure answered ; and in order to which end , he hath , to supply the defects of his translation , at the end of the book subjoyned some annotations , which may serve partly to clear the author's meaning , and partly to vindicate himself in the interpretation . he did think once to have affixt those annotations to the places they belong to ; but upon second and better thoughts , he consider'd , that the authors quotations would be enow of themselves to charge the margin with , and a further superfoetation would but cloy and surbate the reader ; though in the body of the work , there are up and down many explanations inserted , to excuse him from the trouble of having recourse to those notes , which are added out of pure necessity , and not from any vanity of ostentation , since the whole , if it had its due , might seem to require a perpetual comment . in the main , which is enough for a translator , be his author what he will , he doth assure thee , that the meanest subject of england may now read one of her greatest champions and writers ( for learned pens sometimes do as good and as great service as valiant swords do ) so understandingly , that he may edifie and learn , what duty and deference he ought to have for the best of governments . and now , reader , excuse me in a digression , and do not impute it as a levity to me , that i follow my grave author . it is my duty so to do ; it is my happiness , if i can : he doth not despair , now he appears in english , to have female-readers too , to court him so far at least as to peruse his translation , who hath so highly courted them with noble caresses in that chapter , wherein he hath so learnedly pleaded the excellencies and rights of that angelical sex , ( if angels have any sex ) to the abashment and overthrow of the salick law. to what purpose did the author write so much in their commendation , if they were not to know it ? which , if the poor translator hath any obligations upon the sex , he hopes they will own this as an addition : not to mention that other chapter of his , where , like a gentleman and a lawyer both , he maintains that freedom peculiar to our english ladies , and which with lawyers leave , i may call the courtesie of england , in receiving of salutes , against the censure of rudeness on the one hand , and the suspicion of wantonness on the other . though i must confess also , that some of his citations in that defence , are so free , that i thought fit rather to leave them as i found them , than by putting them into english , to expose the modesty of the sex. i have no more to say , reader , but to beg thy excuse , for any thing , wherein i may appear to have come short of the weighty and abstruse senses of our great and worthy author , and that i may detain thee no longer from his conversation , to bid thee farewell . the author's preface to the reader . and that the tutelar or guardian of my threshold may not entertain thee with unlucky or ill-boding terms , he doth freely be speak thee health and greeting , whoever thou art , dear reader . moreover , he is in the humour to declare both the occasion of drawing the first furrow of this enterprize , and also the model and frame of the whole work , what it is , finished and compleated . it is a long while ago , considering how young a man i am , since from the first i have made it my hearty wish , that the ancient original and procedure of our civil law might more fairly and clearly be made out ; as far , i mean , as the thing will bear , and as what store we have of publick records affords assistance . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , for several men with several things are pleas'd , as said archilochus of old ; and i do own for my self , what seneca the declaimer saith , that i take pleasure in going back to studies of antiquity , and in looking behind me to our grand-sires better times . which , to say truth , they who do too much , slight , ardua dum m●tuunt , amittunt ver● viai . that is , whilst l●fty passes they do fear , through sloth they lose the certain tracks and paths of troth and , so may the muses alway favour me , they are such things as are — anteiqua , sepolta , vetusta , quai faciunt mores veterésque novosque tenentem moltarum veterum legum , divômque hominumque prudentem . — as saith another old latin poet ; that is , such stori●● as are antique , buried in rubbish , old and musty , which make one verst in customs old and new , and of laws , gods and men giving a view , render the careful student skill'd and trusty . some spare hours have been spent by me in reading over historians , chronologers , antiquaries , foreigners and our own countrey-men , those of ancient date and the more polite of the modern sort : those especially who seem'd to make out the quickest course to that goal and design i spoke of . i have carefully cull'd out whatsoever i met with , that lookt like the orders and decisions of praetors or lord chief justices , and whatsoever concerns the civil or prophane law. ( prophane i call that , which is not held by the religion of the church ; as sextus pompeius hath taught me . ) i did judge that there were a great many things in those writers worth the knowing , and which might deserve to be digested into a kind of volume according to order of chronology , i did in the first place advise , and took that special order with my self , that as to this undertaking , i might with the greater ease have my attendants ready at hand to wait upon my studies . i went about to give s●me closure and coment , such as it is , ( i. e. some method and connexion ) to the scattered and disjointed bulk , and i brought it to a conclusion ; and assoon as it came into my mind to publish it , i endeavoured according to that meanness , which it appears in , to finish it ( that i may make use of a mathematick term ) with its complement . i have set the model and frame upon a sure account ( not upon mine own credit neither , who am too apt to take on trust things suspected ) and in a compendious way : i have writ my self compendiously and succinctly ; i have transcribed out of others faithfully . i do on set purpose vouch the credit , i go upon , to be none of mine , but the authors , i have taken out of , that i may not be accused of false dealing by unskilful or careless readers . i have applyed my self not only to the meaning of the writers , or to their historical account , but even to the very words and syllables , which they spoke , and have inserted them printed in a different character ; those , i confess , unless it be from them of the middle age , many times sufficiently barbarous , that miserably want polishing , such as criti●ks cannot away with , and do very well agree with the records and reports of law , which we converse with . however i would not have thee disdain in the mean time brimful and wholsome draughts of liquor , because the bowl was not made in a potters shop of colias a place in athens , or in cold winter to slight a garment which is not made of attick wooll ; as plutarch hath admonished the hearers of philosophy . let young ladies speak finically with their golden flower-amours , and let them , who have store and leave at once , court the graces of words and beauties of expression . 't is true , the care of exact speaking , is a thing befits the muses , yet how the most abstruse mysteries even of the highest urania , of divinity it self , are laid open without it , the thomists , the scotists , and what other sects and parties of school-men there are , know well enough . and there are some others also , that think they know ; i mean the inquirers into heavenly calculations ( astrologers ) and the weather-wise-men ( almanack-makers ) who in good deed for the most part rely too much upon the trifling stories of their masters . now they , and not without good reason , have preferred the arab writers barbarously translated , and slovenly bonatus before julius firmicus and modern pontanus , as spruce as they are . these two may rather be termed grammarians , than astrologers . nor do aristotle's crabbed lectures of natural philosophy discourage interpreters or procure to themselves any discredit , by reason of the affected obscurity of speech , they are delivered in : and as to neatness of poetry , apollo himself hath been out-done by sappho , homer , hesiod . though the matter doth often surpass the workmanship ; yet who is there is so rigid or so fond a censurer , as to disparage and debase the matter upon the account of the workmanship ? which i would not have be said only of those passages , which i have brought into this piece out of those fore-mentioned authors , but also of the whole body of our common-law . i have , i hope , not unluckily begun with the very first inhabitants of this isle , as far as we can come to the knowledge of them . those authors , whom i have followed in the original of story , i have , as it was meet , set down and remark'd , adding the judgement and censure of the learned . afterward , besides caesar and tacitus there are but few that afford us any help , and that but in few things too . for the name of brittany was known but of late to the greeks , but of late to the romans ; and the britans were truly for a long while divided from all the world besides . but among foreigners the latter ages have enquired after them . i speak of strabo , pliny , ptolomy , others ; and a certain writer of asia , marcianus heracleotes , not y●t , that i know of , turned into latin , saith thus , albion the brittish isle hath in it thirty three nations , fifty nine remarkable cities ; and then he subjoyns other things concerning the number of rivers , promontories , havens and creeks or bays . i have stretched out this piece to the death of king henry the son of mawd the empress by jeoffrey the count of anger 's in france . in whose time , or near thereabout , are the first beginnings of our law , as our lawyers now account . there come in by the way richard called coeur de lion and king john ; but there is scarce any thing in that interim to our purpose . i have on purpose passed by mr. lambard's archaeonomia ( or antiquites of law ) without medling with it at all , only when some obvious accasion did sometimes suggest it for the explaining of what is set down by us . i have divided the whole into two books ; the first closes with the saxons ; the second begins with the norman conquest , the most famous aera or date of the english government in the reckonings of time . but however to refer the original of our english laws to that conquest ( as some make bold to do ) is a huge mistake ; forasmuch as they are of a far more ancient date . for it is a remark amongst statesmen , that new acquired empires , do run some hazard by attempting to make new laws : and the norman did warily provide against this danger , by bestowing upon the yielding conquered nation the requital of their ancient law : a requital , i say , but more , as it should seem , for shew than use ; and rather to curry favour with the people at the present , than in good deed for the advantage of the english name . wherein he in some measure followed well near the practice of alaricus , who having conquered the romans , and finding that they took it in dudgeon to be bound up by the laws of the goths , though in other things they were compliant enough , restored to them the roman laws , but by sly interpretations against the sense and meaning of the roman laws he drew these laws back again to the gothish . for the times on this side the normans entrance , are so full of new laws , especially such as belong to the right of tenancy or vassalage ; though other laws have been carefully enough kept up from the time of the saxons , and perhaps from an earlier date . for neither did the gliding decrees of that blazing-star , which appeared in the easter of that year , so well known for this victory , prognosticate , as the change of the kingdom ( a thing which astrologers affirm ) so the abolition of our laws ; and yet in some sense peradventure an alteration of them both ; at that rate , i mean , as jerom cardan writes , that the comet in the year . which appeared in aries ( to which sign , our island according to ptolomies doctrine is lyable ) under the north side of the milky way , being of a jovial , martial and mercurial force and efficacy , was the fore-teller or fore-runner of the change of religion ; which happened three years after in henry the eighth's time . but whatever may be thought in other cases , christianity is exempt from the laws and over-ruling power of the stars , and i do but too well perceive , that cardan's piety is wanting in this and in other instances , and particularly in casting our saviours nativity . and why do i too much besides my purpose , trouble my self about these things here ? go thy wayes to our janus , ( for thou canst hardly chuse but own him having two faces ) where to speak of our english brittish law ( 't is no treason i trow so to call it ) nobilitas nec origo latet , sed luce sequente vincitur . — that is , it 's noble rise doth not lye hid , but tight . attending makes it far more clear and bright . for , si nobilitas cunctis exordia pandit laudibus , atque omnes redeunt in semina causae . that is , if nobleness doth first commence all praise , and all things from their seeds do themselves raise . however it does not at all boast of its romulus's , its numa's , its decemviri , it s . books , it s . and . and . verses , and the like ; which having been digested long since ( as it were — non hos quaesitum munus in usus , that is , a boon not purchas'd for such use as this ) do far and near bear sway in courts of law throughout all europe ; yet is not the rise and original of our laws also less to be regarded ; nor is it perchance for distance of time further from iapetus than they . but go thy wayes , i say , and see that thou dost not undertake without reason and good advice , to fit any thing to the present age , otherwise than the changes , the repeals and cancelling parts of laws , and new emergencies and vicissitudes of affairs , which were frequent , will give thee leave . remember lucretius in this case alike as in others . quod fuit in pretio , fit nullo denique honore ; porrò aliud succedit , & è contemtibus exit , inque dies magis appetitur , floretque repertum laudibus , & miro'st mortaleis inter honore . that is , what was in price , at last hath no esteem ; whilst somewhat else starts up , and gains repute , and every day grows more in vogue and brute , and mortals strangely do it highly deem . according to what that other , and the greatest philosopher among the poets saith , multa dies , variusque labor mutabilis aevi rettulit in melius . — that is , time and the various toyl of changing age many things betters , and reforms the stage . and the greek sentence , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . for time to laws themselves gives law full oft . without a world of rubs in the way and slips or distances of years , i saw i was not able to put upon the work the face of a history , and to muster up all things that are wanting . very many things are so effaced by injury of time , several things have been lost through neglect , nor is the learned world under a small discontent , or at small variance by reason of this loss . these remains , which are left us , to be handled upon occasion , i have alwayes accounted pleasant researches : i , and perhaps one may say , that those learned pieces , which pomponius , rivallius , zasius , oldendorp , brissonius , and others , have published concerning the twelve tables , and the laws written upon oaken planks , upon elephants skins , and in former ages upon brass , are not of more use and advantage for the city spire in germany , than these collections may be for westminster-hall amongst us . we have said enough and to spare , concerning the model and frame of the work. for me now to beg the readers pardon , that i may speak a little concerning my self , seeing it was at my own choice , whether i would give him trouble or no , would be silly . if so be that any one shall shew himself more busie or pragmatical in these writings of mine , than becomes him ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , not knowing ( as we say ) a pig from a dog i would not have him ignorant , that i value it no more than a rush , to be lashed with the flouts of prattle-boxes or tittle-tatlers , and such creatures as carry the goddess nemesis on pickpack . nor does any one that is in his wits , when an ass kicks and flings at him to little or no purpose , regard an idle oafish affront so as to requite it . i paint upon my weather-boards averrunca , i. e. god forefend , ( as they did of old arse verse upon houses , to preserve them from fire . ) may intercedona , pilumnus , and deverra , drive away silvanus , and keep him off from doing this tender infant any harm . well! let ass●s and silly animals commend , find fault , tune their pipes , how they will : let the envious and ill natured with their sneerings , prate and talk ; let snotty nosed fellows and clowns , that feed upon cockle bread , appro●● what i write , or let them flout and fleer , or let them play jack of both sides ; it 's all fiddle faddle to me , nor would i put a straw between . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . brow-benders , making nose and chin to meet , with dangling beards like sacks down to your feet . ye rigid cato's and severe criticks , do ye take in good part , what i have done ; nor let me be altogether slighted , if by chance ye shall vouchsafe to look this way , nor with your skew looks fore-speak my harvest in the blade . i shall readily and willingly yield the conquest to him that fairly gets it , and rightfully corrects me . but whoever thou art of that sort of men , per meos fines & aprica rura lenis incedas , abeasque parvis aequus alumnis . o're my bounds and sunny plain take a gentle walk or twain ; then depart with friendly mind , to me and my lambkins kind . you , that are candid and courteous , know , that 't is a very hard matter to brighten things that are grown out of use , to furnish things obscure with light , to set off things that are disdained , with credit , to make things doubtful pass for probable , to assign to every thing it s own nature , and every thing to its own nature ; and that it is a very brave and gallant thing , as he sayes , for those that have not attained their design , yet to have endeavoured it ; when the will ( as we say ) is accepted for the deed. but i know too , that every cone or point of vision in the opticks differs from a right angle ; and i know how odious a thing a train or solemn procession is in the publick games . therefore , dear reader , i bid thee heartily farewel ; and with a fortunate endeavour , fetch out hence , what may make for thy turn . why do i delay all this while to let thee in ? 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . go thy wayes in , o'gods name . laudamus veteres , sed nostris utimur annis : mos tamen est aeque dignus uterque coli . we praise old times , but make use of our own ; and yet 't is fit they both alike be known . go in and welcome heartily ; and be not unkind to thy entertainer , from the inner temple london , decemb. . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . in laudem dignissimi authoris , & politioris literaturae candidati , carmen . cum jovis effoeti pallas foret orta cerebro , vagitus teneros virgo patrima dedit . accurrit , tacitéque novam subducere prolem tentat , & abstrusis abdere juno locis . jupiter ingenuam solerti indagine natam quaeritat , & celeri permeat astra pede ; stat , cerebrique tuam cernens , seldene , minervam in natae amplexus irruit ille tuae . atque suam credit ; parilique ab imagine formae illa fuit suavis , suavis & illa fuit . lisque foret , nisi quae quondam lucina fuisset , musarum testis turba novena fuit . quam cognata jovis tua casta minerva minervae est , cum tantum fallax lusit imago deum ? aliud . dum tuus ambiguâ janus , facieque biformi respicit antiqua , & posteriora videt : archivos themidis canos , monumentaque legum vindicat à veteri semi-sopita situ . hinc duplex te jane manet veterane corona , gratia canitie , posteritate decus . gulielmus bakerus oxon. astraeae brit . ultima caelicolûm terras astraea reliquit . tu tamen alma redi & terras astraea revise : astraea alma redi tuis britannis : et diva alma fave tuis britannis : et diva alma fove tuos britannos : et diva alma regas tuos britannos : cantemus tibi sic tui britanni : foelices nimium ô tui britanni : tu tandem alma redis divum postrema britannis : ultima coelicolûm terras astraea revisit . alma redi . sacro redolent altaria fumo et tibi sacratis ignibus . alma redi . alma redi . posuit liber hic primordia juris anglos quo poteris tu regere . alma redi . alma redi . tibi templa struit seldenus : at aram qui tibi nil potuit sanctius . alma redi . e. heyward . in epigraphen libri carmen . quisnam iò mussat ? posuisti enyo arma ; jam doctos iber haùt batavos marte turbat ; foedere jam britannus continet orbem . clusium audax quis reserat latentem ? falleris . diae themidis recludo intima . haec portâ meliùs feratâ pandit eanus . i. s. the contents of the chapters . book i. chap. i. the counterfeit berosus with the monk that put him forth , both censured . the story of samothes the first celtick king. the bounds of celtica . from samothes , say they , the britans and gauls were called samothei . for which diogenes laertius is falsly quoted ; the word in him , being semnothei , page . chap. ii. an account of the semnothei . why so called ; the opinion of h. stephen , and of the author . old heroes and philosophers went by the names of demy-gods . the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or venerable goddesses , the same as eumenides , dispensers of justice . and by plutarch and orpheus they are set for civil magistrates . judges in scripture so called elohim , i. e. gods. these semnai theai the same as deae matres in an old british inscription , p. chap. iii. one law of samothes out of basingstoke concerning the reckoning of time by nights . bodinus his censure of astrologers for otherwise computing their planetary hours . a brief account of some of samothes his successors , magus , sarron , druis , from whom the druids , &c. p. chap. iv. k. phranicus . years after samothes being to reside in pannonia , intrusts the druids with the government . in the mean time brutus , aeneas his grand-son , arrives and is owned king by the britans , and builds t●oynovant , i. e. london . dunvallo molmutius . years after is king , and makes laws concerning sanctuaries , roads or high-wayes and plow-lands . k. belin his son confirms those laws , and casts up four great cause-wayes through the island . a further account of molmutius . p. chap. v. a brief account of q. regent martia , and of merchenlage , whether so called from her , or from the mercians . annius again censured for a forger , and his berosus for a fabulous writer , p. chap. vi. the story of brutus canvast and taken to be a poetick fiction of the bards . jeoffry of monmouth's credit called in question . antiquaries at a loss in their judgements of these frivolous stories , p. chap. vii . what the trojan laws were , which brutus brought in . that concerning the eldest sons inheriting the whole estate , confuted . in the first times there were no positive laws ; yet mention made of them in some very ancient authors , notwithstanding a remark of some ancient writers to the contrary , p. chap. viii . an account of the druids out of caesar's commentaries , whence they were so called . their determining in point of law , and passing sentence in case of crime . their award binds all parties . their way of excommunicating or outlawing . they have a chief over them . how he is chosen . their priviledge and immunity , p. chap. ix . the menage of their schools without writing . on other occasions they might use the greek letters , as caesar saith , yet not have the language . the greek letters then were others than what they are now . these borrowed from the gauls , as those from the phoenicians . ceregy-drudion , or the druids stones in wales . this place of caesar's suspected . lipsius his judgement of the whole book , p. chap. x. the druids reckoning of time . an age consists of thirty years . what authors treat of the druids . their doctrines and customs savour of pythagoras and the cabbalists . they were the eldest philosophers and lawyers among the gentiles . some odd images of theirs in stone , in an abby near voitland , described , p. chap. xi . the britans and gauls had laws and customs much alike , and whence that came . some things common to them both , set down ; in relation to the breeding of their children , the marrying of their wives , the governing of their families , burning women that killed their husbands , and burning some servants with the dead master for company . together with some remarks of their publick government , p. chap. xii . women admitted to publick debates . a large commendation of the sex , together with a vindication of their fitness to govern ; against the salick law , made out by several examples of most nations , p. chap. xiii . their putting themselves under protection by going into great mens service . their coins of money , and their weighing of it . some sorts of flesh not lawful to be eaten by them , p. chap. xiv . community of wives among the britans , used formerly by other nations also . chalcondylas his mistake from our civil custom of saluting . a rėbuke of the foolish humour of jealousie , p. chap. xv. an account of the british state under the romans . claudius wins a battel , and returns to rome in triumph , and leaves a. plautius to order affairs . a colony is sent to maldon in essex , and to several other places . the nature of these colonies out of lipsius . julius agricola's government here in vespasian's time , p. chap. xvi . in commodus his time king lucy embraces the christian religion , and desires eleutherius then pope , to send him the roman laws . in stead of heathen priests , he makes three arch-bishops and twenty eight bishops . he endows the churches , and makes them sanctuaries . the manner of government in constantine's time , where ends the roman account . p. chap. xvii . the saxons are sent for in by vortigern against the scots and picts , who usurping the government , set up the heptarchy . the angles , jutes , frisons , all called saxons . an account of them and their laws , taken out of adam of bremen , p. chap. xviii . the saxons division of their people into four ranks . no person to marry out of his own rank . what proportion to be observed in marriages according to policy . like to like the old rule . now matrimony is made a matter of money , p. chap. xix . the saxons way of judging the event of war with an enemy . their manner of approving a proposal in council , by clattering their arms. the original of hundred-courts . their dubbing their youth into men. the priviledge of young lads nobly born . the morganheb or wedding-dowry , p. chap. xx. their severe punishments of adultery , by maiming some parts of the body . the reason of it given by bracton . the like practised by danes and normans , p. chap. xxi . the manner of inheriting among them . of deadly feuds . of wergild or head-money for murder . the nature of country-tenures and knights fees , p. chap. xxii . since the return of christianity into the island . king ethelbert's law against sacriledge . thieves formerly amerced in cattel . a blot upon theodred the good , bishop of london , for hanging thieves . the country called engelond by order of king egbert , and why so called . the laws of king ina , alfred , ethelred , &c. are still to be met with in saxon. those of edward the confessor , and king knute the dane , were put forth by mr. lambard in his archaeonomia , p. chap. xxiii . king alfred divides england into counties or shires , and into hundreds and tythings . the original of decenna or court-leet , friburg , and mainpast . forms of law , how people were to answer for those whom they had in borgh or mainpast , p. chap. xxiv . king alfred first appointed sheriffs . by duns scotus his advice , he gave order for the breeding up of youth in learning . by the way , what a hide of land is . king edgar's law for drinking . prelates investiture by the kings ring and staff. king knute's law against any english-man that should kill a dane . hence englescyre . the manner of subscribing and sealing till edward the confessor's time . king harold's law , that no welch-man should come on this side offa's dike with a weapon , p. chap. xxv . the royal consorts great priviledge of granting . felons estates forfeited to the king. estates granted by the king with three exceptions of expedition , bridge , and castle . the ceremony of the kings presenting a turf at the altar of that church , to which he gave land. such a grant of king ethelbald comprized in old verse , p. the contetns . book ii. chap. i. william the conquerour's title . he bestows lands upon his followers , and brings bishops and abbots under military service . an account of the old english laws , called merchenlage , danelage , and westsaxen-lage . he is prevailed upon by the barons , to govern according to king edward's laws , and at s. albans takes his oath so to do . yet some new laws were added to those old ones , p. chap. ii. the whole country inrolled in dooms-day book . why that book so called . robert of glocester's verses to prove it . the original of charters and seals from the normans , practised of old among the french. who among the romans had the priviledge of using rings to seal with , and who not , p. chap. iii. other wayes of granting and conveying estates , by a sword , &c. particularly by a horn. godwin's trick to get boseham of the arch-bishop of canterbury . pleadings in french. the french language and hand when came in fashion . coverfeu . laws against taking of deer , against murder , against rape , p. chap. iv. sheriffs and juries were before this time . the four terms . judges to act without appeal . justices of peace . the kings payments made at first in provisions . afterwards changed into mony , which the sheriff of each county was to pay in to the exchequer . the constable of dover and warder of the cinque ports why made . a disorder in church-affairs reformed , p. chap. v. william rufus succeeds . annats now paid to the king. why claimed by the pope . no one to go out of the land without leave . hunting of deer made felony . p. chap. vi. henry the first why called beauclerk . his letters of repeal . an order for the relief of lands . what a hereot was . of the marriage of the kings homagers daughter , &c. of an orphans marriage . of the widows dowry . of other homagers the like . coynage-money remitted . of the disposal of estates . the goods of those that dye intestate , now and long since , in the churches jurisdiction ; as also the business of wills. of forfeitures . of misdemeanors . of forests . of the fee de hauberk . king edward's law restored , p. chap. vii . his order for the restraint of his courtiers . what the punishment of theft . coyners to lose their hands and privy members . guelding a kind of death . what half-pence and farthings to pass . the right measure of the eln. the kings price set for provisions , p. chap. viii . the regality claim'd by the pope , but within a while resumed by the king. the coverfeu dispensed with . a subsidy for marrying the kings daughter . the courtesie of england . concerning shipwrack . a tax levied to raise and carry on a war , p. chap. ix . in king stephen's reign all was to pieces . abundance of castles built . of the priviledge of coining . appeals to the court of rome now set on foot . the roman laws brought in , but disowned . an instance in the wonder-working parliament , p. chap. x. in king henry the seconds time , the castles demolished . a parliament held at clarendon . of the advowson and presentation of churches . estates not to be given to monasteries without the kings leave . clergymen to answer in the kings court. a clergyman convict , out of the churches protection . none to go out of the realm , without the kings leave . this repealed by king john. excommunicate persons to find surety . laymen how to be impleaded in the ecclesiastical court. a lay-jury to swear there , in what case . no homager or officer of the kings to be excommunicated , till he or his justice be acquainted , p. chap. xi . other laws of church affairs . concerning appeals . a suit betwixt a clergy-man and a lay-man , where to be tryed . in what case one , who relates to the king , may be put under an interdict . the difference betwixt that and excommunication . bishops to be present at the tryals of criminals , until sentence of death , &c. pass . profits of vacant bishopricks , &c. belong to the king. the next bishop to be chosen in the kings chappel , and to do homage before consecration . deforcements to the bishop , to be righted by the king. and on the contrary , chattels forfeit to the king , not to be detained by the church . pleas of debts whatsoever in the kings court. yeomens sons not to go into orders without the lords leave , p. chap. xii . the statutes of clarendon mis-reported in matthew paris , amended in quadrilegus . these laws occasioned a quarrel between the king and thomas a becket . witness robert of glocester , whom he calls yumen . the same as rusticks , i. e. villains . why a bishop of dublin called scorch-uillein . villanage before the normans time , p. chap. xiii . the poet gives account which of those laws were granted by thomas a becket , which withstood . leudemen signifies lay-men , and more generally all illiterate persons , p. chap. xiv . the pope absolves thomas a becket from his oath , and damns the laws of clarendon . the king resents it , writes to his sheriffs , orders a seisure . penalties inflicted on kindred . he provides against an interdict from rome . he summons the bishops of london and norwich . an account of peter pence , p. chap. xv. a parliament at northampton . six circuits ordered . a list of the then justices . the jury to be of twelve knights . several sorts of knights . in what cases honorary knights to serve in juries . those who come to parliament by right of peerage , sit as barons . those who come by letters of summons , are styled chevaliers , p. chap. xvi . the person convict by ordeal , to quit the realm within forty dayes . why forty dayes allowed . an account of the ordeals by fire and water . lady emme clear'd by going over burning coulters . two sorts of tryal by water . learned conjectures at the rise and reason of these customs . these ordeals , as also that of single combat condemned by the church , p. chap. xvii . other laws : of entertaining of strangers . an uncuth , a gust , a hogenhine ; what of him who confesseth the murder , &c. of frank pledge . of an heir under age . of a widows dowry . of taking the kings fealty . of setting a time to do homage . of the justices duty . of their demolishing of castles . of felons to be put into the sheriffs hands . of those who have departed the realm , p. chap. xviii . some laws in favour of the clergy . of forfeitures on the account of forest or hunting . of knights fees . who to bear arms , and what arms. arms not to be alienated . no jew to bear arms. arms not to be carryed out of england . rich men under suspicion to clear themselves by oath . who allowed to swear against a free-man . timber for building of ships not to be carryed out of england . none but free-men to bear arms. free-men who . rusticks or villains not such , p. chap. xix . of law-makers . our kings not monarchs at first . several of them in the same county . the druids meeting-place where . under the saxons , laws made in a general assembly of the states . several instances . this assembly under the normans called parliament . the thing taken from a custome of the ancient germans . who had right to sit in parliament . the harmony of the three estates , p. chap. xx. the guardians of the laws , who . in the saxons time seven chief . one of the kings among the heptarchs styled monarch of all england . the office of lord high constable . of lord chancellor , ancient . the lord treasurer . alderman of england , what . why one called healfkoning . aldermen of provinces and graves , the same as counts or earls and viscounts or sheriffs . of the county court , and the court of inquests , called tourn le viscount . when this court kept , and the original of it , p. chap. xxi . of the norman earls . their fee. their power of making laws . of the barons , i.e. lords of manours . of the court-baron . it s rise . an instance of it out of hoveden . other offices much alike with the saxons . p. the first book of the english janus . from the beginning of the british story down to the norman conquest . chap. i. the counterfeit berosus with the monk that put him forth , both censured . the story of samothes the first celtick king. the bounds of celtica . from samothes , say they , the britans and gauls were called samothei . for which diogenes laertius is falsly quoted ; the word in him , being semnothei . there came forth , and in buskins too ( i mean , with pomp and state ) some parcels of years ago , and is still handed about every where , an author , called berosus a chaldee priest ( take heed how you suffer your self to believe him to be the same that flavius josephus so often up and down quotes for a witness ) with a commentary of viterbiensis . or , rather to say that which is the very truth , john annius of viterbium ( a city of tuscany . ) a dominican frier , playing the leger-de-main , having counterfeited berosas , to put off his own strange stories , hath put a cheat upon the lady muse who is the governess of antiquities , and has hung a bantling at her back . after the genealogies of the hebrews drawn down by that author , whoever he be , according to his own humour and method , for fear he should not be thought to take in the kingdoms and kings of the whole universe , and the etymologies of proper names by whole-sale , as we say ; as if he had been born the next day after grandam ops was delivered of jupiter , he subjoyns samothes ( the very same who is ycleped dis ) the founder of the celtick colonies , stuffing up odd patcheries of story to entertain and abuse the reader . now , this i thought fit by the by , not to conceal , that all that space which is bounded with the river rhine , the alpes , the mediterranean sea , the pyrenean hills , and lastly , the gascoin and the british oceans , was formerly termed celtogalatia ; nay , that p●olomy hath comprized all europe under the name of celtica . well , as the commentary of annius has it , this samothes was brother to gomar and tubal by their father japhet , from whom first the britans , then the gauls were called samothei ; and especially the philosophers and divines that were his followers . and out of laertius he tells us , for it is evident , that among the persians the magi flourished , among the babylonians and assyrians the chaldeans were famous , among the celts and gauls the druids , and those who were called samothei ; who , as aristotle in his magick , and sotion in his three and twentieth book of successions do witness , were men very well skilled in laws divine and humane , and upon that account were much addicted to religion ; and were for that reason termed samothei . these very words you meet with in annius . the name of laertius is pretended , and the beginning of his volume concerning the lives of philosophers . why then let us read laertius himself ; and amongst the celts and gauls ( saith he ) the semnothei as saith aristotle in his book of magick , and sotion in his three and twentieth of succession . concerning the samothei any other wayes there is not so much as one syllable . that they were men well skilled in laws divine and humane , or that they had their name given them upon that account , only the latin and foisted edition of b. brognol the venetian has told us : whereas in truth , in all the ancient greek copies of laertius , which that great scholar harry stephen saw and consulted with ( and he sayes he perused eight or nine ) there is no mention at all made of that business . and yet for all that , i cannot perswade my self , that it was only for want of care , or by meer chance , that this slipt into the glosses : it does appear , that there have been able lawyers and master philosophers not only among the greeks , the gauls , and those of italy ; but also among the northern nations , however barbarous . witness the druids among us , and among the goths , as jornandes tells us , besides cosmicus , one diceneus , who , being at once king of men , and priest of phoebus , did together with natural philosophy and other parts of good learning , transmit to posterity a body of laws , which they called bellagines ; that is , by-laws . there are some , who in laertius read samothei ; which is a device of those men , who with too much easiness ( they are isaac casaubon's words ) that i may say no worse , suffer themselves to be led by the nose by that counterfeit berosus . chap. ii. an account of the semnothei . why so called ; the opinion of h. stephen , and of the author . old heroes and philosophers went by the names of demy-gods . the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or venerable goddesses , the same as eumenides , dispensers of justice . and by plutarch and orpheus they are set for civil magistrates . judges in scripture so called elohim , i. e. gods. these semnai theai the same as deae matres in an old british inscription . and indeed if the samothei had any thing to do with truth , or the semnothei any thing to do with the ancient law of the celts ( in as much as they write , that britany was once in subjection to the celtick kings ) i should judge it not much beside the design of my intended method to inquire into the name and nature of them both . but they being both one and t'other past all hope , except such a one as lucian returning from the inhabitants of the sun , or those of the moon , would write their history , to speak of them would be more than to lose ones labour . i dare not to say much of them . i imagine , sayes harry stephen , they were so called , for having the gods often in their mouths , and that in these words , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is , the worshipful gods ; or for that they themselves were accounted amongst men as a kind of worshipful gods : but , writes he , this latter i do not take to be so likely as the former . but say i for my part , if i might venture my opinion against the judgement of so great a person , i guess this latter to be the likelier of the two . that the old heroes went by the names of gods , is a thing we read every where ; nor did antiquity grudge the bestowal of this honour even upon philosophers . not upon amphiaraus the prophet ; not upon aesculapius , not upon hippocrates , renowned physicians ; they are reckoned among the middle sort of gods. thus plato also was accounted by antistius labeo for a demy-god , and tyrtamus for his divine eloquence , had the name of theophrastus ( that is , god-like speaker ) given him by his master aristotle . no wonder then , if thereupon thence forward great philosophers were called semnothei , and as it were worshipful gods. these instances incline me , whilst i only take a view of their philosophy ; whom , if either the authority of annius , or the interpretation of brognol had sufficiently and fairly made out to have been also at the same time students and masters of law , i should hardly stick almost to affirm , that i had found out in what places the true natural spring and source both of their name , and as i may say , of their delegated power is to be met with . for i have it in pausanias ( forbear your flouts , because i waft over into greece , from whence the most ancient customs both sacred and prophane of the gentiles came ) i say in pausanias the most diligent searcher of the greek antiquities , i meet upon mars his hill at athens , and also in his achaicks ( or survey of achaia ) with chappels of the goddesses whom the athenians styled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is , worshipful . he himself also in his corinthiacks makes mention of a grove set thick with a sort of oaks on the left side of asopas a river in sicyon ( a countrey of peloponnesus ) where there stood a little chappel of the goddesses , whom the athenians termed semnai , the sicyonians called eumenides . the story of orestes and the eumenides or furies that haunted him is known to every body , nor can you tell me of any little smatterer in poetry , who doth not know , that they , together with adrastia , ramnissia , nemesis , and other goddesses of the same stamp , are pretended to be the avengers of villanies , and continually to assist jupiter the great god in punishing the wicked actions of mortals . they were black ones that met with orestes , but that there were white ones too , to whom together with the graces the ancients paid their devotions ; the same pausanias has left written in his survey of arcadia . i let pass that in the same author , she whom some called erinnys , that is a fury ; others called themis the goddess of justice . to be brief and plain ; the furies , that is , the avenging goddesses sit upon the skirts of the wicked ; but the eumenides , that is , the kind goddesses , as sophocles interprets them ( for that they were so called properly without the figure of antiphrasis or contradiction he is our author ) do attend the good and such as are blameless and faultless , and poor suppliants . nay , moreover plutarch writes in a poetick strain , that alcmaeon fled from these eumenides ; meaning in very deed , that he made his escape from the civil magistrates . in a word , the whole business we have been aiming at , orpheus compriseth in two verses of that hymn he has made upon those goddesses . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . which in a short paraphrase speaks thus ; but ye with eye of justice , and a face of majesty survey all humane race , judges commission'd to all time and place . see here plainly out of the most ancient divine among the heathens , how judges and the dispensers of law pass under the notion of these venerable goddesses : and it was a thing of custom to term the right of the infernal powers , as well as the doctrine of the heavenly ones , a thing holy and sacred . what hinders then i pray , but that one may guess , that the name , and title , and attributes or characters of the semnothei sprang forth and flowed from hence ; to wit , from the semnai theai or venerable goddesses ? homer in his poems calls kings 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is , persons bred and nourished by jove ; yea , the eternal and sacred scriptures themselvs do more than once call judges by that most holy name elohim , that is , gods. the judgement is gods , not mans ; and ( as munster remarks out of rabbi kimchi ) whatsoever thing scripture designs to magnifie or express with hight , it subjoyns to it the name of god. god ( as plutarch has it out of plato , who in his attick styl● imitates our moses ) hath set himself out as a pattern of the good , the dreadful syllables of whose very not-to-be-uttered name ( though we take no notice of the cabalists art ) do strike , move and twitch the ears of mortals , and one while when thorough ignorance they straggle out of the way , do bring them back into the path or track of justice ; another while when they are stopt up with prejudice , and are overcast with gloomy darkness , do with a stupendous , dismal and continual trembling shake the poor wretches , and put them into ague-sits . nor let that be any hindrance , that so splendid and so manly a name is taken from the weaker sex , to wit , the goddesses . let us more especially have to do with the britans , as those amongst whom are those choice and singular altars , not any where else to be met with in the whole world , with this inscription , deis matribus , to the mother-goddesses . concerning these mother-goddesses , that excellent learned man ( that i may hint it by the by ) confesses he could with all his search find out nothing ; but if such a mean person as i , may have leave , what if one should imagine , that those goddesses , whom pausanias in his attick stories calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , were the same as these mother goddesses ? for so those names import . the mother of the gods is a title well known ; wherewith not only berecynthia , but also juno , cybele , tellus , ceres , and other shee s among mythologists are celebrated and made famous . be this , if you will , a thing by the by and out of the way ; as he tells us , no great wit ever pleased without a pardon . relying upon that ( the readers pardon i mean ) i undertook this job , whatever it is ; and upon confidence of that , i come back to the business . chap. iii. one law of samothes out of basingstoke concerning the reckoning of time by nights . bodinus his censure of astrologers for otherwise computing their planetary hours . a brief account of some of samothes his successors , magus , sarron , druis , from whom the druids , &c. we do not any where meet with any law enacted by samothes his authority . yet one only one concerning the account of times , basingstoke the count palatine , a very modern historian , attributes to him . he defined , sayes he , the spaces or intervals of all time , not by the number of dayes , but of nights ( the same thing , saith caesar of the gauls , and tacitus of the germans ) and be observed birth-dayes , and the commencements of months and years in that order , that the day should come after the night . truth is , the britans do at this time observe that fashion , which is most ancient , and highly agreeable to nature . and the evening and the morning was the first day , and so on , sayes the hebrew writer , whose countrey-men the jews also followed this custom . the peripateticks ( i. e. the followers of aristotle ) do also at this rate reckon privation in the number of their three principles ; and hereupon john bodin adventures to censure the common astrologers , that they , according to the course of the planets as they order it , and repeat it over and over , begin their unequal hours , from the rising , rather than the setting of the sun. they write , that after this samothes , there came in play magus , sarran , druis , bardus , and others more than a good many , in order of succession . sarron was not addicted to make laws ( 't is stephanus forcatulus helps us to this ) but to compose them , to put them into order , and to recommend them to practice , as one who reduced those laws , which his grand-father samothes , and afterward his father magus had made , into one volume , and with severe menaces gave order for the keeping of them . from druis or druides they will have the druids so called , a sort of philosophers so much famed and talked of in caesar , pliny and others : believe it who list for me . the whole business of the druids at present i put off till caesar's times . chap. iv. k. phranicus . years after samothes being to reside in pannonia , intrusts the druids with the government . in the mean time brutus , aeneas his grand-son , arrives and is owned king by the britans , and builds troynovant , i. e. london . dunvallo molmutius . years after is king , and makes laws concerning sanctuaries , roads or high-wayes and plow-lands . k. belin his son confirms those laws , and casts up four great cause-wayes through the island . a further account of molmutius . about nine hundred years after samothes , king phranicus ( take it from the british story , and upon the credit of our jeoffry ) intrusts the druids with the management of affairs , whilst he himself resided in pannonia or hungary . in the mean time brutus , the son of sylvius posthumus king of the latines , and grand-child to aeneas ( for servius honoratus in his comment upon virgil , makes sylvius to be the son of aeneas , not of ascanius ) being happily arrived by shipping , with corinus one of the chief of his company , and coming to land at totnes in devonshire , the britans salute and own him king. he after he had built new troy ( that is , london ) gave laws to his citizens and subjects ; those such as the trojans had , or a copy of theirs . a matter of six hundred years after dunvallo molmutius being king , ordained ( my authors besides jeoffry of monmouth , are ralph of chester in his polychronicon , and florilegus ) that their ploughs , temples and roads that led to cities , should have the priviledge to be places of refuge . but because some time after there arose a difference concerning the roads or high-wayes , they being not distinguished by certain limits and bounds , king belin son of the foresaid molmutius , to remove all doubt , caused to be made throughout the island four royal high-wayes to which that priviledge might belong ; to wit , the fosse or dike , watlingstrete , ermingstrete , and ikeniltstrete . ( but our learned countrey-man and the great light of britan , william camden , clarenceaux king at arms is of opinion , these cause-wayes were cast up by the romans ; a thing that tacitus , bede and others do more than intimate . ) moreover , so sayes jeoffry , he ordained those laws , which were called molmutius his laws , which to this very time are so famed amongst the english. forasmuch as amongst other things , which a long time after , gildas set down in writing , he ordained , that the temples of the gods , and that cities should have that respect and veneration , that whatsoever runagate servant , or guilty person should fly to them for refuge , he should have pardon in the presence of his enemy or prosecutor . he ordained also , that the wayes or roads which led to the aforesaid temples and cities , as also the ploughs of husbandmen should be confirmed by the same law : afterwards having reigned forty years in peace , he dyed and was buried in the city of london , then called troynovant , near the temple of concord ( by which temple , there are not wanting those who understand that illustrious colledge on the bank of thames , consecrated to the study of our common law , now called the temple and ) which he himself had built for the confirmation of his laws . at this rate jeoffry tells the story ; but behold also those things which polydore virgil hath gathered out of ancient writers , whereof he wanted no store . he first used a golden crown , appointed weights and measures for selling and buying of things , punisht thieves and all mischievous sorts of men with the greatest severity ; made a great many high wayes ; and gave order , how broad they should be , and ordained by law , that the right of those wayes belonged only to the prince ; and set dreadful penalties upon their heads , who should violate that right , alike as upon theirs who should commit any misdemeanour in those wayes . moreover , that the land might not lye barren , nor the people be frequently oppressed or lessened through dearth or want of corn , if cattle alone should possess the fields , which ought to be tilled by men , he appointed how many ploughs every county should have , and set a penalty upon them by whose means that number should be diminished : and he made a law , that labouring beasts which attended the plough , should not be distrained by officers , nor assigned over to creditors for money that was owing , if the debtor had any other goods left . thus much polydore . chap. v. a brief account of q. regent martia , and of merchenlage , whether so called from her , or from the mercians . annius again censured for a forger , and his berosus for a fabulous writer . the female government of martia , widow to king quintiline , who had undertaken the tuition of sisillius son to them both , he being not as yet fit for the government , by reason of his nonage ; found out a law , which the britons called the martian law. this also among the rest ( i tell you but what jeoffry of monmouth tells me ) king alfred translated , which in the saxon tongue he called merchenlage . whereas nevertheless in that most elaborate work of camden , wherein he gives account of our countrey , merchenlage is more appositely and fitly derived from the mercians , and they so called from the saxon word mearc , that is , a limit , bound or border . these are the stories , which writers have delivered to us concerning those times , which were more ancient than the history of the romans ; but such as are of suspected , o● doubtful , that i may not say of no credit at all . among the more learned , there is hardly any critick , who does not set down annius in the list of forgers . and should one go to draw up the account of times , and to observe that difference which is so apparent in that berosus of viterbium from sacred scriptures , and the monuments of the hebrews , one would perhaps think , that he were no more to be believed , than another of the same name , who from a perpendicular position of the wandring stars to the center of the world in the sign of cancer , adventured to foretel , that all things should be burnt ; and from a like congress of them in capricorn , to say , there would be an universal deluge . the story is in seneca . chap. vi. the story of brutus canvast and taken to be a poetick fiction of the bards . jeoffry of monmouth's credit called in question . antiquaries at a loss in their judgements of these frivolous stories . some have in like manner made enquiry concerning our british history , and stumbled at it . from hence we had brutus , dunvallo and queen martia : there are some both very learned and very judicious persons , who suspect , that that story is patched up out of bards songs and poetick fictions taken upon trust , like talmudical traditions , on purpose to raise the british name out of the trojan ashes . for though antiquity , as one has it , is credited for a great witness ; yet however 't is a wonder , that this brutus , who is reported to have killed his father with an arrow unluckily aimed , and to have been fatal to his mother at her very delivery of him ( for which reason richard vitus now after so many ages makes his true name to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is , mortal ) should be mentioned by none of the romans : a wonder , i say , that the latin writers should not be acquainted with the name of a latin prince , who gave both name and government to britany . did euemerus messenius alone ever since the world began , sail to the panchoans and the triphyllians ? indeed it is an ordinary thing for poets , to ingraft those whom they celebrate in their poems , into noble stocks and illustrious families , and by the assistance of their muses heightning every thing above the truth , to feign and devise a great many stories . and what else were the bards , as athenaeus tells us out of possidonius ; but poets reciting mens praises in song ? how many things are there in that fabulous age ( which in joseph scaliger's account would more aptly be called the heroick age of the world , i mean ) down from that much talked of deluge of pyrrha to the beginning of iphitus his olympiads ; how many idle stories are there mixt with true ones , and afterwards drest up and brought upon the stage ? very many nations , sayes trithemius , as well in europe as in asia , pretend they took their original from the trojans ; to whom i have thought good to lend so much faith , as they shall be able to perswade me of truth by sufficient testimony . they are frivolous things which they bring concerning their own nobility and antiquity , having a mind as it were openly to boast , as if there had been no people in europe before the destruction of troy ; and as if there had been no one among the trojans themselves of ignoble birth . he who made the alphabetical index to jeoffry of monmouth ( who was bishop of st. asaph too ) as he is printed and put forth by ascensius , propt up the authors credit upon this account , that , as he sayes , he makes no mention any where in his book , of the franks ; by reason forsooth , that all those things almost , which he has written of , were done and past before the franks arrival in france . this was a slip surely more than of memory . go to jeoffry himself , and in his nineteenth chapter of his first book you meet with the franks in the time of brennus and belinus among the senones , a people of france : a gross misreckoning of i know not how many hundred years . for the franks are not known to have taken up their quarters on this side the river rhine , till some centuries of years after christs incarnation . for howbeit by poetick licence and rhetorical figure aeneas be said to have come to the lavinian shores , ( which had not that name till some time after ) yet it were much better , that , both in verse and prose , those things which appertain to history , should be expressed according to that form of ovid ; where at the burning of rhemus his funeral pile he sayes , tunc juvenes nondum facti flevere quirites , that is , the young men then not yet quirites made , wept as the body on the pile they laid . and at this rate jeoffry might and ought to have made his translation , if he would have been a faithful interpreter . but as to our brutus whence the britans , saxo whence the saxons , bruno whence those of brunswick , freso whence those of friseland , and bato whence the batavians had their rise and name , take notice what pontus heuterus observes , as others have done before him . songs or ballads , sayes he , and rhymes made in an unlearned age , with ease obtruded falshoods for truths upon simple people , or mingling falsehoods with truths imposed upon them . for three or four hundred years ago there was nothing that our ancestors heard with greater glee , than that they were descended from the adulterous trojans , from alexander of macedonia the overthrower of kingdoms , from that manqueller hercules of greece , or from some other disturber of the world. and indeed that is too true which he sayes , — mensur aque fictis crescit , & auditis aliquid novus adjicit auctor . which in plain english speaks this sence . thus stories nothing in the telling lose , the next relater adding still to th' news . but i will not inlarge . to clear these points aright , antiquaries , who are at see-saw about them , will perhaps eternally be at loss , like the hebrews in their mysterious debates , for want of some elias to come and resolve their doubts . chap. vii . what the trojan laws were , which brutus brought in . that concerning the eldest sons inheriting the whole estate , confuted . in the first times there were no positive laws ; yet mention made of them in some very ancient authors , notwithstanding a remark of some ancient writers to the contrary . well ! suppose we grant there was such a person ever in the world as brutus : he made laws , they say , and those taken out of the trojan laws ; but what i pray were those trojan laws themselves ? there is one , i know well enough , they speak of , concerning the prerogative of the eldest sons , by which they inherited the whole right and estate of their deceased father . herodotus writes it of hector , son and heir to king priam , and jeoffry mentions it ; but did this law cross the sea with brutus into brittany ? how then came it , that the kingdom was divided betwixt the three brothers , locrinus , camber , and albanactus ? betwixt the two , ferrix and porrix ? betwixt brennus and belinus ? and the like of some others . how came it , that in a parliament of henry the eighth , provision was made , that the free-holds of wales should not thence-forward pass according to that custom , which they call gavelkind ? and anciently , if i be not mistaken , most inheritances were parted among the children , as we find in hesiods works . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . — i. e. we had already parted the estate . and to the same purpose many like passages there are in old poets , and in holy writ . but , as i said , what are those trojan laws ? perhaps the same with those , by which nephelococcygia , the city of the birds in aristophanes , ( or , as we use to say , vtopia ) is governed . the gravest writers do acknowledge , that those most ancient times were for the most part free from positive laws . the people , so says justin , were held by no laws : the pleasures and resolves of their princes past for laws , or were instead of laws . natural equity , like the lesbian rule in aristotle , being adapted , applied , and fitted to the variety of emergent quarrels , a●● strifes , ordered , over-ruled , and decided all controversies . and indeed at the beginning of the roman state , as pomponius writes , the people resolved to live without any certain law or right , and all things were governed by the hand and power of the king : for they were but at a little distance from the golden age , when — vindice nullo sponte suâ sine lege fidem rectumque colebant . that is to say , when — people did not grudge to be plain honest without law or judge . that which the heresie of the chiliasts heretofore affirmed , concerning the sabbatick or seventh millenary , or thousand years of the world. and those shepherds or governors of the people , to whom — 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 — that is , — into whose hand jove trusts his laws and scepter for command . did govern them by the guidance of vertue , and of those laws which the platonicks call the laws of second venus . not out of the ambition of rule , as st. austin hath it , but out of duty of counsel ; nor out of a domineering pride , but out of a provident tenderness . do you think the trojans had any other laws ? only except the worship of their gods and those things which belong to religion . it was duty , says seneca , not dignity , to reign and govern : and an eye and a scepter among the aegyptians , were the absolute hieroglyphicks of kings . what ? that there is not so much as the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is law , to be met with in those old poets , orpheus , musaeus , or homer , ( who was about an hundred and fifty years after the destruction of troy ) as josephus against appio , plutarch , and several modern writers have remarked : i confess , if one well consider it , this remark of theirs is not very accurate . for we very often read in homer and hesiod , the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which signifies laws ; and in both of them the goddess eunomia from the same theme as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . — which being interpreted , is but they by legal methods bear the sway i' th' city fam'd for beauties . — which is a passage in homers hymn to mother tellus , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. the law of song , ( which musicians might not transgress ) is mentioned in his hymn to apollo . nay great plato , one beyond all exception , has left it in writing , that talus ( who had the management of the cretan common-wealth committed to him , together with rhadamanthus , the son of jupiter , by king minos ) that he did thrice every year go the circuit through the whole island ( which was the first country , as polyhistor tells us , that joyned the practice of laws with the study of letters ) and kept assizes , giving judgment according to laws engraven in brass . i say nothing of phoroneus king of the argives , or of nomio the arcadian ; and in good time leave this subject . i could wish i might peruse jupiters register , wherein he has recorded humane affairs . i could wish , that the censure of some breathing library and living study ( which might have power over the ancients , as we read in eunapius that longinus had ) or that the memory of some aethalides might help us sufficiently to clear and make out the truth . hence our next passage is to the classick writers of the latin style and story . chap. viii . an account of the druids out of caesar's commentaries , whence they were so called . their determining in point of law , and passing sentence in case of crime . their award binds all parties . their way of excommunicating or outlawing . they have a chief over them . how he is chosen . their priviledge and immunity . cajus julius caesar was the first of the romans , who has committed to writing the religious rites , the laws and the philosophy of the drvids . their name is of a doubtful origination , by no means were they so called from that druis or druides we meet with in berosus : but whether they were so termed from a greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that signifies an oak , in that they performed none of their devotions without oaken leaves , as pliny and those that follow him are of opinion ; or from the dutch true-wise , as goropius becanus will have it ; or from trutin , a word which with the ancient germans signified god , as paulus merula quotes it out of the gospel of othfred ( though in the angels salutation , in the magnificat , in zachariahs song and elsewhere , trutin rather denotes lord than god ; and see whether there does not lye somewhat of the druid in the name of st. truien , among the people of liege , some having exploded st. drudo ) whencesoever they had their name , these gown men among the gauls , i and the britans too , were the interpreters and guardians of the laws . the discipline of these druids was first found in britany , and so far as it regards the civil court , we shall faithfully subjoyn it out of the forenamed caesar. . they order matters concerning all controversie , publick and private . so in the laws of the twelve tables at the same rate the knowledg of cases , of precedents , of interpreting was in the colledge of pontiffs or high priests , and such plainly our druids were . if any ill prank had been played , if murder committed , if there were a controversie about inheritance , about bounds of land , these were the men that determined it , these amerced rewards and punishments . . if any private person or body of men do not stand to their award , they excommunicate him , that is , forbid him to come to sacrifice , which among them is the most grievous punishment . . those who are thus excommunicated , are accounted wicked and ungodly wretches , every body goes out of their way , and shuns their company and conversation for fear of getting any harm by contagion . neither have they the benefit of the law when they desire it , nor is any respect shown to them . . the druids have one over them , who has the chiefest authority amongst them . . when he dies , if there be any one that is eminent above the rest , he succeeds in place : but if there be several of equal merit , one is chosen by majority of votes . . the druids were wont to be excused from personal attendance in war , nor did they pay taxes with the rest ; they were freed from military employ , and had an immunity of all things . the levites among the hebrews , who were the most ancient priests in the world , injoyed the same priviledge . chap. ix . the menage of their schools without writing . on other occasions they might use the greek letters , as caesar saith , yet not have the language . the greek letters then were others than what they are now . these borrowed from the gauls , as those from the phoenicians . ceregy-drudion , or the druids stones in wales . this place of caesar's suspected . lipsius his judgment of the whole book . . upon the account of that priviledge , they had in their schools ( which were most of them in britany ) a great confluence of youth . they are said to learn without book , says caesar , a great number of verses : therefore some of them spend twenty years in the discipline . nor do they judge it meet to commit such things to writing , whereas generally in all other , whether publick affairs or private accompts , they make use of greek letters . what ? greek letters ? so we read greek ones . why ! marseilles , a city of france , which was a greek colony of the phocians , had made the gauls such lovers of greeks , that , as strabo the geographer tells us , they writ their very contracts and covenants , bargains and agreements , in greek . the fore-mentioned julius caesar also writes , that there were tablets found in the camp of the switzers , made up of greek letters . but , for all that , i would not have any one from hence rashly to gather , that the greek language was in use to that age and people , or to these philosophers and lawyers . they made use of greek letters , therefore they had the greek tongue too ; this truly were a pitiful consequence . at this rate the targum or chaldee paraphrase , as paulus merula has it , and goropius before him , would consist of the hebrew language , because 't is printed in hebrew characters : and the like may be said of the new testament in syriack , done in hebrew letters . what ? that those very letters of the greeks in caesars time , and as we now write them , are rather gallick ( as borrowed from the gauls ) than greek ? he was acquainted with those greek letters , but did not yet know the gallick ones , which learned men do think the greeks took for their copy , after the phoenician letters , which were not altogether unlike the hebrew , were grown out of use . consult for this wolfgangus lazius his celtae , becanus his gallica , and if thou hast a mind , annius his archilochus , xenophons aequivoca , and what others write concerning linus , cadmus , palamedes , and simonides , the first inventors of the alphabet . in the mean time take this from me , that those ancient and rude gothick characters , which bonaventure vulcanius of bruges , lately put forth , with a little comentary of one without a name , do very much resemble the greek ones ( as also the russian characters do at this day ) and that those which are now latin letters , were at first brought over into italy out of arcadia , along with nicostrata the mother of evander , who was banished his country . but that which seems to put the matter out of all dispute , caesar being about to write to quintus cicero , who was then besieged somewhere in flanders , among the nervians , by great rewards perswades a chevalier , that was a gaul , to carry the letter for him : he sends it written in greek , lest peradventure it being intercepted , the enemy should come to know their design . to what purpose should he have done this , if that chevalier , who was a gaul , or if the gauls , or if the very druids themselves , who had the management of state , had been skilled in greek ? among the western hills of denbeigh , a county in north-wales , there is a place , as i read in our famous chorographer , commonly called ceregy-drudion , that is , the druids stones , and some small pillars are seen at yvoellas , inscribed with foreign characters , which some suspect to have been those of the druids . who if they have reason so to suspect , i would to god , time , with his rusty teeth , had spared those pillars , that so some light might shine from thence to clear this quarrel if so be our interpretation of that form of caesars speaking , which we brought , do not please ( as to strabo's testimony , that respects somewhat later times , and perhaps mainly concerns those who lived near the sea-side ) why mayst not thou , with that great scholar francis hotoman be of opinion , that the word graecis crept into this story , either by the carelesness or confidence of transcribers ? for elsewhere in that very author , where it is said , dextris humeris exertis , justus lipsius , the prince of criticks , remarks , that the word humeris is plainly redundant , thrust in perchance by the vamper of that story , julius celsus . and what so great a man , of so great a judgment as he was , did censure of those commentaries of caesar , in his book called electa , or choice pieces , take from himself thus . i see many patches stitched into that purple ; nor doth the expression it self there every where breath to my nostrils that golden ( as i may so say ) gum , or liquid myrrh , of pure antiquity . read it , read it over again , you will find many things idly said , disjoynted , intricate , vampt , said over and over , that it is not unreasonable to think , but that some novel and unskilful hand was added to this , as it were , statue of ancient work . therefore we may be easily cheated , if we stand upon such little scruples of words , as we shall meet with in one julius or other , caesar or celsus . chap. x. the druids reckoning of time . an age consists of thirty years . what authors treat of the druids . their doctrines and customs savour of pythagoras and the cabalists . they were the eldest philosophers and lawyers among the gentiles . some odd images of theirs in stone , in an abby near voitland , described . . the druids begun their months and years from the sixth moon ( so says pliny ) and that which they called an age after the thirtieth year . in the attick account an age or generation , and that of a man in his prime and strength , was comprized within the same terms , according to the opinion of heraclitus , and as it is in herodotus ; nor had nestor's triple age a larger compass , if one may believe eustathius . tiberius drove these druids out of the two gallia's , claudius banisht them out of rome , and the worship of the true god christ , sped them out of britany . what further appertains to the sacred rites and doctrine of the druids , ( not to speak further of caesar ) strabo , pliny , diodorus siculus , ( by the way his latin version we do not owe to poggius of florence , as the books published would make us believe , but to john frea formerly fellow of baliol colledge in oxford , if we may believe an original copy in the library of the said colledge . ) beside these , lucan , pomponius mela , ammianus marcellinus , and very lately otho heurnius , in his antiquities of barbarous philosophy , and others have , with sufficient plainness , delivered , yet so , that every thing they say savours of pythagoras ( and yet i am ne're a whit the more perswaded that pythagoras ever taught in merton-hall at oxford , or anaxagoras at cambridge , as cantilep and lidgate have it ) i and of the cabalists too ( for john reuchlin hath compared the discipline of pythagoras , and that of the cabalists , as not much unlike . ) whether the druids , says lipsius , had their metempsychosis or transmigration of souls , from pythagoras , or he from them , i cannot tell . the very same thing is alike to be said , concerning their laws , and the common-wealths which they both of them managed : they have both the same features as like as may be , as it was with cneius pompey , and caius vibius . for the samian philosopher did not only teach those secrets of philosophy which are reserved , and kept up close in the inner shrine ; but also returning from egypt he went to croton , a city of italy , and there gave laws to the italians , ( my author is laertius ) and with near upon three hundred scholars , governed at the rate , as it were of an aristocracy . the laws of zaleucus and charondas are commended and had in request . these men , says seneca , did not in a hall of justice , nor in an inns of court , but in that secret and holy retirement of pythagoras , learn those institutes of law , which they might propose to sicily and to greece , all over italy , both at that time flourishing . that holy and silent recess was perchance borrowed of the druids : forasmuch as what clement of alexandria witnesses , heretofore the more secret and mysterious arts were derived from the barbarians to the greeks . however the business be , it appears hence plainly , that the druids were of the oldest standing among the philosophers of the gentiles , and the most ancient among their guardians of laws . for grant they were of pythagoras his school , yet even at that rate they are brought back at least to the fiftieth or sixtieth olympiad , or if thou wilt , to the tyranny of the tarquins , which is about two and twenty hundred years ago . 't is true , pliny , cicero , austin , eusebius disagree in this point ; nor will i catch that mistake by the handle , which draws him , meaning pythagoras , back to numa's time . to what hath been said , i shall not grudge to subjoyn a surplage out of conradus celtes . he is speaking of some ancient images of stone , which he had seen in a certain abby at the foot of a hill that bears pines , commonly called vichtelberg , in the neighbourhood of voitland , which he conceives did by way of statue represent the druids . they were six in number , says he , at the door of the temple niched into the wall , of seven foot a piece in height , bare-footed , having their heads uncovered , with a greekish cloak on , and that hooded , and a satchel or scrip by their side , their beard hanging down to their very privities , and forked or parted in two about their nostrils ; in their hands a book and a staff like that of diogenes , with a severe forehead and a melancholy brow , stooping down with their head , and fastening their eyes on the ground . which description , how it agrees with those things which are recounted by caesar and strabo , concerning the golden adornments , the dyed and coloured vestures , the bracelets , the shaved cheeks and chin of the britans , and other things of the like kind , let them who are concerned look to that . chap. xi . the britans and gauls had laws and customs much alike , and whence that came . some things common to them both , set down ; in relation to the breeding of their children , the marrying of their wives , the governing of their families , burning women that killed their husbands , and burning some servants with the dead master for company . together with some remarks of their publick government . but forasmuch as britanny gave the beginnings and improvements to the discipline of these druids , and both britans and gauls had their government , customs , language , rites sacred and profane , every thing almost the same , or much alike , as mr. william camden hath some while since most learnedly made out , o mr. camden , with what respect shall i name thee ! in freta dum fluvii current , dum montibus umbrae lustrabunt convexa , ac dum cynosura britannos , semper honos , noménque tuum , laudesque manebunt . which in hearty english makes this acknowledgment of his worth , as long as rivers run into the main , whilst shades on mountains shall the welkin hide , and britans shall behold the northern wain , thy honour , name , and praise shall still abide . and it is evident , that a great part of britany was once under the government of divitiacus king of the soissons , a people of france . therefore these following remarks i thought not amiss to set down as british , whether they were imparted to this isle by the ancient gauls ( by reason of its nearness ) or whether the gauls owed them to the britans . . they do not suffer their children to come to them in open sight , ( they are caesar's words ) but when they are grown up to that age , that they may be able to undergo military duty and to serve in war. . the men , what mony they receive with their wives upon account of portion , they lay down so much out of their own estate upon an appraisement made to make a joint stock with the portion . there is an account jointly kept of all this mony , and the profits of it are reserved ; the longer liver is to have both shares , with the profits of the former times . . the men have power of life and death over their wives , as well as over their children . hereupon bodin charges justinian with a falshood , for affirming that other people had not the same fatherly power as the romans had . . when a master of a family , who is of higher birth and quality , dies , his kindred meet together , that if the manner of his death were suspicious , they may by torture , as servants were used , examine the wife concerning the business , and if she be found guilty , they torment her miserably and burn her alive . to this story that most excellent lawyer , and worthy lord chief justice of the common pleas , sir edward coke , refers the antiquity of that law , which we at this day use of devoting to the flames those wicked baggages , who stain their hands with the nefarious murder of their husbands . . those servants and dependents , who were known to have been beloved by their master in his life time , were , when the funeral rites were prepared , burnt with him for company . . it was ordered , that if any one by flying report or common fame had heard any thing from the borders , that might concern the common-wealth , he was to make it known to some magistrate , and not impart it to any body else . . the magistrates conceal those things they think fit , and what they judge may be of use to the publick , they discover to the populace . . no body has leave to speak of the common-wealth , or of publick affairs , but in council or parliament . . they came armed into the council or to parliament . so the custom of the nation was , saith livy ; and tacitus , the like of the germans . chap. xii . women admitted to publick debates . a large commendation of the sex , together with a ●indication of their fitness to govern ; against the salick law , made out by several examples of most nations . . it was grown a custom amongst them ( we meet with this in plutarch ) that they treated of peace and war with their women in company , and if any questions arose betwix● them and their allies , they left it to them to determine . the same custom the cecropians , ( that is , the people of athens ) once had , as austin relates it out of varro , before the women by majority of vote carried it for minerva against neptune . away with you , simonides , and whosoever you are , scoundrels , that unworthily abuse the finer and brighter sex. good angerona , thou goddess of silence , wash , nay stop eubulus his foul mouth , who denies there were ever any good women more than two in the world , to wit , chast penelope , and alcestis , who died in her husbands stead . how large an honour was paid to the counsels , the prudence , the virtue of the gaulish ladies in their chiefest affairs , and not without their desert ? how much honour even at this day , is yearly paid at orleance , on the eighth of may , to the statue of joan darcy of lorain , that stands on the bank of the river loir ; who obliged her dear country with a victory wonderfully got , when all had been lost . to pass by other arguments , antiquity holds this sex to be equally divine as the male. in heaven , sea , earth , together with jupiter , neptune , pluto , who were the gods that shared the world , there governed juno , salacia , proserpina , their goddesses . marry ! in varro's three fold divinity , there are more she-gods than he-gods . ipsa quoque & cultu est , & nomine foemina virtus . uirtue her self , howe're it came , is female both in dress and name . but i do not go to act over caius agrippa's part , by declaiming upon female excellency . the thing it self speaks more than i can , and the subject is its own best orator . i must add one thing which cornelius tacitus tells us of the britans , that they were wont to war under the conduct of women , and to make no difference of sex in places of command and government . which places yet there are some who stiffly deny , that women by right should have the charge of ; as being , what euripides says of them , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . that is , but ill for the stout feats of war , who scarce to look on iron dare . but those authors especially , who , propped up with the salick law ( as they call it ) write , that males only are by right of inheritance capable of the government of the french , they do hold and maintain this argument tooth and nail , with all the unkindness and spite as may be to the english law , which admits of women to the throne . they urge , that not only the laws of pharamond , but nature her self is on their side . the government of women ( 't is bodin of anjou sayes it ) is contrary to the laws of nature , which hath bestowed upon men discretion , strength of body , courage and greatness of spirit , with the power of rule , and hath taken these things from women . but , sweet mr. bodin , are not discretion , strength , courage and the arts of government , more to be desired and required in those who have the tuition of kings in their minority , than in the kings themselves till they are come to age ? truly i am of that mind . for why then , pray tell me , did not that reason of yours wring the guardianship of st. louis out of the hands of the queen-mother blanch ? why not out of isabella's hands under charles the sixth ? why not of catharine de medicis , whilst the two brothers francis and charles her pupils were incircled with the crown ? why not out of the hands of mary , louis the thirteenth being at this very time king ? were the jews , that i may go back to stories more ancient , blind , that they could not see the defects of womens nature , in the government of debora , who triumphed over sisera , and is sufficiently commended in holy writ ? were the italians blind under the government of the most prudent amalasincta ? the halicarnassians , under that of the most gallant artemisia ? the egyptians , among whom heretofore their women managed law-courts and business abroad , and the men lookt to home and minded huswifery ? and the aethiopians under their nicaula , whom being very desirous of wisdom , king solomon , the wisest man that has been ever since the world was , honourably entertain'd ? were the assyrians , under the government of their magnificent semiramis ? the massagetes , under that of the revengeful dame thomyris ? the palmyrenes , under that of the most chaste zenobia ? and that i may make an end once , under that of other excellent women , all nations whatever , none excepted but the franks ? who , as goropius will have it , came to throw off and slight female government upon this account , that in vespasian's time they had seen the affairs of their neighbours the bructeri in east friseland , whilst that scornful hag velleda ruled the roast , came to no good issue . i do very well know , that our perjured barons , when they resolved to exclude queen mawd from the english throne , made this shameful pretence , that it would be a shame , for so many nobles to be subject to a woman . and yet you shall not read , that the iceni ( our essex-men , &c. ) got any shame by that boadicia , whom gildas terms a lioness , or that the brigantes ( i. e. york-shire-men , &c. ) got any by chartismandua . you will read , that they got glory and renown by them both . reader , thou canst not here chuse but think of our late soveraign of ever blessed memory , the darling of britan , q. elizabeth , nor canst thou , whosoever thou art , but acknowledge , that there was not wanting to a woman ( what malmesbury writes of sexburga the queen dowager of cenwalch king of the west saxons ) a great spirit to discharge the duties of the kingdom ; she levied new armies , kept the old ones to duty ; she governed her subjects with clemency , kept her enemies quiet with threats ; and in a word , did every thing at that rate , that there was no other difference betwixt her and any king in management , but her sex. of whose ( i mean elizabeths ) superlative and truly royal vertues a rare poet , and otherwise a very learned man , hath sung excellently well , si quasdam tacuisse velim , quamcunque tacebo major erit : primos actus veteresque labores pros●quar ? ad sese revocant praesentia mentem . justitiam dicam ? magis at clementia splendet . victrices referam vires ? plus vicit inermis . 't is pity these are not well rendred into english. however take them as they are in blank verse . should i in silence some her uertues pass , which e're i so pass o're , will greater be : shall i her first deeds and old facts pursue ? present affairs to them call back my mind . shall i her justice in due numbers sing ? but then her clemency far brighter shines . or shall i her victorious arms relate ? in peace unarm'd she hath got more to th' state. what did the germans our ancestors ? they thought there was in that sex something of sanctity and foresight , nor did they slight their counsels , nor neglect the answers they gave , when questions were put to them about matters of business ; and as superstition increased , held most of them for goddesses . let him then , whatever dirty fellow it was , be condemned to the crows ( and be hang'd to him ) who is not ashamed out of ancient scrolls , to publish to the world , that they ( women ) agree with soldiers ( bully-rocks and hectors ) mainly in this , that they are continually very much taken up with looking after their body , and are given to lust , that souldiers themselves are not , nor endeavour to be more quick and sudden in their cheats and over-reachings , that soldiers deceive people at some distances of time , but women lye alwayes at catch , chouse and pillage their gallants all the wayes they can ; bring them into consumptions with unreasonable sittings up ; and other such like mad rude expressions he useth , not unfitting for a professor in bedlam colledge . plato allowed women to govern , nor did aristotle , ( whatever the interpreters of his politicks foolishly say ) take from them that priviledge . vertue shuts no door against any body , any sex , but freely admits all . and hermes trismegistus that thrice great man in his poemander according to his knowledge of heavenly concerns ( and that sure was great in comparison of what the owl-ey'd philosophers had ) he ascribes the mystical name of male-female to the great understanding , to wit , god , the governour of the universe . they ( the good women i have been speaking of ) from their cradle ( at this rate men commonly talk of them ) do too much love to have the reins of government , and to be uppermost . well! be it so , that they do love to govern ? and who is it doth not love them ? now a sin and shame be it for lovers to grudge to their beloved , that which is most desired and wished by them : nor could i forbear out of conscience with my suffrage , to assist as far as i could , that sex , which is so great and comfortable an importance to mankind , so sweet a refreshment amidst our sharpest toils , and the vicissitudes of life ; and in a word , is the dearest gift that dame nature could bestow upon man. but let us now return to caesar's gauls again . chap. xiii . their putting themselves under protection by going into great mens service . their coins of money , and their weighing of it . some sorts of flesh not lawful to be eaten by them . . very many of them , when they are opprest with debt or with great taxes , or with the injurious oppression of great men , put themselves out to service to the nobles . over such they have the same right or authority , as masters have over their servants or slaves . these things following are expresly related also of the britans themselves . . they use brass coin or rings ( some read it , plates ) of iron proportion'd to a certain weight , instead of money . but , ( saith solinus , a more modern historian ) they dislike and disallow of markets or fairs or money ; they give and take commodities by way of barter . camden is of opinion , that the custom of coining money , came in along with the romans among the cattieuchlani , that is , the people of buckinghamshire , bedfordshire and hartfordshire . he takes notice out of william the conqueror's book of rates or dooms-day book ( which is seasonable to mention upon this head of coins ) that as amongst the old romans , so amongst our ancestors , money was weighed ( as gervase of tilbury also tells us ) and so told out and paid down . now they paid customs to the romans ; and for this purpose they had coins stamped and marked with various shapes of living creatures and vegetables , which ever and anon are digged up out of the ground . and we read in a very ancient chronicle of the monastery of abendon , which had two kings cissa and ina for its founders , that at the laying the first foundations , there were found very old coins engraven with the pictures of devils and satyrs . one may very well suppose them to be british coins . . they do not think it lawful to taste of the flesh of hare , or hen , or goose , and yet they keep these creatures for pleasure and divertisement sake . why they forbore only hare , and hen , and goose , i am not able to give the reason . i perceive something of pythagoras , and something of the jewish discipline mixt . for that philosopher of samos abstained from the eating of flesh , not in general from all , but with a certain choice from that of some particular creatures . chap. xiv . community of wives among the britans , used formerly by other nations also . chalcondylas his mistake from our civil custom of saluting . a rebuke of the foolish humour of jealousie . . they have ten or twelve of them wives in common amongst them , and especially brothers with brothers , and fathers with their sons ; but what children are born of such mothers , they are fathered upon them by whom they were first lain with , when they were maids . o villany and strange confusion of the rights of nature ! dii meliorae piis , erroremque hostibus istum ! which in christian english speaks thus . good god! for th' pious better things devise , such ill as this i wish not t' enemies . however let not this platonick community of wives be more reproach to the britans , than that promiscuous copulation which was used by the thuscans , and before cecrops his time ( who for appointing marriage , that is , joyning one man and one woman together , was termed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i.e. as one may say two-shaped ) by the athenians , ( as theopompus , suidas and athenaeus report it ) was to them . besides , eusebius in his evangelical preparation writes , that our people for the most part were contented with one single marriage . did not , may one think , chalcondylas mistake caesar's meaning , who a hundred years ago and upwards setting himself to write history at athens , and peradventure over-carelesly drawing ancient customs down to the last age , ventured to affirm of the britans his contemporaries , that when any one upon invitation enters the house of a friend , the custom is , that he first lye with his friends wife , and after that he is kindly entertained ? or did that officious kiss , the earnest of welcome , which is so freely admitted by our women from strangers and guests , which some take particular notice of as the custom of our countrey , put a trick upon chalcondylas , and bring him into that mistake ? 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . sayes theocritus of old , that is , in empty kisses there is swéet delight . and , qui vult cubare , pangit saltem suavium , sayes the servant in plautus , he that would a woman win , with a kiss he doth begin . and that other fellow , quaero deinde illecebram stupri , principio eam suavium posco . and et jam illud non placet principium de osculo , sayes jealous amphitruo to his wife alcumena . and agesilaus mistrusting his wanton genius , refused the buss or salute of a handsome beautiful youth . for as he sayes , — parva leves capiunt animos , that is , small matters kindle the desire . and a loose spirit 's soon on fire . this our grecian knew well enough , and perchance thought of that unlucky hint , — si non & caetera sumpsit , haec quoque , quae sumpsit , perdere dignus erat . moreover , that great philosopher of lawyers baldus , hath set it down for a rule , that the fathers consent and betrothal is ratified and made good by the daughters admitting the wooer to kiss her . which point of law it would be very ridiculous to imagine should concern us , with whom both maids and married women do easily afford , and civilly too , them that salute them a kiss , not such as catullus speaks of billing like doves , hard busses or wanton smacks , but slight modest chaste ones , and such as sisters give to brothers . these civilities , when omitted , are alwayes signs of clownishness ; when afforded , seldom are accounted signs of whorishness . nor do the husbands in this case ( unless it be perhaps some horn-mad-cuckold ) with a wrinkled forehead shake their bull-feathers , or so much as mistrust any thing as upon jealousie of this custom . it may be chalcondylas being a little pur-blind , saw these passages as it were through a grated lattice , and made ill use of his mistake : i mean , whilst he compared our britans , who upon a matrimonial confidence trust their mates honesty , with the jealous italians , venetians , spaniards , and even his own countrey-men . which people , it is a wonder to me , they should so warily , with so much diligence and mistrust set pinfolds , cunning spies and close attendance , locks and keys , and bars and bolts upon their madonna 's chastity ( most commonly in my conscience all to no purpose ) when that which he has said is as good as oracle , though a wanton one . quod licet , ingratum est : quod non licet , acriùs urit . ferreus est , siquis , quod sinit alter , amat . siqua , metu dempto , casta est , ea denique casta est : quae , quia non liceat , non facit , illa facit . qui timet , ut sua sit , nequis sibi subtrahat illam ; ille machaoniâ vix ope sanus erit . in english thus , what 's frée , 's unpleasant ; what 's not , moves desire . he 's thick skull'd , who doth things allow'd admire . who , fear aside , is chaste , she 's chaste indéed ; who , cause she can't , forbears , commits the deed . who 's wife mistrusts , and plays the jealous whelp , is mad beyond physicians art and help . who does not know , that natures byass runs to things forbidden ? and he who attempts unlawful things , does more often lose those which are lawful . marry ! that free usage of the hot baths of baden in germany , men and women together , is much safer than being jealous . — quis non bonus omnia malit credere , quàm tanto sceleri damnare puellam ? that is , what good man would not take all in best sense , rather by living undisturb'd and frée ; than by distrustful foolish jealousie his lady force to quit her innocence ? but we have taken that pains upon a thing by the by , as if it were our proper business . chap. xv. an account of the british state under the romans . claudius wins a battel , and returns to rome in triumph , and leaves a. plautius to order affairs . a colony is sent to maldon in essex , and to several other places . the nature of these colonies out of lipsius . julius agricola's government here in vespasian's time . jvlius caesar gave a sight of britanny to posterity , rather than made a full discovery or a delivery of it . however malmsbury sayes , that he compelled them to swear obedience to the latin laws , certainly he did scarce so much as abridge the inhabitants from the free use of their own laws ; for the very tributes that were imposed upon them , they in a short time shook off , by revolting from the roman yoke . the same liberty they used and enjoyed to all intents and purposes during augustus , tiberius and caligula's reigns . aulus plautius as general by order of claudius caesar , brought an army into britany . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ( so saith dio ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is , the inhabitants at that time were subject to divers kings of their own . he overcame in battel prince cradock and togodunus the two sons of king cunobellinus ; afterwards claudius himself came over into the island , fought a set battel ; and having obtained the victory , he took maldon in essex , the royal city of cunobellinus , disarmed the inhabitants , left the government of them , and the subduing of the rest of the people to plautius , and went back himself to rome , where he was honoured with a most splendid and stately triumph . for this was he , of whom seneca the tragoedian speaks : cuique britanni terga dedêre , ducibus nostris ante ignoti , jurisque sui . — which may be thus englished , to whom bold britans turn'd their back , t' our captains formerly unknown , and govern'd by laws of their own . the island being reduced great part under the romans power , and into a lieutenancy , a colony is brought down to maldon ( in essex ) as tacitus and dio has it , with a strong party of veterans , and is planted up and down in the countrey they had taken , as a supply against those that would rebel , and to train up their fellows or allies to the duties of the laws . an old stone speaks thus of that colony , cn . munatius m. f. pal . aurelius . bassus proc . aug . praef . fabro . praef . coh . iii. sagitariorum . praef . coh . iterum . ii. asturum . censitor . civium . romanorum . coloniae . victricensis . quae . est. in. britannia . camaloduni . besides , there was a temple built and dedicated to claudius ara ( or as lipsius reads it arra ) aeternae dominationis ; that is , the altar or earnest of an eternal government . but you will say , all this makes little to our purpose : yes , very much ; as that which brings from abroad the roman orders , laws , fashions , and every thing into britany . near st. albans , a town in hartfordshire , there was sure enough the seat of cassibellinus called verulams , and the burghers , as we learn from agellius , were citizens of rome infranchized , out of their corporations , using their own laws and customs , only partaking the same honorary priviledge with the people of rome : but we have the colony of maldon in essex , which upon another nearer account had all the rights and orders of the people of rome derived to it from the freedom of that city , and was not at its own disposal , or to use its own laws . and the like was practised in this island in more than one place . the reverse of severus the emperours coyn shews it . col . eboracum . leg . vi. victrix . and the coyn of septimius geta on either side . col . divana . leg . xx. victrix . this old divana ( which is the very same with deunana in ptolomy ) if you make it english , is chester the chief city of the cornavians , that is , the people of cheshire , staffordshire , shropshire , &c. again , there is a piece of an old stone in the walls of bath in somersetshire near the north gate has this inscription upon it , dec . coloniae . glev. vixit . ann. lxxxvi . glevum was that then which glocester is now . it may be colchester had the same right of priviledge , unless you had rather derive its name from the river coln that runs aside it . in a word ( sayes seneca to albina ) how many colonies has this people of ours sent into all provinces ? where ever the roman conquers , he dwells . see what abundance there was of them in british province ; whose form of government , and other laws , that they were different from that of the britans , we may plainly perceive from that very form of their constitution after their detachment ; which i shall present you with out of that famous antiquary , and every way most learned and celebrious person justus lipsius . their manner and method was ( sayes he ) that the lands should be divided to man by man , and that by three grave discreet persons , whom they used to chuse for this purpose , who did set out their particular seats and grounds , and the town it self ( if there were one to be built ) and prescribed them rules and rights , and the form as it were of a new common-wealth : yet in that manner , that all things might bear a resemblance of rome and the mother city ; and that in the very places themselves the courts of law , the capitols , the temples , the state-houses or town-halls might be according to that model , and that there might be in the government or magistracy two persons as bailiffs in most places , like the two consuls at rome ; in like manner surveyors and scavengers , aldermen of the wards and headboroughs , instead of a senate or common council as we may call it . ) this is lipsius his account ; so that beatus gildas is not much out of the way , when he sayes , it was reckoned not britannia , but romania . and an ancient copy of verses , which joseph scaliger has rescued out of its rust and mouldiness , has it : mars pater , & nostrae gentis tutela quirine , et magno positus caesar uterque polo ; cernitis ignotos latiâ sub lege britannos , &c. that is , in english , sire mars , and guardian of our state quirinus hight after thy fate , and caesars both plac'd near the pole with your bright stars ye do behold , and th' unknown britans aw , t' observe the roman law. the stately seraglio or building for the emperours women at venta belgarum ( a city at this day called winchester ) and other things of that kind i let pass . in the time of the emperours vespasian , titus and domitian , julius agricola , tacitus his wives father , was lord deputy lieutenant here . he encouraged the barbarous people to civil fashions , insomuch that they took the roman habit for an honour , and almost every body wore a gown ; and as juvenal has it in his satyr , gallia causidicos docuit facunda britannos . the british lawyers learnt of yore , from the well-spoken french their lore : t'imply , hereafter we should sée our laws themselves in french would be . chap. xvi . in commodus his time king lucy embraces the christian religion , and desires eleutherius then pope , to send him the roman laws . in stead of heathen priests , he makes three arch-bishops and twenty eight bishops . he endows the churches , and makes them sanctuaries . the manner of government in constantine's time , where ends the roman account . in commodus the emperours time the light of the gospel shone afresh upon the britans . lucius the first king of the christians ( for the romans , as in other places , so in britany , made use of even kings for their instruments of slavery ) by the procurement of fugatius and damianus did happily receive from pope eleutherius the seal of regeneration ( that is , baptism ) and the sacred laws of eternal salvation . he had a mind also to have the civil laws thence , and desired them too . ovid long since had so prophesied of rome : juráque ab hâc terrâ caetera terra petet . that is , and from this countrey every other land their laws shall fetch , and be at her command . now eleutherius wrote him this answer : you have desired of us , that the roman and caesarean laws may be sent over to you ; that you may , as you desire , use them in your kingdom of britanny . the roman and caesarean laws we may at all times disprove of , but by no means the law of god. for you have lately through divine mercy taken upon you in the kingdom of britanny the law and faith of christ ; you have with you in the kingdom both pages of holy writ , ( to wit , the old and new testament ) . out of them , in the name and by the favour of god , with the advice of your kingdom , take your law , and by it through gods permission , you may govern your kingdom of britanny . now you for your part are gods vicegerent in your kingdom . howsoever by injury of time the memory of this great and illustrious prince king lucy hath been imbezill'd and smuggled , this upon the credit of the ancient writers appears plainly , that the pitiful fopperies of the pagans , and the worship of their idol-devils did begin to flag , and within a short time would have given place to the worship of the true god , and that three arch-flamens and twenty eight flamens , i. e. arch-priests , being driven out , there were as many arch-bishops and bishops put into their rooms ( the seats of the arch-bishops were at london , at york and at caerleon in wales ) to whom , as also to other religious persons , the king granted possessions and territories in abundance , and confirmed his grants by charters and patents . but he ordered the churches ( as he of monmouth and florilegus tell us ) to be so free , that whatsoever malefactor should fly thither for refuge , there he might abide secure , and no body hurt him . in the time of constantine the emperour ( whose pedigree most people do refer to the british and royal blood ) the lord president of france was governour of britanny . he together with the rest , those of illyricum or slavonia , of the east and of italy , were appointed by the emperour . in his time the lord deputy of britanny , ( whose blazonry was a book shut with a green cover ) was honoured with the title of spectabilis . there were also under him two magistrates of consular dignity , and three chief justices ( according to the division of the province into five parts ) who heard and determined civil and criminal causes . and here i set up my last pillar concerning the britans and the roman laws in britanny , so far forth as those writers which i have , do supply me with matter . chap. xvii . the saxons are sent for in by vortigern against the scots and picts , who usurping the government , set up the heptarchy . the angles , jutes , frisons , all called saxons . an account of them and their laws , taken out of adam of bremen . afterwards the scots and picts making incursions on the north , and daily havock and waste of the lands of the provincials , ( that is , those who were under the roman government ) they send to desire of the romans some auxiliary forces . in the mean time , rome by a like misfortune , was threatned with imminent danger , by the fury of the goths : all italy was in a fright , in an uproar . for the maintaining of whose liberty , the empire being then more than sinking , was with all its united strength engaged and ready prepared . so this way the britans met with a disappointment . wherefore vortigern , who was governour in chief , sent for supplies from the neighbouring germans , and invited them in . but according to the proverb , carpathius leporem ; he caught a tartar : for he had better have let them alone where they were . upon this account , the saxons , the angles , the jutes , the frieslanders arrive here in their gally-foists in the time of theodosius the younger . at length being taken with the sweetness of the soil ( a great number of their countrey-men flocking over after them , as there were at that time fatal flittings and shiftings of quarters all the world over ) and spurred on with the desire of the chief command and rule , having struck up a league with the picts , they raise a sad and lamentable war against their new entertainers , in whose service they had lately received pay : and to make short , in the end having turned the britans out of their ancestors seats they advanced themselves into an heptarchy of england , so called from them . albeit they pass by various names , yet in very deed they were all of them none other but saxons . a name at that time of a large extent in germany ; which was not , as later geographers make it , bounded with the rivers of the elb , of the rhine and the oder , and with the confines of hessen and duringen , and with the ocean ; but reached as far as into the cimbrian chersonesus now called jutland . it is most likely , that those of them that dwelt by the sea-side , came over by ship into britanny . to wit , at first horsus and hengistus came over out of batavia , or the low countreys , with a great company of saxons along with them ; after that out of jutland the jutes ( for janus douza proves , that the danes under that appellation seised our shores , in the very beginning of the saxon empire : ) out of angela , according to camden about flemsburg a city of sleswick , came the angles ; out of friseland ( procopius is my author ) the frizons . one may without any wrong call them all saxons ; unless fabius quaestor aethelwerd also did his nation injury , by calling them so . he flourished six hundred and fifty years ago , being the grand-child or nephew of king aethelulph , and in his own words discourses , that there was also a people of the saxons all along the sea-coast from the river rhine up to the city donia , which is now commonly called denmark . for it is not proper here to think of denmark in the neighbouring territories of vtrecht and amsterdam , by reason of the narrowness of that tract . those few observes then , which adam of bremen hath copied out of einhard concerning the saxons , forasmuch as our ancient saxons i suppose , are concerned in them , i here set down in this manner and order . chap. xviii . the saxons division of their people into four ranks . no person to marry out of his own rank . what proportion to be observed in marriages according to policy . like to like the old rule . now matrimony is made a matter of money . . the whole nation consists of four different degrees or ranks of men ; to wit , of nobles , of free-men born , of free-men made so , and of servants or slaves . and nithard speaking of his own time , has divided them into ethelings , that is , nobles , frilings , that is , free-men , and lazzos , that is , servants or slaves . it was enacted by laws , that no rank in cases of matrimony do pass the bounds of their own quality ; but that a noble-man marry a noble-woman , a free-man take a free-woman , a bond-man made free be joyned to a bond-woman of the same condition , and a man-servant match with a maid-servant . and thus in the laws of henry duke of saxony , emperour elect , concerning justs and tournaments , when any noble-man had taken a citizen or countrey-woman to wife , he was forbid the exercise of that sport to the third generation , as sebastian munster relates it . the twelve tables also forbad the marriage of the patricii or nobles with the plebeians or commons ; which was afterwards voided and nulled by a law which canuleius made , when he was tribune of the people . for both politicians and lawyers are of opinion , that in marriages we should make use of not an arithmetical proportion , which consists of equals ; nor of a geometrical one , which is made up of likes ; but of a musical one , which proceeds from unlike notes agreeing together in sound . let a noble-man that is decayed in his estate , marry a commoner with a good fortune ; if he be rich and wealthy , let him take one without a fortune : and thus let love , which was begot betwixt wealth and poverty , suite this unlikeness of conditions into a sweet harmony ; and thus this disagreeing agreement will be fit for procreation and breed . for he had need have a good portion of his own , and be nearer to crassus than irus in his fortunes , who , by reason of the many inconveniencies and intolerable charges of women , which bring great dowries , doth , with megadorus in plautus , court a wife without a portion ; according to that which martial sayes to priscus : vxorem quare locupletem ducere nolim quaeritis ? vxori nubere nolo meae . inferior matrona suo sit , prisce , marito : non aliter fiunt foemina virque pares . which at a looser rate of translation take thus , should i a wife with a great fortune wed , you 'l say , i should be swéetly brought to bed . such fortune will my liberty undo . who brings estate , will wear the bréeches too . unhappy match ! where e're the potent bride hath the advantage wholly on her side . blest pairs ! when the men sway , the women truckle , there 's good agréement , as 'twixt thong and buckle . and according to that of the greek poet , — 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . take , if you 'l be rul'd by me , a wife of your own degrée . but there is little of our age fashioned to the model of this sense : height of birth , vertue , beauty , and whatsoever there was in pandorae of good and fair , do too too often give place to wealth ; and that i may use the comedians word , to a purse crammed with money . and as the merry greek poet sayes , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . to be noble or high-born , is no argument for love : good parts of bréeding lye forlorn ; 't is money only they approve . i come back now to my friend adam . chap. xix . the saxons way of judging the event of war with an enemy . their manner of approving a proposal in council , by clattering their arms. the original of hundred-courts . their dubbing their youth into men. the priviledge of young lads nobly born . the morganheb or wedding-dowry . . they take a prisoner of that nation , with which they are to have a war , by what way soever they can catch him , and chose out one of their own countrey-men ; and putting on each of them the arms of their own countrey , make them two fight together , and judge of the victory , according as the one or the other of them shall overcome . this very thing also tacitus himself hath to whom einhard sends his reader . for though he treat in general of the germans , yet nevertheless without any question , our saxons brought over along with them into this island very many of those things , which are delivered to us by those who have wrote concerning the customs of the germans . among which , take these following . . in councils or publick assemblies , the king or prince , ( i.e. a chief person ) according as every ones age is , according to his nobility , according to his reputation in arms , according to his eloquence , has audience given him , where they use the authority of perswading , rather than the power of commanding . if they dislike what he sayes , they disapprove it with a hum and a rude noise . if they like the proposal , they shake and rustle their spears or partisans together . it is the most honourable kind of assent , to commend the speaker with the clattering of their arms. from hence perhaps arose the ancient right of wapentakes . . there are also chosen at the same councils or meetings , chief persons ( as justices ) to administer law in the several villages and hamlets . each of those have a hundred associates out of the commonalty for their counsel and authority . this is plainly the pourtraict of our hundreds , which we still have throughout the counties of england . . they do nothing of publick or private affair , but with their arms on ; but it is not the custom for any one to wear arms , before the city or community approve of him as sufficient for it . then in the council it self , either some one of the princes or chief persons , or the father of the young man or some kinsman of his in token of respect , give him a shield and a partisan . this with them stands for the ceremony of the gown ; this the first honour of youth arriving at manhood ; before this be done , they seem but a part of the family : but after this is over , they are a part of the common-wealth . the right ancient pattern of dubbing knights , if any where else to be found . julius caesar sayes almost the very same thing of the gauls . they do not suffer their children , to come in publick to them , till they be come to age , that they be able to undergo the duties of war. . a remarkable nobleness of descent , or the high merits of their fathers , procure even to young lads the dignity and esteem of a prince . for , as the philosopher sayes , we owe this regard to vertues , that we respect them , not only whilst present , but also when they are taken away out of our sight ; and in the wise mans account , the glory of parents , is the honour of their children . . the wife doth not bring the husband a portion , but the husband gives the wife a dowry . contrary to what the roman law saith , that custom is still in use with the english , as morgangheb in other places . chap. xx. their severe punishments of adultery , by maiming some parts of the body . the reason of it given by bracton . the like practised by danes and normans . . the husband if his wife playes the whore , cuts off her hair , strips her naked , and turns her out of doors in presence of her kindred , and drives her through the streets , lashing or beating her as she goes along . they were formerly in this northern part of the world , most severe punishers of adultery , and they had such laws as were — ipsis marti venerique timenda ; that is , such as would put mars and venus in a trance of fear , amidst their dalliance . king knute ordered , that a wife , who took another passenger on board her than her husband , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . oft times i th' nights away she hies , and into other harbour flyes . ( well speed thee and thine , fair venus ; nor do i willingly bring these ill tidings to thy tender ducklings . ) should have her nose and ears cut off . i remember , antinous in homer threatens irus with the chopping off his nose , ears and privities ; and vlysses inflicts that very punishment upon his goat-herd melanthius , for his having been too officious in his pimping attendance upon the gallants , that haunted the house in his absence . how any one should deserve this penalty , which so disfigures nature , i do not yet sufficiently understand . heraclides ponticus informs us , that law-makers were wont to maim that part especially which committed the misdemeanour . in testimony of this , he mentions tytius his liver as the shop and work-house of lust ; and it were no hard matter to bring in other more pertinent instances ; and pereant partes , quae nocuerc . saith some poet , the parts that did the hurt , let them e'en suffer for 't . however it was not melanthius his ears , and by no means his nose that offended ; no nor the good wives neither that commits the fact : as martial the merry wag tells a certain husband , quis tibi persuasit nares abscindere moecho ? non hâc peccata est parte , marite , tibi . that is , with modesty to render it , what made thee , angry man , to cut the nose of him , that went to rut ? 't was not that part , that did th' offence : therefore to punish that , what sense ? but who doth not see , that a woman hath no other parts of her body so lyable to maiming or cutting off ? both those parts make much for the setting her off ; nor are there any others in the whole outward frame of the microcosm , which being cut off , do either more disparage beauty , or withal less afflict the animal vertue , as they call it , by which life is maintain'd . now for those , who of old time did unluckily , that is , without the favour of those heathen gods prema and mutinus , to whose service they were so addicted , offer violence to untainted chastity ; the loss of members did await the lust of such persons , . that there might be member for member ( they are the words of henry bracton , a very ancient writer of our law , and they are clear testimonies , that the english have practised the law of like for like ) quia virgo , cùm corrumpitur , membrum amittit , & ideò corruptor puniatur in eo in quo deliquit : oculos igitur amittat propter aspectum decoris , quo virginem concupivit ; amittat & testiculos , qui calorem stupri induxerunt so long ago , aut linguam aut oculos aut quae tibi membra pudorem abstulerant , ferro rapiam . sayes progne to her sister philomele , speaking of the filthy villain tereus , who had ravished her , i 'le cut out his eyes or tongue , or those parts which did thée the wrong . and plautus in his play called paenulus , sy. facio quod manifesto moechi haud ferme solent . mi. ruid id est ? sy. refero vasa salva . i remember i have read that jeoffry de millers a nobleman of norfolk , for having inticed the daughter of john briton to an assignation , and ingaged her with venereal pledges ; being betrayed and trepann'd by the baggage , underwent this execution ; and suffered besides , whatsoever a fathers fury in such a case would prompt him to do : but withal , that king henry the third was grievously offended at it , dis-inherited briton , banished him , and gave order by proclamation , that no one should presume , unless it were in his wives case , to do the like . but these passages are of later date , and since the normans time and from them ; unless you will bring hither that which we meet with in alured's law concerning a man and a maid-servant . from whence we slide back again to tacitus . chap. xxi . the manner of inheriting among them . of deadly feuds . of wergild or head-mony for murder . the nature of country-tenures and knights fees. . every ones children are their heirs and successors , and there was no will to be . nor was it lawful with us down to our grandfathers time , to dispose of country farms or estates by will , unless it were in some burroughs , that had a peculiar right and priviledge of their own . if there be no children , then , says he , the next of kin shall inherit ; brethren , or uncles by the fathers or mothers side . those of the ascending line are excluded from inheritances , and here appears the preference of the fathers side : a law at this very day usual with the english. . to undertake the enmities rather than the friendships , whether of ones father or kinsman , is more necessary . capital enmities , which they call deadly feuds , are well known to our northern people . nor do they hold on never to be appeased : for even murder is expiated by a certain number of some head of cattel , and the whole family of the murdered person receives satisfaction . murders formerly were bought off with head-mony called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; though one had killed a nobleman , nay the king himself , as we may see in athelstan's constitutions : but good manners , i suppose , have prevailed above laws . . the lord imposes upon his tenant a certain quantity of corn or cattel , or clothes . we see here clearly enough the nature of country land-holders , fees or tenures . as to military or knights fees , give me leave to set that down too . dionysius halicarnasseus gives us a very ancient draught and model of them in the trojans and aborigines : florus in the cymbrians , and lampridius in alexander severus . both the northern people and the italians do owe them to the huns and lombards ; but these later according to a more modern form . let these things suffice out of cornelius tacitus , which belong to this head. chap. xxii . since the return of christianity into the island , king ethelbert's law against sacriledge . thieves formerly amerced in cattel . a blot upon theodred the good , bishop of london , for hanging thieves . the country called engelond by order of king egbert , and why so called . the laws of king ina , alfred , ethelred , &c. are still to be met with in saxon. those of edward the confessor , and king knute the dane , were put forth by mr. lambard in his archaeonomia . before that the christian doctrine had driven out and banished the saxon idolatry , all these things i have hitherto been speaking of , were in use . ethelbert ( he that was the first king , not only of kent , but of all england , except northumberland ) having been baptized by austin the monk , the apostle , as some call him , of the english ) amongst other good things which by counsel and grant he did to his nation , ( 't is venerable bede speaks these words ) he did also with the advice of wise men , appoint for his peoples use the orders of their proceedings at law , according to the examples of the romans . which having been written in the english tongue ( says he ) are hitherto , or to this time kept and observed by them . among which orders or decrees he set down in the first place , after what manner such an one should make amends , who should convey away by stealth any of those things that belonged to the church , or to a bishop , or to the rest of the orders . in the laws of some that came after him , as those of king alured ( who cull'd out of ethelbert's acts to make up his own ) and those of king athelstan , thieves make satisfaction with mony ; accordingly as tacitus says of the germans , that for lighter offences those that were convicted are at the rate of their penalties amerced such a number of horses or other cattel . for , as festus hath it , before brass and silver were coyned , by ancient custom they were fined for their faults so much cattel : but those who medled with any thing sacred , we read had that hand cut off with which they committed the theft . well! but am i mistaken , or was sacriledge even in the time of the saxon government punisht as a capital crime ? there is a passage of william of malmsbury , in his book de gestis pontificum , that inclines me to think so . speaking of theodred , the bishop of london when athelstan was king , he says , that he had among the common people got the sirname of theodred the good ; for the eminence of his virtues : only in one thing he fell short , which was rather a mistake than a crime , that those thieves which were taken at st. edmunds , whom the holy martyr had upon their vain attempts tied with an invisible knot ( he means st. edmundsbury in suffolk ; which church these fellows having a design to rob , are said by miracle to have stood still in the place , as if they had been tied with cords : these thieves i say ) were by his means or sufferance given up to the severity of the laws , and condemned to the gallows or gibbet . let not any one think that in this middle age , this gallows or gibbet i spoke of , was any other thing than the roman furca , upon which people hang and are strangled till they die . . egbert king of the west-saxons ( i make use of camdens words ) having gotten in four kingdoms by conquest , and devour'd the other two also in hope , that what had come under the government of one , might likewise go under one name ; and that he might keep up the memory of his own people the angles , he gave order by proclamation , that the heptarchy which the saxons had possest , should be called engelond . john carnotensis writes , that it was so called from the first coming in of the angles ; and another some body says it was so named from hengist a saxon prince . there are a great many laws of king ina , alfred , edward , athelstan , edmund , edgar , ethelred , and knute the dane , written in the saxon language ; which have lasted till these very times . for king knute gave order ( 't is william of malmsbury speaks ) that all the laws which had been made by former kings , and especially by his predecessor ethelred , should under pain of his displeasure and a fine , be constantly observed : for the keeping of which , even now in the time of those who are called the good , people swear in the name of king edward ; not that he appointed them , but that he observed them . the laws of edward , who for his piety has the sirname of confessor , are in readers hands . these of the confessor were in latin ; those others of knute were not long since put into latin by william lambard a learned man , and one very well vers'd in antiquity ; who has recovered them both , and published the saxon original with his translation over against it , printed by john day at london , anno . under the title of archaeonomia , or a book concerning the ancient laws of the english. may he have a good harvest of it as he deserves . from historians let us borrow some other helps for this service . chap. xxiii . king alfred divides england into countyes or shires , and into hundreds and tythings . the original of decenna or court-leet , friburg , and mainpast . forms of law , how people were to answer for those whom they had in borgh or mainpast . . ingulph the abbot of crowland , writing of king alfred says : that he was the first of all that changed the villages or lordships and provinces of all england into counties or shires . before that it was reckoned and divided according to the number of hides or plough-lands by little districts or quarters . he divided the counties into hundreds and tythings ; ( it was long before that honorius , arch-bishop of canterbury , had parted the country into parishes ; to wit , anno . ) that every native home-born lawful man , might be in some hundred and tything ( i mean whosoever was ●ull twelve years of age ) and if any one should be suspected of larceny or thest , he might in his own hundred or ward , being either condemned or giving security ( in some manuscripts it is being acquitted ) he might either incur or avoid the deserved penalty . william of malmsbury adds to this , that he that could not find security was afraid of the severity of the laws ; and if any guilty person , either before his giving security or after , should make his escape , all of that hundred and tything should incur the kings fine . here we have the original of decenna or a court-leet , of friburg , and perhaps of mainpast : which things though grown out of use in the present age ; yet are very often mentioned , not only in the confessors laws , but also in bracton and in other records of our law. what decenna was , the word it self does almost shew : and ingulph makes out , that is , a dousin or courtleet . friburg or borgh signifies a surety ; for fri is all one as free . he who passes his word for anothers good behaviour , or good a bearing , and is become his security ; is said to have such a one in his borgh : being ingaged upon this account to the government , to answer for him if he misbehave himself . and hence it is , that our people in the country call those that live near them , or as i may say at the next door , neighbours : when yet those that would find out the reason why the people of liege in the low countries are called eburones , do understand that burgh , which is the same as borgh , to stand for a neighbour ; and this is plainly affirmed by pontus heuterus , in other originations of the like kind . manupastus is the same thing as a family : as if one would say , fed by hand . just in the like sence julius pollux , in greek terms a master of a family , trophimos ; that is , the feeder of it . that the rights of friburg and manupast were in use with the english some five or six generations ago , is manifest . curio a priest is fined by edward the third , because there had been one of his family a murderer . and the ancient sheets concerning the progress or survey of kent under edward the second , do give some light this way . ralph a milner of sandon , and roger a boy of the said ralph in borgh of * twicham ; ( critick whoever you are , i would not have you to laugh at this home-spun dialect ) came by night to the mill of harghes , and then and there murdered william the milner ; and carried away his goods and chattels and presently fled : it is not known whither they are gone , and the jury mistrusts them the said ralph and roger concerning the death of the aforesaid william ; therefore let them be driven out and out-lawed . they had no chattels , but the aforesaid ralph was in borgh of simon godwin of twicham , who at present has him not ; and therefore lies at mercy : and roger was not in borgh , but was of the mainpast of robert arch-bishop of canterbury deceased ; there being no engleshire presented , the verdit is , the murder upon the hundred . the first discoverer of it and three neighbours are since dead ; and thomas broks , one of the neighbours , comes and is not mistrusted ; and the villages of wimesbugewelle and egestoun did not come fully to the coroners inquest and are therefore at mercy . and about the same time , solomon rois of ickham came to the house of alice the daughter of dennis whenes , and beat her and struck her upon the belly with a staff ; so that she dyed presently . and the foresaid solomon presently fled , and the jury mistrust him concerning the death aforesaid ; therefore let him be driven out and be outlawed . he had no chattels , nor was he in borgh because a vagrant : the verdit , the murder lies upon the hundred . &c. and according to this form more such instances . but let it suffice to have hinted at these things , adding out of henry bracton ; if out of frank-pledge an offender be received in any village , the village shall be at mercy ; unless he that fled be such an one , that he ought not to be in leet and frank-pledge ; as nobles , knights , and their parents ( their eldest sons it is in the yearly records of law in edward the first 's time ; and we may take in daughters too ) a clergy-man , a freeman , ( i fear this word has crept in ) and the like , according to the custom of the country ; and in which case he , of whose family and mainpast they were , shall be bound in some parts , and shall answer for them ; unless the custom of the country be otherways , that he ought not to answer for his mainpast , as it is in the county of hertford , where a man does not answer for his mainpast for any offence , unless he return after felony , or he receive him after the offence committed , as in the circuit of m. de pateshull in the county of hertford , in such a year of king henry the fifth . in sooth these usages do partly remain in our tythings and hundreds , not at all hitherto repealed or worn out of fashion . chap. xxiv . king alfred first appointed sheriffs . by duns scotus his advice , he gave order for the breeding up of youth in learning . by the way , what a hide of land is . king edgar's law for drinking . prelates investiture by the kings ring and staff. king knute's law against any english-man that should kill a dane , hence englescyre . the manner of subscribing and sealing till edward the confessor's time . king harald's law that no welch-man should come on this side offa's dike with a weapon . . the governors of provinces who before were styled deputy-lieutenants ( we return to ingulph and king alfred ) he divided into two offices ; that is , into judges , whom we now call justices , and into sheriffs , who do still retain the same name . away then with polydore virgil , who fetches the first sheriffs from the norman conqueror . . john scot erigena advised the king , that he would have his subjects instructed in good letters ; and that to that end he would by his edict take care of that which might be for the benefit of learning . whereupon he gave strict order to all freemen of the whole kingdom , who did at least possess two hides of land , that they should hold and keep their children till the time of fifteen years of their age , to learning ; and should in the mean time diligently instruct them to know god. a hide of land , that i may note it once for all , and a plough-land ( that is as much land as can be well turned up and tilled with one plough every year ) are read as synonymous terms of the same sence , in huntingdon , matthew paris , thomas walsingham ; and expresly in a very old charter of dunstan . although some take a hide for an hundred acres , and others otherwise ; do thou , if thou hadst rather so do , fansie it to be as much ground as one can compass about with a bull-hide cut into thongs , as queen dido did at carthage : there are some who are not unwilling to have it so understood . . king edgar like a king of good fellows , or master of revels , made a law for drinking . he gave order that studs or knobs of silver or gold ( so malmsbury tells us ) should be fastned to the sides of their cups or drinking vessels , that when every one knew his mark or boundary , he should out of modesty , not either himself covet or force another to desire more than his stint . this is the only law before the first parliament under king james , has been made against those swill-bowls , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , swabbers of drunken feasts and lusty rowers , in full brimm'd rummers that do ply their oars . who by their carowses ( tipling up nestor's years , as if they were celebrating the goddess anna perenna ) do at the same time drink others healths , and mischief and spoil their own and the publick . . there was no choice of prelates ( these are the words of ingulph again ) that was merely free and canonical ; but the court conferred all dignities , as well of bishops as of abbots , by the kings ring and staff , according to his good pleasure . the election or choice was in the clergy and the monks ; but they desired him whom they had chosen , of the king. edmund , in king ethelred's time , was after this manner made bishop of the holy island on the coast of northumberland : and king edgar in his patent , which he signed to the abby of glastenbury , retained to himself and his heirs , the power of bestowing the pastoral staff to the brother elect. . to as many as king knute retained with him in england ( to wit , to the danes ; for by their hands also was the scepter of this kingdom managed ) it was granted , that they should have a firm peace all over ; so that if any of the english killed any of those men , whom the king had brought along with him ; if he could not clear himself by the judgment of god ( that is , by ordeal ) to wit , by water and burning hot iron , justice should be done upon him : but if he run away and could not be taken , there should be paid for him sixty six marks ; and they were gathered in the village where the party was slain , and therefore because they had not the murderer forth coming ; and if in such village by reason of their poverty , they could not be gathered , then they should be gathered in the hundred , to be paid into the kings treasure . in this manner writes henry bracton , who observes that hence the business of englishshire came into fashion in the inquests of murder . . hand-writings ( i.e. patents and grants ) till edward the confessors time , were confirmed by the subscriptions of faithful persons present ; a thing practised too among the britans in king arthur's time , as john price informs us out of a very ancient book of the church of landaff . those subscriptions were accompanied with golden crosses , and other sacred seals or like stamps . . king harald made a law , that whosoever of the welch should be found with a weapon about him without the bound which he had set them , to wit , offa's dike ; he should have his right hand cut off by the kings officers . this dike our chorographer tells us was cut by offa king of the mercians , and drawn along from the mouth of the river dee to the mouth of the river wye for about eighty miles in length , on purpose to keep the english and welch asunder . chap. xxv . the royal consorts great priviledge of granting . felons estates forfeited to the king. estates granted by the king with three exceptions of expedition , bridge , and castle . the ceremony of the kings presenting a turf at the altar of that church , to which he gave land. such a grant of king ethelbald comprized in old verse . the donations or grants of the royal consort , though not by the kings authority , contrary to what the priviledge of any other wife is , were ratified also in that age , as they were by the roman law : which by the patent of aethelswith , wife to burghred king of the mercians , granted to cuthwuls in the year . hath been long since made out by sir edward coke , lord chief justice of the common pleas : where also king ethelred's ancient charter proves , that the estates of felons ( those i mean who concern themselves in burglaries and robberies ) are forfeited to the king. having already mentioned those hand-writings or grants , which are from one hand and t'other , conveyances of tenure ( the fewel of quarrels ) i have a mind , over and above what has been said , to set down also these remarks , as being to our purpose ; and taken from the saxons . as for instance , that those are most frequent whereby estates are conveyed to be held with the best and fairest right ; yet most commonly these three things excepted , to wit , expedition , repairing of bridges , and building of castles : and that those to whom the grants were made , were very seldom acquitted upon this account . these three exceptions are noted by the term of a three-knotted necessity in an old charter , wherein king cedwalla granted to wilfrid ( the first bishop of shelsey in sussex ) the village of paganham in the said county . for though in the grants of king ethelulph the church be free ( says ingulph ) and there be a concession of all things for the release of our souls , and pardon of our sins to serve god alone without expedition , and building of bridge , and fortifying of castle ; to the intent that the clergy might wholly attend divine service : yet in that publick debate of parliament , in the reign of henry the third , concerning the ancient state , freedom , and government of the english church ; and concerning the hourly exactions of the pope and the leeches , jugglers and decoys of rome , that strolled up and down the country to pick peoples pockets , to the great prejudice of the common-wealth ; they did indeed stand for the priviledge of the church , and produced as witnesses thereof the instruments and grants of kings ; who nevertheless were not so much inclined to countenance that liberty of the church , but that , as matthew paris observes , they always reserved to themselves for the publick advantage of the kingdom , three things ; to wit , expedition , and the repairing or making up of bridge or castle ; that by them they might withstand the incursions of the enemy . and king ethelbald hath this form : i grant that all the monasteries and churches of my kingdom be discharged from publick customs or taxes , works or services , and burdens or payments or attendances , unless it be the building and repairing of castles or bridges , which cannot be released to any one . i take no notice how king ethelred the twelfth perhaps ( but by no means the fifteenth , wherein an historian of ours has blundred ) hath signed the third year of his reign by the term of an olympiad , after the manner of the greek computation or reckoning : as likewise i pass other things of the like kind , which are many times used and practised according to the fancy of the clerks or notaries . however the last words , which are the close of these grants and patents , are not to be slighted . these we may see in that of cedwalla , king of the south-saxons , made to theodore arch-bishop of canterbury , in the year . thus . for a further confirmation of my grant , i cedwalla have laid a turf of the land aforesaid upon the holy altar of my saviour : and with my own hand , being ignorant of letters , have set down and expressed the mark or sign of the holy cross. concerning withred and a turf of land in kent , camden has the same thing ; and king ethelulph is said to have offered his patent , or deed of gift , on the altar of the holy apostle st peter . for a conclusion , i know no reason why i may not set underneath , the verses of an old poet , wherein he hath comprised the instrument or grant of founding an abby , which ethelbald , king of the mercians , gave to kenulph abbot of crowland : verses , i say , but such as were made without apollo's consent or knowledge . istum kenulphum si quis vexaverit anglus , rex condemno mihi cuncta catella sua . inde meis monachis de damnis omnibus ultrà vsque satisfaciat ; carcere clausus erit . adsunt ante deum testes hujus dationis anglorum proceres pontificesque mei . sanctus * guthlacus confessor & anachorita hic jacet , in cujus auribus ista loquor . oret pro nobis sanctissimus iste sacerdos , ad tumbam cujus haec mea dona dedi . which in rhyme dogrel will run much after this hobling rate . if any english vex this kenulph , shall i king condemn to me his chattels all . thenceforth , until my monks he satisfie , for damages , in prison he shall lye . witnesses of this gift here in gods sight are english peers and prelates of my right . saint guthlac confessor and anchoret , lies here , in whose ears these words i speak yet . may he pray for us that most holy priest , at whose tomb these my gifts i have addrest . thus they closed their donations or grants ; thus we our remarks of the saxons , being now to pass to the normans . the second book of the english janus . from the norman conquest , to the death of king henry ii. chap. i. william the conquerour 's title . he bestows lands upon his followers , and brings bishops and abbots under military service . an account of the old english laws , called merchenlage , danelage and westsaxen-lage . he is prevailed upon by the barons , to govern according to king edward's laws , and at s. albans takes his oath so to do . yet some new laws were added to those old ones . william duke of normandy upon pretence of a double right , both that of blood ( inasmuch as emme the mother of edward the confessor , was daughter to richard the first duke of the normans ) and withal that of adoption , having in battel worsted harald the son of godwin earl of kent , obtain'd a large inheritance , and took possession of the royal government over all england . after his inauguration he liberally bestowed the lands and estates of the english upon his fellow-soldiers ; that little which remained ( so saith matthew paris ) he put under the yoke of a perpetual servitude . upon which account , some while since the coming in of the normans , there was not in england except the king himself , any one , who held land by right of free-hold ( as they term it : ) since in sooth one may well call all others to a man only lords in trust of what they had ; as those who by swearing fealty , and doing homage , did perpetually own and acknowledge a superior lord , of whom they held , and by whom they were invested into their estates . all bishopricks and abbacies , which held baronies , and so far forth had freedom from all secular service ( the fore-cited matthew is my author ) he brought them under military service , enrolling every bishoprick and abbacy according to his own pleasure , how many souldiers he would have each of them find him and his successors in time of hostility or war. having thus according to this model ordered the agrarian law for the division and settlement of lands , he resolved to govern his subjects ( we have it from gervase of tilbury ) by laws and ordinances in writing : to which purpose hè proposed also the english laws according to their tripartite or threefold distinction ; that is to say , merchenlage , danlage and westsaxenlage . merchenlage , that is , the law of the mercians ; which was in force in the counties of glocester , worcester , hereford , warwick , oxford , chester , salop and stafford . danlage , that is , the law of the danes ; which bore sway in yorkshire , derby , nottingham , leicester , lincoln , northampton , bedford , buckingham , hertford , essex , middlesex , norfolk , suffolk , cambridge , huntingdon . westsaxenlage , that is , the law of the west-saxons ; to which all the rest of the thirty two counties ( which are all that malmesbury reckons up in ethelred's time ) did belong ; to wit , kent , sussex , surrey , berks , southampton , winton , somerset , dorset and devon. some of these english laws he disliked and laid aside ; others he approved of , and added to them , some from beyond sea out of neustria ( he means normandy , which they did of old , term neustria corruptly , instead of westrich , as being the more western kingdom of the franks , and given by charles the simple to rollo for his daughter gilla her portion ) such of them as seemed most effectual for the preserving of the kingdoms peace . this saith he of tilbury . now this is no rare thing among writers for them to devise , that william the conqueror brought in as it were a clear new face of laws to all intents and purposes . 't is true , this must be acknowledg'd , that he did make some new ones ( part whereof you may see in lambard's archaeonomia , and part of them here subjoyned ) but so however that they take their denomination from the english , rather than from the normans ; although one may truly say , according to what lawyers dispute , that the english empire and government was overthrown by him . that he did more especially affect the laws of the danes ( which were not much unlike to those of the norwegians , to whom william was by his grand-father allied in blood ) i read in the annals of roger hoveden . and that he openly declared , that he would rule by them ; at hearing of which , all the great men of the countrey , who had enacted the english laws , were presently struck into dumps , and did unanimously petition him , that he would permit them to have their own laws and ancient customs ; in which their fathers had lived , and they themselves had been born and bred up in ; forasmuch as it would be very hard for them to take up laws that they knew not , and to give judgement according to them . but the king appearing unwilling and uneasie to be moved , they at length prosecuted their purpose , beseeching him , that for the soul of king edward , who had after his death given up the crown and kingdom to him , and whose the laws were , and not any others that were strangers , he would hearken to them and grant that they might continue under their own countrey laws . whereupon calling a council , he did at the last yield to the request of the barons . from that day forward therefore the laws of king edward , which had before been made and appointed by his grand-father adgar , seeing their authority , were before the rest of the laws of the countrey respected , confirmed and observed all over england . but what then ? doth it follow that all things in william's time were new ? how can a man chuse but believe it ? the abbot of crowland sayes this of it , i have brought with me from london into my monastery the laws of the most righteous king edward , which my renowned lord king william hath by proclamation ordered , under most grievous penalties , to be authentick and perpetual , to be kept inviolably throughout the whole kingdom of england , and hath recommended them to his justices , in the same language wherein they were at first set forth and published . and in the life of fretherick abbot of s. albans you have this account : after many debates , arch-bishop lanfrank being then present ( at berkhamstead in hartfordshire ) the king did for the good of peace , take his oath upon all the reliques of the church of s. alban , and by touching the holy gospels , fretherick the abbot administring the oath , that he would inviolably observe the good and approved ancient laws of the kingdom , which the holy and pious kings of england his predecessors , and especially king edward had appointed . but you will much more wonder at that passage of william le rouille of alençon in his preface to the norman customs . that vulgar chronicle , saith he , which is intitled the chronicle of chronicles , bears witness , that s. edward king of england , was the maker or founder of this custom ; where he speaks of william the bastard duke of normandy , alias king of england , saying , that whereas the foresaid s. edward had no heirs of his own body , he made william heir of the kingdom , who after the defeat and death of harald the usurper of the kingdom , did freely obtain and enjoy the kingdom upon this condition , to wit , that he would keep the laws which had before been made by the fore-mentioned edward ; which edward truly had also given laws to the normans , as having been a long time also brought up himself in normandy . where then , i pray you , is the making of new laws ? why ! without doubt , according to tilbury , we are to think , that together with the ratifying of old laws , there was mingled the making of some new ones : and in this case one may say truly with the poet in his panegyrick : firmatur senium juris , priscamque resumunt canitiem leges , emendanturque vetustae , acceduntque novae . — which in english speaks to this sense ; the laws old age stands firm by royal care , statutes resume their ancient gray hair . old ones are mended with a fresh repair ; and for supply some new ones added are . see here ! we impart unto thee , reader , these new laws , with other things , which thou maist justly look for at my hands in this place . chap. ii. the whole country inrolled in dooms-day book . why that book so called . robert of glocester's verses to prove it . the original of charters and seals from the normans , practised of old among the french. who among the romans had the priviledge of using rings to seal with , and who not . . he caused all england to be described , and inrolled ( a whole company of monks are of equal authority in this business , but we make use of florentius of worcester for our witness at this time ) how much land every one of his barons was possessed of , how many soldiers in fee , how many ploughs , how many villains , how many living creatures or cattel , i , and how much ready mony every one was master of throughout all his kingdom , from the greatest to the least ; and how much revenue or rent every possession or estate was able to yield . that breviary or present state of the kingdom being lodged in the archives for the generality of it , containing intirely all the tenements or tenures of the whole country or land was called dooms-day , as if one would say , the day of doom or judgment . for this reason , saith he of tilbury , we call the same dooms-day book : not that there is in it sentence given concerning any doubtful cases proposed ; but because it is not lawful upon any account , to depart from the doom or judgment aforesaid . reader , if it will not make thy nice stomach wamble , let me bring in here an old fashioned rhyme , which will hardly go down with our dainty finical verse-wrights , of an historical poet robert of glocester : one whom , for his antiquity , i must not slight concerning this book . the k. w. vor to wite the worth of his londe let enqueri streitliche thoru al engelonde , hou moni plou lond , and hou moni hiden also were in everich sire , and wat hii were wurth yereto : and the rents of each toun , and of the waters echone , that wurth , and of woods eke , that there ne bileved none , but that he wist wat hii were wurth of al engelonde , and wite al clene that wurth thereof ich understond and let it write clene inou , and that scrit dude iwis in the tresorie at westminster there it yut is . so that vre kings suth , when hii ransome toke and redy wat folc might give , hii fond there in yor boke . considering how the english language is every day more and more refined , this is but a rude piece , and looks scurvily enough . but yet let us not be unmindful neither , that even the fine trim artifices of our quaint masters of expression , will themselves perhaps one day , in future ages , that shall be more critical , run the same risk of censure , and undergo the like misfortune : and that , multa renascentur quae nunc cecidere , cadentque quae nunc sunt in honore ; — as horace the poet born at venusium , tells us : that is , several words which now are fal'n full low , shall up again to place of honour start ; and words that now in great esteem , i trow , are held , shall shortly with their honour part . . the normans called their writings given under their hand , charters ( i speak this out of ingulph ) and they ordered the confirmation of such charters with an impression of wax , by every ones particular seal , under the testimony and subscription of three or four witnesses standing by . but edward the confessor had also his seal , though that too from normandy . for in his time , as the same writer saith , many of the english began to let slip and lay aside the english fashions , bringing in those of the normans in their stead , and in many things to follow the customs of the franks ; all great persons to speak the french tongue in their courts , looking upon it as a great piece of gentility , to make their charters and writings alamode of france ; and to be ashamed of their own country usages in these and other like cases . nay , and if leland , an eye-witness , may be believed , our great prince arthur had his seal also , which he saith he saw in the church of westminster with this very inscription . patritius . arthurius . britanniae . galliae . germaniae . daciae . imperator . that is , the right noble , arthur , emperor of britanny , france , germany , and transylvania . but that the saxons had this from the normans , is a thing out of all question . their grants or letters patents signed with crosses , and subscribed with witnesses names , do give an undoubted credit and assurance to what i have said . john ross informs us that henry beauclerk was the first that made use of one of wax ; and matthew of canterbury , that edward the first did first hang it at the bottom of his royal writings by way of label ; whereas before , his predecessors fastned it to the left side . such a writing of henry the first in favour of anselm , the last author makes mention of ; and such an one of william's duke of the normans , though a very short one and very small written ; brian twine in his apology for the antiquity of the famous university of oxford ( the great study and support of england , and my ever highly honoured mother ) saith , he had seen in the library of the right honourable my lord lumley . but let a circumcised jew , or who else will for me , believe that story concerning the first seal of wax , and the first fastning of it to the writing : a great many waxen ones of the french peers ( that i may say something of those in wax ) and golden ones of their kings ( to wit , betwixt the years and ) we meet with fashioned like scutcheons or coats of arms in those patterns or copies which francis de rosieres has in his first tome of the pedigree or blazonry of the dukes of lorain , set down by way of preface . nor was it possible that the normans should not have that in use , which had been so anciently practised by the french. let me add this out of the ancient register of abendon : that richard earl of chester ( who flourished in the time of henry the first ) ordered to sign a certain writing with the seal of his mother ermentrude ; seeing that ( being not girt with a soldiers belt , i. e. not yet made knight ) all sorts of letters directed by him , were inclosed with his mothers seal . how ? what is that i hear ? had the knightly dignity and order the singular priviledge , as it was once at rome , to wear gold-rings ? for rings ( as 't is related out of ateius capito ) were especially designed and ingraven for seals : let phoebus , who knows all things , out of his oracle tell us . for ●ervants or slaves ( so says justus lipsius , and remarks it from those that had been dug up in holland ) and common soldiers were allowed iron ones to sign or to seal with ( which therefore flavius vopiscus calls annulos sigillaricios , i. e. seal-rings ) and so your ordinary masters of families had such , with a key hanging at it to seal and lock up their provision and utensils . but , saith ateius of the ancient time , neither was it lawful to have more than one ring , nor for any one to have one neither but for freemen , whom alone trust might become , which is preserved under seal ; and therefore the servants of a family had not the right and priviledge of rings . i come home to our selves now . chap. iii. other ways of granting and conveying estates , by a sword , &c. particularly by a horn. godwin's trick to get boseham of the arch-bishop of canterbury . pleadings in french. the french language and hand when came in fashion . coverfeu-laws against taking of deer , against murder , against rape . . at first many lands and estates were collated or bestowed by bare word of mouth , without writing or charter , only with the lords sword or helmet , or a horn or a cup ; and very many tenements with a spur , with a currycomb , with a bow , and some with an arrow : but these things were in the beginning of the norman reign , in after times this fashion was altered , says ingulph . i , and these things were before the normans government . let king edgar his staff cut in the middle , and given to glastenbury abbey for a testimony of his grant , be also here for a testimony . and our antiquary has it of pusey in berkshire , that those who go by the name of pusey do still hold by a horn , which heretofore had been bestowed upon their ancestors by knute the danish king. in like manner , to the same purpose an old book tells this story : that one vlphus the son of toraldus , turned aside into york , and filled the horn that he was used to drink out of , with wine ; and before the altar upon his bended knees , drinking it , gave away to god and to st. peter , the prince of the apostles , all his lands and revenues . which horn of his , saith camden , we have been told was kept or reserved down to our fathers memory . we may see the conveyance of estate , how easie it was in those days , and clear from the punctilio's of law , and withal how free from the captious malice of those petty-foggers who would intangle titles and find flaws in them , and from the swelling bundles and rolls of parchments now in use . but commend me to godwin earl of kent , who was , to use hegesander's word , too great a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , catcher at syllables , and as the comedian says , more shifting than a potters wheel : give me ( saith he to the arch-bishop of canterbury ) boseham . the arch-bishop admiring what it was he would be at in that question , saith , i give you boseham . he straight upon the confidence of this deceit , without any more ado entred upon an estate of the arch bishops of that name on the sea-coasts of sussex , as if it had been his own by inheritance : and with the testimony of his people about him , spoke of the arch-bishop before the king as the donor of it , and quietly enjoyed it . those things i spoke of before ( to wit , of sword , horn , &c. ) smell of that way of investing into fees which we meet with in obertus de orto ; but are very unlike to that solemn ceremony which is from ancient time even still used in conveying of an estate and delivering possession , wherein a green turf or the bough of a growing tree is required . . they did so much abhor the english tongue ( 't is the abbot of crowland saith it ) that the laws of the land , and the statutes of the english kings , were handled or pleaded in the french language . for till the thirty sixth year of edward the third , all businesses of law were pleaded in french. that also in schools the rudiments of grammatical institution , were delivered to boys in french and not in english. also that the english way and manner of writing was laid aside , and the french mode was made use of in all charters or instruments and books . indeed it was such a fault to be ignorant in the french , or not to be able to speak it ; that mainly upon this account , in the reign of william rufus , vlstan bishop of worcester was censured as unworthy of his place , and deprived of his dignity , who as to other things according to the simplicity of that age , was scholar enough . the abbot whom i quoted , speaks thus of the french character : the saxon hand was used by all the saxons and mercians in all their hand-writings , till the time of king alfred , who had by french tutors been very well trained up in all literature ; but from the time of the said king , it did by disuse come to be of little account ; and the french hand , because it being more legible and more delightful to sight , had the preheminence , grew more and more every day in vogue and use among all the english. nevertheless however this business went , we are told that in the memory of our fathers , and that by an ancient order , there were lectures of the english-saxon language , read at tavistock abby in devonshire . . that his new kingdom might not be disturbed by riots and disorders in the night , he ordered that at the ringing of a bell ( which they called the curfew-bell ) all the lights and fires should in every little cottage , a little after the dusk of the evening , be put out . . he that should take a deer , or aprum , a boar ( so says huntingdon , but perhaps 't is caprum , a buck ) or a roe , was to have his eyes thrust or plucked out , saith matthew paris . . if any one had slain any one ( 't is huntingdon writes this ) be it upon what cause or occasion soever , he was sentenced to a capital punishment , he was to die for it . . if one had forced any woman ( so i read aliquam any woman , not aliquem any man , as 't is in the common prints ) he was to have his privities cut off . forced her ? i , sure enough ; and perhaps he that lay with a woman with her consent , was notwithstanding that , served in the same kind too . and in this case i would have you hear what that great lawyer albericus gentilis , his opinion is . this i say , saith he , that a man hath a greater injury done him , if the woman were not ravished per force , but were debauched and made willing : because in this case her mind is estranged from her husband ; but in that other , not . chap. iv. sheriffs and j●ries were before this time . th● four terms . judges to act without appeal . justices of peace . the kings payments made at first in provisions . afterwards changed into mony , which the sheriff of each county was to pay in to the exchequer . the constable of dover and warden of the cinque ports why made . a disorder in church-affairs reformed . polydore virgil brings in at this time the first sheriffs of counties , and here places the beginning of juries , or determining of tryals by the judgment of twelve ; but is out in them both . this of juries is convinced by a law of ethelred in lambard's explications of law-terms , and by those irrefragable arguments which the famous sir edward coke brings against it . that other mistake of sheriffs is confuted by what we have formerly noted out of ingulph , and by what we shall hereafter somewhere have occasion to remark . mars being impleaded in the areopagus , the place of judgment at athens , for the murder of halirothius the son of neptune , whom he had slain for ravishing his daughter alcippa ; upon his tryal by twelve gods , was acquitted by six sentences or votes : for if the number were equal and no majority , the person was not condemned but discharged . my meaning why i put in this story , is to shew the most ancient use of this number of twelve in tryals elsewhere , as well as amongst us . an italian might well mistake in a concern of england ; yet take it not ill at my hands , that i have given you this upon his credit . . he appointed that four times every year , there should be kept conventions or meetings for several days , in such place as he himself should give order : in which meetings the judges sitting apart by themselves , should keep court and do justice . these are our four terms . . he appointed other judges , who without appeal should exercise jurisdiction and judgment ; from whom as from the bosom of the prince , all that were ingaged in quarrels , addressing thither , might have right done them , and refer their controversies to them . . he appointed other rulers or magistrates , who might take care to see misdemeanors punished ; these he called justices of peace . now one may well imagine , that this name of office is most certainly of a later date , and a foreign writer is to be excused by those rights which are afforded to guests and strangers ( since acting a busiris his part against them , would be downright barbarous ) i say he is to be excused so far , as not to have his mistakes in the history of the english nation , too heavily charged upon him . . in the primitive state of the kingdom after the conquest ( gervase of tilbury in his dialogue of the exchequer , saith , this is a thing handled down from our forefathers ) the kings had payments made them out of their lands , not in sums of gold or silver , but only in victuals or provisions : out of which the kings house was supplied with necessaries for daily use ; and they who were deputed to this service ( the purveyors ) knew what quantity arose from each several land . but yet as to soldiers pay or donatives , and for other necessaries concerning the pleas of the kingdom , or conventions , as also from cities and castles where they did not exercise husbandry or tillage ; in such instances , payments were made in ready mony . wherefore this institution lasted all the time of william the first , to the time of king henry his son , so that i my self ( gervase flourished in the reign of henry the second ) have seen some people , who did at set times carry from the kings lands , victuals or provisions of food to court. and the officers also of the kings house knew very well , having it upon account , which counties were to send in wheat , which to send in several sorts of flesh , and provender for the horses . these things being paid according to the appointed manner and proportion of every thing , the kings officers reckoned to the sheriffs by reducing it into a sum of pence ; to wit , for a measure of wheat to make bread for a hundred men , one shilling ; for the body of a pasture-fed beef , one shilling ; for a ram or a sheep four pence ; for the allowance of twenty horses likewise four pence : but in process of time , when as the said king was busie in remote parts beyond sea to appease tumults and insurrections ; it so happened , that ready mony was highly necessary for him to supply his occasions . in the mean time , there came in multitudes , a great company of husbandmen with complaints to the kings court , or which troubled him more , they frequently came in his way as he was passing by , holding up their ploughshares , in token that their husbandry was running to decay ; for they were put to a world of trouble , upon occasion of the provisions which they carried from their own quarters through several parts of the kingdom . thereupon the king being moved with their complaints , did by the resolved advice of his lords , appoint throughout the kingdom such persons , as he knew were , for their prudence and discretion , fit for the service . these persons going about , and that they might believe their own eyes , taking a view of the several lands , having made an estimate of the provisions which were paid out of them , they reduced it into a sum of pence . but for the total sum , which arose out of all the lands in one county , they ordered , that the sheriff of that county should be bound to the exchequer : adding this withal , that he should pay it at the scale . now the manner of paying , the tryal of the weight and of the metal by chymical operation , the melter or coyner , and the surveyor of the mint , are more largely handled and explained by my self in some other work of mine . . that he might the more firmly retain kent to himself , that being accounted as it were the key of england ; ( 't is the famous mr. camden tells the story ) he set a constable over dover-castle , and made the same person warden of the cinque ports , according to the old usage of the romans . those are hastings , dover , hith , rumney , and sandwich ; to which are joyned winchelsey and rye as principals , and other little towns as members . . to put the last hand to william , i add out of the archives , this law , not to be accounted among the last or least of his . william , by the grace of god , king of the english , to all counts or earls , viscounts or sheriffs , and to all french born , and english men , who have lands in the bishoprick of remigius , greeting . this remigius was the first who translated the episcopal see from dorchester to lincoln . be it known unto you all , and the rest of my liege subjects , who abide in england ; that i , by the common advice of my arch-bishops , and the rest of the bishops and abbots , and all the princes of my kingdom , have thought fit to order the amendment of the episcopal laws , which have been down to my time , in the kingdom of the angles , not well , nor according to the precepts of the holy canons , ordained or administred : wherefore i do command , and by my royal authority strictly charge ; that no bishop or arch-deacon , do henceforth hold pleas in the hundred concerning episcopal laws ; nor bring any cause which belongs to the government of souls ( i.e. to spiritual affairs ) to the judgment of secular men ; but that whosoever , according to the episcopal laws , shall for what cause or fault soever be summoned , shall come to a place which the bishop shall chuse and name for this purpose ; and there make answer concerning his cause , and do right to god and his bishop , not according to the hundred , but according to the canons and episcopal laws . for in the time of the saxon empire , there were wont to be present at those country meetings ( the hundred courts ) an alderman and a bishop , the one for spirituals , the other for temporals , as appears by king edgar's laws . chap. v. william rufus succeeds . annats now paid to the king. why claimed by the pope . no one to go out of the land without leave . hunting of deer made felony . after the death of william , his second son william sirnamed rvfvs succeeded in his room . all justice of laws ( as florentius of worcester tells us ) was now husht in silence , and causes being put under a vacation without hearing , money alone bore sway among the great ones , ipsaque majestas auro corrupta jacebat . that is ; and majesty it self being brib'd with gold , lay , as a prostitute , expos'd to th' bold . . the right or duty of first-fruits , or , as they are commonly called , the annats , which our kings claimed from vacant abbies and bishopricks , polydor virgil will have to have had its first original from rufus . now the popes of rome laid claim to them anciently ; a sort of tribute , which upon what right it was grounded , the council of basil will inform us , and by what opinion and resolution of divines and lawyers confirmed , francis duarenus in his sacred offices of the church will instruct us . 't is certain , that chronologers make mention , that at his death the bishopricks of canterbury , winchester and salisbury , and twelve monasteries beside , being without prelates and abbots , paid in their revenues to the exchequer . . he forbad by publick edict or proclamation ( sayes the same author ) that any one should go out of england without his leave and passport . we read , that he forbad anselm the arch-bishop , that he should not go to wait upon pope vrban ; but that he comprehended all subjects whatsoever in this his royal order , i confess i have not met with any where in my reading , but in polydor. . he did so severely forbid hunting of deer ( saith william of malmesbury ) that it was felony , and a hanging matter to have taken a stag or buck. chap. vi. henry the first why called beauclerk . his letters of repeal . an order for the relief of lands . what a hereot was . of the marriage of the kings homagers daughter , &c. of an orphans marriage . of the widows dowry . of other homagers the like . coynage-money remitted . of the disposal of estates . the goods of those that dye intestate , now and long since , in the churches jurisdiction ; as also the business of wills. of forfeitures . of misdemeanors . of forests . of the fee de hauberk . king edward's law restored . william , who had by direful fates been shewn to the world , was followed by his brother henry , who for his singular learning , which was to him instead of a royal name , was called beau-clerk . he took care of the common-wealth , by amending and making good what had slipt far aside from the bounds of justice , and by softning with wholsome remedies those new unheard of , and most grievous injuries , which ralph afterwards bishop of durham ( being lord chief justice of the whole kingdom ) plagued the people with . he sends letters of repeal to the high sheriffs , to the intent , that the citizens and people might enjoy their liberty and free rights again . see here a copy of them , as they are set down in matthew paris . henry by the grace of god king of england , to hugh of bockland , high sheriff , and to all his liege people , as well french as english in herefordshire , greeting . know ye , that i through the mercy of god , and by the common advice of the barons of the kingdom of england have been crowned king. and because the kingdom was opprest with unjust exactions , i out of regard to god , and that love which i bear towards you all , do make the holy church of god free , so that i will neither sell it , nor will i put it to farm , nor upon the death of arch-bishop , or bishop , or abbot , will i take any thing of the domain of the church , or of the men thereof , till a successor enter upon it . and all evil customs , wherewith the kingdom of england was unjustly oppressed , i do henceforward take away ; which evil usages i do here in part set down . . if any one of my barons , counts or others that hold of me , shall dye , his heir shall not redeem his land , as he was wont to do in the time of my father , but relieve it with a lawful and due relief . in like manner also shall the homagers or tenants of my barons relieve their lands from their lords with a lawful and just relief . it appears , that in the times of the saxons a hereot was paid to the lord at a tenants death , upon the account of provision for war ( for here in saxon signifies an army : ) and that which in our memory now in french is called a relief ( henry of bracton sayes , 't is an engagement to recognize the lord ) doth bear a resemblance of the ancient hereot . thereupon it is a guess , saith william lambard , that the normans being conquerors , did remit the hereot to the angles whom they had conquered and stripped of all kind of armour , and that for it they exacted money of the poor wretches . to this agrees that which is mentioned in the state of england concerning the nobles of berkshire . a tain or knight of the kings holding of him , did at his death for a relief part with all his arms to the king , and one horse with a saddle and another without a saddle . and if he had hounds or hawks , they were presented to the king , that if he pleased he might take them . and in an ancient sanction of conrade the first , emperour of germany , if a souldier that is tenant or lessee happen to dye , let his heir have the fee , so that he observe the use of the greater vavasors , in giving his horses and arms to the seniors or lords . john mariana takes notice , that the word seniors in the vular languages , spanish , italian and french , signifies lords , and that to have been in use from the time of charlemain's reign . but these things you may have in more plenty from the feudists , those who write concerning tenures . . if any of my barons or other men ( homagers or tenants ) of mine ( i return to king henry's charter ) shall have a mind to give his daughter , or sister , or niece , or kinswoman in marriage , let him speak with me about it . but neither will i take any thing of his for this leave and licence , nor will i hinder him from betrothing her , except he shall have a design of giving her to an enemy of mine . . if upon the death of a baron , or any other homager of mine , there be left a daughter that is an heiress , i will bestow her with the advice of my barons together with her land. . if upon the death of the husband , his wife be left without children , she shall have her dowry and right of marriage , as long as she shall keep her body according to law ; and i will not bestow her , but according to her own liking . and if there be children , either the wife , or some one else near of kin shall be their guardian and trustee of their land , who ought to be just . . i give order , that my homagers do in like manner regulate themselves towards the sons and daughters and wives of their homagers . . the common duty of money or coinage , which was taken through all cities and counties , which was not in the time of king edward , i do utterly forbid that henceforward this be no more done . . if any one of my barons or homagers shall be sick and weak , according as he himself shall give or order any one to give his money , i grant it so to be given ; but if he himself being prevented either by arms or by sickness , hath neither given his money , nor disposed of it to give , then let his wife , or children , or parents , and his lawful homagers for his souls health divide it , as to them shall seem best . and in canutus his laws , let the lord or owner at his own discretion make a just distribution of what he hath to his wife and children and the next of kin . but at this time , and long since , church men have been as it were the distributors and awarders of the goods of such persons as dye intestate , or without making their wills , and every bishop as ordinary in his own diocess , is the chief judge in these cases . john stratford arch-bishop of canterbury saith it , and it is averred in the records of our law , that this jurisdiction also concerning wills , was of old long time ago in an ancient constitution , intrusted to the church by the consent of the king and peers . however , in what kings time this was done , neither does he relate , nor do i any where find , as william lindwood in his provincial acknowledgeth . it is a thing very well known , that after tryal of right , wills were wont to be opened in the ecclesiastical court even in the reign of henry the second ( ralph glanvill is my witness ) contrary to what order was taken in the imperial decrees of the romans . and peradventure it will appear so to have been before glanvill , as he will tell you , if you go to him ▪ although you have , quoted by my self some where , a royal rescript or order to a high sheriff , that he do justly and without delay cause to stand ( i. e. appoint and confirm ) a reasonable share to such an one ; that is , that the legatee may obtain and enjoy his right , what was bequested to him by the sheriffs help . i come back now to my track again . . if any one of my barons or homagers shall make a forfeit , he shall not give a pawn in the scarcity of his money , as he did in the time of my brother or my father , but according to the quality of his forfeiture : nor shall he make amends , as he would have done heretofore in my brothers or fathers time . . if he shall be convicted of perfidiousness or of foul misdemeanors , as his fault shall be , so let him make amends . . the forests by the common advice of my barons , i have kept in mine own hand , in the same manner as my father had them . . to those souldiers or knights who hold and maintain their lands by coats of male ( that is , per fee de hauberke , that they may be ready to attend their lords with habergeons or coats of male compleatly armed cap a pee ) i grant the plough-lands of their domains acquitted from all gelds , and from every proper gift of mine , that , as they are eased from so great a charge and grievance , so they may furnish themselves well with horse and arms , that they may be fit and ready for my service , and for the defence of my realm . . i restore unto you the law of king edward , with other amendments , wherewith my father amended it . those amendments are put forth by lombard . hitherto out of those royal and general letters , directed to all the subjects . chap. vii . his order for restraint of his courtiers . what the punishment of theft . coyners to lose their hands and privy-members . guelding a kind of death . what half-pence and farthings to pass . the right measure of the eln. the kings price set for provisions . . he did by his edict or proclamation , restrain the rapines , thefts , and rogueries of the courtiers ; ordering , that those who were caught in such pranks , should have their eyes with their stones pulled out . this malmesbury supplies us with . but florentius of worcester and roger hoveden give the account , that he punished thieves with death and hanging , otherwise than that pleasant and curious man thomas moor in his vtopia would have his people to be dealt with . yet i am inclined rather to believe malmesbury ; not only upon the authority of the man , in comparison of whose rose-beds ( if you well weigh the learning of that age ) the other pack of writers are but sorry low shrubs ; but also upon the account of a nameless monk ▪ who in his book of the miracles of s. thomas of canterbury , tells us a story of one eilward , a poor mean fellow of kingsweston in berkshire , who being in the reign of king henry the second condemned of theft ( he had it seems stoln a pair of countrey gloves and a whetstone ) was punished by losing his eyes and privities ; who coming with devotion to s. thomas his tomb , got an intire restitution of his disappearing members and faculties , and was as good a man as ever he was . perchance in this he is no witness of infallible credit . let the story of iphis and ianthis , and that of ceneus try masteries with this for the whetstone ; to our purpose the writer is trusty enough . but in the first times of the normans , i perceive , that the halter was the ill consequence of theft . let it be lawful for the abbot of that church , if he chance to come in in the god speed , to acquit an high-way-man or thief from the gallows . they are the words of the patent with which william the conquerour , to expiate the slaughter of harald , consecrated a monastery to s. martin near hastings on the sea-coast of sussex , and priviledged it with choice and singular rights . . against cheats , whom they commonly call coyners ( 't is malmesbury speaks again ) he shewed his particular diligence , permitting no cheating fellow to escape scot-free , without losing his fist or hand , who had been understood to have put tricks upon silly people with the traffick of their falshood . for all that , he who hath tackt a supplement to florentius of worcester , and william gemeticensis give out , that the counterfeiters and imbasers of coin had , over and above those parts cut off , which galen accounts to be the principal instruments for propagating of the kind . to whom hoveden agrees , who writes in the life of henry the first , that coyners by the kings order being taken , had their right h●nds and their privy-members cut off . upon this account sure , that he that was guilty of such a wicked crime , should have no hope left him of posterity , nor the common-wealth be in any further fear of those who draw villainous principles from the loins of those that beget them . now at this very time and in former ages too , this piece of treason was punished with halter and gallows ; and that also of theft not only in england , but almost in all countreys , especially robbery upon the high-way , which is committed by those who lay wait to surprize passengers as they travel along upon one or other side of them ; whence not only in the latin , but in the holy language also , a high-way-man hath his name . and truly among the ancients guelding was lookt upon as a kind of death . the apostles canons give him the character and censure of a manslayer , who cuts off his own privities ( who lives all his life a batchelor , say the talmudists ) and he who cuts off another mans , is in danger of the cornelian law concerning murderers and cut-throats ; and so was it heretofore among the english. . he ordered ( they are hoveden's words ) that no half-penny , which also he commanded should be made round , or farthing also , if it were intire , should be refused . . he corrected the merchants false eln ( so sayes the monk of malmesbury ) applying the measure of his arm , and proposing that to all people over england . . he gave order to the courtiers , in whatsoever cities or villages he were , how much they were to take of the countrey people gratis , and at what price to buy things ; punishing offendors herein either with a great fine of money , or with loss of life . chap. viii . the regality claimed by the pope , but within a while resumed by the king. the coverfeu dispensed with . a subsidy for marrying the kings daughter . the courtesie of england . concerning shipwrack . a tax levied to raise and carry on a war. . anselm arch-bishop of canterbury labours earnestly with the pope and his party , and at length obtains it with much ado , that from that time forward ( you have it in florilegus after other writers ) never any one should be invested with a pastoral staff or a ring into a bishoprick or abbacy by the king , or any lay-person whatsoever in england , ( added out of malmesbury ) retaining however the priviledge of election and regality . there was a sharp bickering about this business betwixt the king and anselm ; and so between the popes paschalis and calixtus and henry about that time emperour . both of them at least pretendedly quit their right ; our king humouring the scene according to the present occasion . for after anselm's death , he did invest rodulphus that came in his room by a ring and a pastoral staff. . he restored the night-torches or lights which william the first had forbidden ; forasmuch as he now had less reason to apprehend any danger from them , the kingdom being in a better and firmer posture . . to make up a portion for mawd the kings daughter , married to henry the emperour , every hide of land paid a tribute of three shillings . here polydore makes his descant . afterward , sayes he , the rest of the kings followed that course of raising portions for the bestowal of their daughters ; so tenacious hath posterity alway been of their own advantages . it is scarce to be doubted , that the right of raising money for the marrying of the lords daughters by way of aid or subsidy upon the tenants or dependants , is of a more ancient original . neither would i fetch it from the mutual engagement of romulus his patrons and clients , or landlords and tenants , or from suetonius his caligula : rather from the old customs of the normans , more ancient than king henry : where that threefold tribute is explained by the name of aid , which the patent granted by king john in favour of publick liberty mentions in these words : i will impose no escuage or aid in our realm , but by the common advice of our realm ; unless it be to ransom our body , and to make our first-born son a soldier or knight , and to marry our eldest daughter once . . some ascribe that law to henry , which lawyers call the courtesie of england ; whereby a man having had a child by his wife , when she dyes , enjoyes her estate for his life . . he made a law , that poor shipwrackt persons should have their goods restored to them , if there were any living creature on ship-board , that escaped drowning . forasmuch as before that time , whatsoever through the misfortune of shipwrack was cast on shoar , was adjudged to the exchequer ; except that the persons who suffered shipwrack and had escaped alive , did themselves within such a time refit and repair the vessel . so the chronicle of the monastery of s. martin de bello . this right is called wreck , or if you will , uareck , of the sea. how agreeable to the law of nations , i trouble not my self to enquire . that more ancient custom , is as it were suitable to the norman usage . now at this time our lawyers ( and that the more modern law of edward the first ) pass judgement according to the more correct copy of king henry . and they reckon it too among the most ancient customs of the kingdom . did therefore king richard order , or did hoveden relate this to no purpose , or without any need ? if one who suffers shipwrack dye in the ship , let his sons or daughters , his brethren or sisters have what he left , according as they can shew and make out that they are his next heirs . or if the deceased have neither sons nor daughters , nor brothers nor sisters , the king is to have his chattels . can one imagine , that this law he made at messina , when he was engaged in war , was calculated only for that time or place ? certainly in the archives there is elsewhere to be met with as much as this . . that he might with a stout army bear the brunt of baldwin earl of flanders and louis king of france , who had conspired , being bound by mutual oaths to one another with the duke of anjou , to take away from king henry by force of arms the dutchy of normandy , he first of all ( t is polydore avers it ) laid a heavy tax upon the people , to carry on the new war ; which thing with the kings that followed after , grew to be a custom . he was the last of the normans of a male descent , and as to the method of our undertaking , here we treat of him last . chap. ix . in king stephen's reign all was to pieces . abundance of castles built . of the priviledge of coining . appeals to the court of rome now set on foot . the roman laws brought in , but disowned . an instance in the wonder-working parliament . as of old , unless the shields were laid up , there was no dancing at weddings ; so except arms be put aside , there is no pleading of laws . that antipathy betwixt arms and laws , england was all over sensible of , if ever at any time , in the reign of k. stephen , count of blois , king henry's nephew by his sister adela . for he did not only break the law and his oath too to get a kingdom , but also being saluted king , by those who perfidiously opposed mawd the right and true heir of king henry , he reigned with an improved wickedness . for he did so strangely and odly chop and change every thing ( it is malmsbury speaks it ) as if he had sworn only for this intent , that he might shew himself to the whole kingdom , a dodger and shammer of his oath . but , as he saith , — perjuros merito perjuria fallunt ? that is , such men as perjuries do make their trade , by their own perjuries most justly are betray'd . they are things of custom to which he swore , and such as whereby former priviledges are ratifed , rather than new ones granted . however , some things there are , that may be worth the transcribing . . castles were frequently raised ( 'tis nubrigensis relates it ) in the several counties by the bandying of parties ; and there were in england in a manner as many kings , or rather as many tyrants , as lords of castles , having severally the stamping of their own coin , and a power of giving law to the subjects after a royal manner . then was the kingdom plainly torn to pieces , and the right of majesty shattered , which gains to it self not the least lustre from stamping of money . though i know very well , that before the normans , in the city of rochester , canterbury , and in other corporations and towns , abbots and bishops had by right of priviledge their stampers and coiners of money . . next to the king , theobald arch bishop of canterbury presided over the council of london ( where there were also present the peers of the realm ) which buzzed with new appeals . for in england ( t is henry of huntington sayes it ) appeals were not in use , till henry bishop of winchester , when he was legate , cruelly intruded them to his own mischief . wherefore what cardinal bellarmin has writ , beginning at the synod of sardis , concerning the no body knows how old time of the universal right of appealing to the pope of rome , does not at all , as to matter of fact , seem to touch upon this kingdom of ours by many and many a fair mile . . in the time of king stephen ( so 't is in the polycraticon of john of salisbury ) the roman laws were banisht the realm , which the ho●se of the right reverend theobald lord primate of britanny had fetcht or sent for over into britanny . besides , it was forbidden by royal proclamation , that no one should retain or keep by him the books . if you understand the laws of the empire ( i rather take them to be the decrees of the popes ) it will not be much amiss , out of the parliament records to adjoyn these things of later date . in the parliament holden by richard of bourdeaux , which is said to have wrought wonders , upon the impeachment of alexander nevil arch-bishop of canterbury , robert uere duke of ireland , michael pole earl of suffolk , thomas duke of glocester , richard earl of arundel , thomas beauchamp earl of warwick , and others , that they being intrusted with the management of the kingdom , by soothing up the easie and youthful temper of the king , did assist one another for their own private interest , more than the publick , well near to the ruine and overthrow of the government it self ; the common lawyers and civilians are consulted with , about the form of drawing up the charge ; which they answer all as one man , was not agreeable to the rule of the laws . but the barons of parliament reply , that they would be tyed up to no rules , nor be led by the punctilioes of the roman law , but would by their own authority pass judgement ; pur ce que la royalme d' angleterre n' estoit devant ces heures , n'y à l' entent de nostre dit seigneur le roy & seigneurs de parlament unque ne serra rules ne gouvernes per la loy civil : that is , inasmuch as the realm of england was not before this time , nor in the intention of our said lord the king and the lords of parliament ever shall be ruled or governed by the civil law. and hereupon the persons impleaded are sentenced to be banished . but here is an end of stephen : he fairly dyed . chap. x. in king henry the seconds time , the castles demolished . a parliament held at clarendon . of the advowson and presentation of churches . estates not to be given to monasteries without the kings leave . clergymen to answer in the kings court. a clergyman convict , out of the churches protection . none to go out of the realm , without the kings leave . this repealed by king john. excommunicate persons to find surety . laymen how to be impleaded in the ecclesiastical court. a lay-jury to swear there , in what case . no homager or officer of the kings to be excommunicated , till he or his justice be acquainted . at length , though late first , henry the son of jeoffry plantagenet , count of anger 's by the empress mawd , came to his grandfatherrs inheritance . having demolished and levelled to the ground , the castles which had , in king stephen's time , been built , to the number of eleven hundred and fifteen ; and having retrieved the right of majesty into its due bounds , he confirmed the laws of his grandfather . moreover , at clarendon in wiltshire , near salisbury , john of oxford being president , by the kings own mandate , there being also present the arch-bishops , bishops , abbots , priors , earls , barons , and peers of the realm , other laws are recognized and passed ; whilst at first those who were for the king on one side , those who were for the pope on the other , with might and main stickle to have it go their way ; these latter pleading , that the secular court of justice did not at all suit with them , upon pretence that they had a priviledge of immunity . but this would not serve their turn ; for such kind of constitutions as we are now setting down , had the vogue . . if any controversie concerning the advowson and presentation of churches , arise betwixt laymen , or betwixt laymen and clergymen , or betwixt clergymen among themselves ; let it be handled and determined in the court of the lord our king. . the churches which are in the kings fee , cannot be given to perpetuity without his assent and concession . even in the saxons times it seems it was not lawful , without the kings favour first obtained , to give away estates to monasteries ; for so the old book of abington says . a servant of king ethelred's called vlfric spot , built the abby of burton in staffordshire , and gave to it all his paternal estate , appraised at seven hundred pounds ; and that this donation might be good in law , he gave king ethelred three hundred marks of gold for his confirmation of it , and to every bishop five marks , and over and above to alfric arch-bishop of canterbury , the village of dumbleton . . clergymen being arighted and accused of any matter whatsoever , having been summoned by the kings justice , let them come into his court , there to make answer to that , of which it shall be thought fit that there answer ought to be made : so that the kings justice send into the court of holy church , to see after what manner the business there shall be handled . . if a clergyman shall be convicted , or shall confess the fact ; the church ought not from thenceforth to give him protection . . it is not lawful for arch-bishops , bishops , and persons of the kingdom , to go out of the realm without leave of our lord the king : and if they do go out , if the king please , they shall give him security , that neither in going , nor in returning , or in making stay , they seek or devise any mischief or damage against our lord the king. whether you refer that writ , we meet with in the register or record , ne exeas regnvm , for subjects not to depart the kingdom to this time or instance , or with polydore virgil to william rufus , or to later times , is no very great matter : nor will it be worth our while , curiously to handle that question : for who , in things of such uncertainty , is able to fetch out the truth ? nor will i abuse my leasure , or spend time about things unapproachable . an sit & hic dubito , sed & hic tamen auguror esse . says the poet in another case : and so say i. whether it be here or no , is a question , i confess : and yet for all that , i trow , here it is too , as i guess . out of king john's great charter , as they call it , you may also compare or make up this repeal of that law in part . let it be lawful henceforward for any one to go out of our realm , and to return safely and securely by land and by water , upon our royal word ; unless in time of war , for some short time , for the common advantage of the kingdom ; excepting those that are imprisoned and out-lawed according to the law of the kingdom , and any people or nation , that are in actual war against us : and merchants , concerning whom let such order be taken , as is afore directed . i return to king henry . . excommunicate persons ought not to give suretiship for the remainder , nor to take an oath ; but only to find surety and pledge , to stand to the judgment of the church , that they may be absolved . . persons of the laity ought not to be accused or impleaded but by certain and legal accusers and witnesses , in the presence of the arch-bishop or bishop ; so that the arch deacon may not lose his right , nor any thing which he ought to have therefrom . . if they be such persons who are in fault , as no one will or dare to accuse ; let the sheriff being thereunto required by him , cause twelve legal men of the voisinage or of the village , to swear before the bishop , that they will manifest or make known the truth of the matter according to their conscience . . let no one who holds of the king in capite , nor any one of the kings officers or servants of his domain , be excommunicated ; nor the lands of any of them be put under an interdict or prohibition ; unless first our lord the king , if he be in the land , be spoke with ; or his justice , if he be out of the land , that they may do right by him : and so that what shall appertain to the kings court , may be determined there ; and as to what shall belong to the ecclesiastical court , it may be sent thither and there treated of . chap. xi . other laws of church affairs . concerning appeals . a suit betwixt a clergyman and a layman , where to be tryed : in what case one , who relates to the king , may be put under an interdict . the difference betwixt that and excommunication . bishops to be present at tryals of criminals , until sentence of death , &c. pass . profits of vacant bishopricks , &c. belong to the king. the next bishop to be chosen in the kings chappel , and to do homage before consecration . deforcements to the bishop , to be righted by the king. and on the contrary , chattels forfeit to the king , not to be detained by the church . pleas of debts whatsoever in the kings court. yeomens sons not to go into orders without the lords leave . . concerning appeals , if at any time there shall be occasion for them , they are to proceed from the arch-deacon to the bishop , and from the bishop to the arch-bishop ; and if the arch-bishop shall be wanting in doing of justice , they must come in the last place to our lord the king ; that by his precept or order , the controversie may be determined in the arch-bishops court , so as that it ought not to proceed any further without the kings assent . this law , long since , the famous sir edward coke made use of , to assert and maintain the kings ecclesiastical jurisdiction , as a thing not of late taken up by him , but anciently to him belonging . . if a claim or suit shall arise betwixt a clergyman and a lay-man , or betwixt a layman and a clergyman , concerning any tenement which the clergyman would draw to the church , and the lay-man to a lay-fee ; it shall by the recognizance of twelve legal men , upon the consideration and advisement of the lord chief justice , be determined , whether the tenement do appertain to alms ( i. e. to the church ) or to lay-estate , before the kings own justice . and if it shall be recognized or adjudged to appertain to alms ; it shall be a plea in the ecclesiastical court : but if to a lay-fee , unless they both avow or avouch the tenement from the same bishop or baron , it shall be a plea in the kings court. but if each of them shall for that fee avouch the same bishop or baron , it shall be a plea in that bishops or barons court ; so that he who was formerly seised , shall not , by reason of the recognizance made , lose the seisin , till it shall by plea be deraigned . . he who shall be of a city , or a castle , or a burrough , or a manner of the kings domain , if he shall be cited by an arch-deacon or a bishop , upon any misdemeanour , upon which he ought to make answer to him , and refuse to satisfie upon their summons or citations ; they may well and lawfully put him under an interdict or prohibition ; but he ought not to be excommunicated . ( by the way ) seasonably remark out of the pontificial law , that that excommunication , they call the greater , removes a man and turns him out from the very communion and fellowship of the faithful ; and that an interdict , as the lesser excommunication , separates a man , and lays him aside only , forbidding him to be present at divine offices , and the use of the sacraments . ) i say he ought not to be excommunicated , before that the kings chief justice of that village or city be spoken with , that he may order him to come to satisfaction : and if the kings justice fail therein , he shall be at the kings mercy , and thereupon or after that the bishop may punish him upon his impleadment , with the justice of the church . . arch-bishops , b●shops , and all persons whatsoever of the kingdom , who hold of the king in capite , and have their possessions from our lord the king in nature of a barony , and thereupon make answer to the kings justices and officers , and perform all rights and customs due to the king as other barons do ; they ought to be present at the tryals of the court of our lord the king with his barons , until the losing of limbs or death , be adjudged to the party tried . . when an arch-bishoprick or bishoprick , or abbacy , or priory of the kings domain shall be void ; it ought to be in his hand , and thereof shall he receive all the profits and issues as belonging to his domain : and when the church is to be provided for , our lord the king is to order some choice persons of the church , and the election is to be made in the kings own chappel , by the assent of our lord the king , and by the advice of those persons of the kingdom , whom he shall call for that purpose ; and there shall the person elect ( saving his order ) before he be consecrated , do homage and fealty to our lord the king , as to his liege lord , for his life and limbs , and for his earthly honour . . if any one of the nobles or peers do deforce to do justice to an arch-bishop , bishop , or arch-deacon , for themselves or those that belong to them ; the king in this case is to do justice . . if peradventure any one shall deforce to the lord the king his right ; the arch-bishop , bishop , and arch-deacon , ought then in that case to do justice ( or to take a course with him ) that he may give the king satisfaction . . the chattels of those who are in the kings forfeit , let not the church or church-yard detain or keep back against the justice of the king ; because they are the kings own , whether they shall be found in churches or without . . pleas of debts which are owing , either with security given , or without giving security , let them be in the kings court. . the sons of yeomen or country people , ought not to be ordained or go into holy orders , without the assent of the lord , of whose land they are known to have been born . chap. xii . the statutes of clarendon mis-reported in matthew paris , amended in quadrilegus . these laws occasioned a quarrel between the king and thomas a becket . witness robert of glocester , whom he calls yumen . the same as rusticks , i. e. villains . why a bishop of dublin called scorch-uillein . villanage before the normans time . i confess there is a great difference between these laws and the statutes of clarendon , put forth in the larger history of matthew paris , i mean those mangled ones ; and in some places , what through great gaps of sence , disjointings of sentences , and misplacings of words , much depraved ones , whose misfortune i ascribe to the carelesness of transcribers . but the latter end of a manuscript book commonly called quadrilegus , ( wherein the life of thomas , arch-bishop of canterbury , is out of four writers , to wit , hubert of boseham , john of salisbury , william of canterbury , and alan , abbot of tewksbury , digested into one volume ) hath holp us to them amended as you may see here , and set to rights . it is none of our business to touch upon those quarrels , which arose upon the account of these laws betwixt the king and thomas of canterbury : our historians do sufficiently declare them . in the mean time , may our poet of glocester have leave to return upon the stage , and may his verses written in ancient dialect , comprising the matter which we have in hand , be favourably entertained . no man ne might thenche the love that there was bitwene the k. h. and the good man s. thomas ; the diuel had enui therto , and fed bitwen them feu , alas , alas thulke stond , vor all to well it greu . uor there had ere ibe kings of luther dede as w. bastard , and his son w. the rede . that luther laws made inou , and held in al the lond the k. nold not beleue the lawes that he fond , ne that his elderne hulde , ne the godeman s. thomas thought that thing age right neuer law nas . ne sothnes and custom mid strength up ihold , and he wist that vre dere lourd in the gospel told that he himselfe was sothnes , and custum nought , theruore luther custumes he nould graent nought . ne the k. nould bileue that is elderne ad ihold , so that conteke sprung bituene them manifold . the k. drou to right law mani luther custume , s. thomas they withsed , and granted some . the lawes that icholle now tell he granted vawe . zuf a yuman hath a sone to clergi idraw he ne sall without is lourdes icrouned nought be uor yuman ne mai nought be made agen is lourds will free . those that are born slaves , or that other sort of servants termed villains , he calls by the name of yumen . we call free-born commoners , alike as servants , as it were with a badg of ignobleness or ungentility , yeomen ; and those who of that number are married men , gommen ; for it was gomman in the old dutch , not goodman , as we vulgarly pronounce it , which signified a married man. words , as i am verily perswaded , made from the latin , homines ; which very word , by ennius and festus , according to the oscan idiom , is written hemones , and in our language , which comes pretty near that spelling of the poet , yeomen . and the etymon or origination of the word it self , is very much confirmed by the opinion of some of our own country lawyers , who take ( but with a mistake ) homines , i. e. men that do homage , and nativos , i. e. born slaves , in ancient pleas to be terms equipollent , and of the same importance . the constitution of clarendon style those rusticks or countrymen , whom he calls yumen ; and rusticks and villains ( those among the english were slaves or servants ) were anciently synonymous words , meaning the same thing . for whereas henry londres , arch bishop of dublin , had treacherously committed to the flames , the charters of his rustick tenants , the free tenants called him , as we read in the annals of ireland , scorch-uillein ; as if one would say , the burner or firer of villains . nor should i think it unseasonable in this place , to take notice of a mistake or oversight of thomas spott , a monk of canterbury ; who writes , that the english , before the norman conquest , knew nothing of private servitude or bondage ; i. e. had no such thing as villanage among them : for he is convinced both by the maid of andover , king edgar's miss , as also by the laws signed and sealed by king ina , and by that donation or grant torald of buk●nhale made to walgate , abbot of crowland ; wherein among other things a great many servants are mentioned , with their whole suits and services . take it also out of the synod of london , anselme being president of it ( since here belike there is mention made of servants ) that no one henceforward presume to use that ungodly practice , which hitherto they were wont in england to do , to sell , or put to sale , men , ( that is , servants ) like brute beasts . but we do not do civilly to interrupt the poet : we must begin again with him ; he once more tunes his pipes . another thing he granted eke as ye mow novise ; yuf a man of holi chirch hath eni lay fee , parson , other what he be , he ssal do therevore kings service that there valth , that is right ne be vorlore , in plaiding and in assise be and in judgement also . bote war man ssal be bilemed , other to deth ido . he granted eke yuf eni man the kings traitor were , and eni man is chateux to holi chirch bere that holi chirch ne solde nought the chateux there let that the k. there other is as is owne is ne wette . uor all that the felon hath the kings it is and eche man mai in holi church is owne take iwis . he granted eke that a chirche of the kings fe in none stede ene and ever ne ssold igiue be as to hous of religion , without the kings leve , and that he other the patron the gift first gave . s. thomas granted well these and other mo and these other he withsede that did him well woe . i. yuf bituene twei leud men were eni striving , other bituene a leud and a clerc , for holi chirch thing as vor vouson of chirch whether shold the chirch giue , the k. wold that in his court the ple ssold be driue ; uor as much as a leud man that the o parti was chanliche was under the k. & under no bishop nas . chap. xiii . the poet gives account which of those laws were granted by thomas a becket , which withstood . lendemen signifies laymen , and more generally all illiterate persons . that which this author of ours calls leudemen , the interpreters of law , both our common and the canon law call laicks , or laymen . for as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. people , as it it is derived by caesar germanicus , upon aratus his phaenomena after pindar , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. from a stone , denotes a hard and promiscuous kind of men ; so the word leudes imports the illiterate herd , the multitude or rabble , and all those who are not taken into holy orders . justus lipsius in his poliorceticks , discourses this at large ; where he searches out the origination of leodium or liege , the chief city of the eburones in the netherlands . as to what concerns our language , john gower and jeoffry chaucer , who were the reformers and improvers of the same in verse , do both make it good . thus jeoffry . no wonder is a leude man to rust if a priest be foule on whom we trust . however , that it signifies an illiterate or unlearned person , as well as one not yet in orders ; what he saith elsewhere , informs us . this every leud uicar and parson can say . and peter of blois , and others , use this expression ; as well laymen as scholars . but let not chaucer take it ill , that here he must give way to our glocester muse. ii. another was that no cl●re , ne bishop nath mo , ne ssolde without kings loue out of the lond go . and that hii ssolde suere up the boke ywis . that hii ne sold purchas no uvel the k. ne none of is . iii. the thrid was yuf eni man in mausing were i brought , and suth come to amendment , ne age were nought that he ne suore ●p the boc , ac borowes find solde to stand to that holy chirch there of him toky wold . iv. the verth was that no man that of the k. huld ought in cheife or in eni servise in mausing were ibrought , bote the wardeins of holy chirch that brought him thereto , the k. sede or is bailifes wat he ad misdo , and loked verst were thei to amendment it bring , and vote hii wolde by their leue do the mausing . v. the vist was , that bishoprikes and abbeis also that vacans were of prelas in the k. hand were ido , and that the k. sold all the land as is owne take , uort at last that him lust eni prelat there make . and than thulke prelat sould in is chapel ichose be . of is clarks which he wuld to such prelace bise . and than wan he were ichose in is chapel right yere , homage he solde him do ar he confirmed were . vi. the sixt was yuf eni play to chapitle were idraw , and eni man made is appele , yuf me dude him unlaw , that to the bishop from ercedeken is appele sold make , and from bishop to arcebissop and suth none other take , and but the ercebisops court to right him wold bring , that he sold from him be cluthe biuore the king. and from the k. non other mo so that attan end plaining of holi chirch to the k. shold wend. and the k. amend solde the ercebissops dede , and be as in the popes stude , and s. thomas it withsede . vii . the seuethe was that plaiding that of det were to yeld wel thoru truth iplight , and nought ihold nere althei thoru truth it were , that ple sold be ibrought biuore the k. and is bailies and to holy chirch nought . viii . the eighth that in the lond citation none nere thoru bull of the pope of rome , and clene bileued were . ix . the nithe was that peters pence that me gadereth manion the pope nere nought on isend , ac the k. echone . x. the tethe was yuf eni clarke as felon were itake , and vor felon iproved and ne might it not forsake , that me sold him verst disordein and suth thoru there law , and thoru judgement of the land hong him other to draw . uor these and vor other mo the godeman s. thomas fleu verst out of england and eke imartred was , uor he sei there nas bote o way other he must stiffe be other holy chirch was isent , that of right was so fre . chap. xiv . the pope absolves thoms a becket from his oath , and damns the laws of clarendon . the king resents it , writes to his sheriffs , orders a seisure . penalties inflicted on kindred . he provides against an interdict from rome . he summons the bishops of london and norwich . an account of peter pence . to the laws of clarendon , which i spoke of , the states of the kingdom ( the baronage ) and with them the arch-bishop of canterbury , took their oaths in solemn manner , calling upon god. there were embassadors sent to pope alexander the third , that there might be that bottom also , that he would further confirm and ratifie them . but he was so far from doing that , that he did not only pretend that they did too much derogate from the priviledge of the clergy , and wholly refuse to give his assent to them ; but also having absolved thomas the arch-bishop , at his own request , from the obligation of that oath he had bound himself with , he condemned them as impious , and such as made against the interest and honour of holy church . king henry , as soon as he heard of it , took it , as it was fit he should , very much in dudgeon ; grievously and most deservedly storming at the insolence of the roman court , and the treachery of the bishop of canterbury . immediately letters were dispatcht to the several sheriffs of the respective counties , that if any clerk or layman in their bayliwicks , should appeal to the court of rome , they should seise him and take him into firm custody ; till the king give order what his pleasure is : and that they should seise into the kings hand , and for his use , all the revenues and possessions of the arch-bishops clerks ; and of all the clerks that are with the arch-bishop ; they should put by way of safe pledge the fathers , mothers , and sisters , nephews and neeces , and their chattels , till the king give order what his pleasure is . i have told the story out of matthew paris . you see in this instance a penalty , where there is no fault : it affects or reaches to their kindred both by marriage and blood ; a thing not unusual in the declension of the roman empire after augustus his time . but let misdemeanors hold or oblige those who are the authors of them ( was the order of arcadius and honorius , emperors , to the lord chief justice eutychianus ) nor let the fear of punishment proceed further than the offence is found . a very usual right among the english , whereby bating the taking away the civil rights of blood and nobility , none of the posterity or family of those who lose their honours , do for the most hainous crimes of their parents , undergo any p●●al●ies . but this was not all , in those letters i mentioned , he added threats also . . if any one shall be found carrying letters or a mandate from the pope , of thomas , arch-bishop of canterbury , containing an interdiction of christian religion in england , let him be seised and kept in hold , and let justice be done upon him without delay , as a traitor against the king and kingdom . this roger of hoveden stands by , ready to witness . . let the bishops of london and norwich be summon'd , that they may be before the kings justices to do right ( i. e. to answer to their charge , and to make satisfaction ) that they have contrary to the statutes of the kingdom , interdicted the land of earl hugh , and have inflicted a sentence of excommunication upon him . this was hugh bigod , earl of norfolk . . ' let st. peters pence be collected , or gathered , and kept safe . those pence were a tribute or alms granted first by ina king of the west-saxons ; yearly at lammas to be gathered from as many as ' had thirty pence ( as we read it in the confessor's laws ) ' of live mony in their house . these were duly , at a set time , paid in , till the time of henry the eighth , when he set the government free from the papal tyranny : about which time polydore virgil was upon that account in england , treasurer , or receiver general . i thought fit to set down an ancient brief account of these pence , out of a rescript of pope gregory to the arch-bishops of canterbury and york , in the time of king edward the second . diocess li. s. d. canterbury london rochester norwich ely lincoln coventry chester winchester exceter worcester hereford bath york salisbury it amounts to three hundred marks and a noble ; that is , two hundred pounds sterling , and six shillings and eight pence . you are not to expect here the murder of thomas a becket , and the story how king henry was purged of the crime , having been absolved upon hard terms . conveniunt cymbae vela minora meae . my little skiff bears not so great a sail. chap. xv. a parliament at northampton . six circuits ordered . a list of the then justices . the jury to be of twelve knights . several sorts of knights . in what cases honorary knights to serve in juries . those who come to parliament by right of peerage , sit as barons . those who come by letters of summons , are styled chevaliers . not long after , the king and the barons meet at northampton . they treat concerning the laws and the administration of justice : at length the kingdom being divided into six provinces or circuits , there are chosen from among the lawyers , some , who in every of those provinces might preside in the seat of justice , commissioned by the name of itinerant justices , or justices in eyre . see here the list and names of those justices out of hoveden . hugh de cressi . walter fitz-robert . robert mantel . for norfolk . suffolk . cambridge . huntington . bedford . buckingham . essex . hertford . hugh de gundeville . william fitz-ralph . william basset . for lincoln . nottingham . darby . stafford . warwick . northampton . leicester . robert fitz-bernard . richard gifford . roger fitz-reinfrai . for kent . surrey . southampton . sussex . barkshire . oxford . william fitz-steeven . bertam de uerdun . turstan eitz-simon . for hereford . glocester . worcester . shropshire . ralph fitz-steeven . william ruffus . gilbert pipard . for wiltshire . dorsetshire . somersetshire . devonshire . cornwall . robert de wals. ralph de glanville . robert pikenot . for york . richmond . lancashire . copland . westmoreland . northumberland . cumberland . these he made to take an oath , that they would themselves , bona fide , in good faith , and without any deceit or trick , ( 't is the same author whose words i make use of ) keep the under-written assizes , and cause them inviolably to be kept by the men of the kingdom . he mentions them under this specious title . the assises of king henry , made at clarendon , and renewed at northampton . . if any one be called to do right ( or be served with a writ ) before the justices of our lord the king , concerning murder , or theft , or robbery , or the receiving and harbouring of those who do any such thing ; or concerning forgery , or wicked setting fire of houses , &c. let him upon the oath of twelve knights of the hundred ; or if there be no knights there , then upon the oath of twelve free and lawful men , and upon the oath of four men out of each village of the hundred , let him go to the ordeal of water , and if he perish , i. e. sink , let him lose one foot . the knights who are wanting here , are perhaps those who hold by knights service , or if you had rather , that hold by fee ; betwixt whom , and those who served in war for wages or pay , which in the books of fees are called solidatae ( the same peradventure as by caesar are termed soldurii , that is , soldiers ; by nicolaus damascenus , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , by our monks , bracton , otho frisingensis , and radevicus , in the camp laws of barbarossa , are styled servientes , that is , serjeants ) there is an apparent difference ; both of them being , placed far below the dignity of those honorary knights , who are called equites aurati . but yet i do very well know , that these honorary knights also were of old time , and are now by a most certain right cal●ed forth to some tryals by jury . to the kings great or grand assise ( i say ) and to a suit of law contested , when a baron of parliament is party on one side , i. e. plaintiff or defendant . to the assise , in that it is the most solemn and honourable way of tryal , and that which puts an utter end to the claim of the party that is cast . to such an unequal suit , that there may be some equality of name or title as to some one , at least , of the judges ( for the jury or twelve men are upon such occasion judges made ) and as to the more honourable of the two parties , whether plaintiff or defendant . for the peers of parliament , who are the greater nobles ( amongst whom by reason of their baronies , arch-bishops and bishops , heretofore a great many abbots ) such as are dukes , marquesses , earls , viscounts , and barons ; who though they be distinguished by order and honorary titles , yet nevertheless they sit in parliament , only as they are barons of the realm . and those who at the kings pleasure are called in by letters of summons , as lawyers term it , are styled chevaliers , not barons . for that of chevalier was a title of dignity ; this of baron anciently rather of wealth , and great estate . which title only such writs of summons bestowed till richard the seconds time , who was the first that by patent made john beauchamp of holt , baron of kiderminster : now both ways are in fashion . chap. xvi . the person convict by ordeal , to quit the realm within forty dayes . why forty dayes allowed . an account of the ordeals by fire and water . lady emme dear'd by going over burning coulters . two sorts of tryal by water . learned conjectures at the rise and reason of these customs . these ordeals , as also that of single combat condemned by the church . . at northampton it was added for the rigour of justice , ( remember what was said in the foregoing chapter ) that he should in like manner lose his right hand or fist with his foot , and forswear the realm , and within forty dayes go out of the kingdom into banishment . ( he had the favour of forty dayes allowed him , so saith bracton , that in the mean time he might get help of his friends to make provision for his passage and exile . ) and if upon the tryal by water he be clean , i. e. innocent , let him find pledges , and remain in the realm , unless he be arighted for murder , or any base felony , by the community or body of the county , and of the legal knights of the countrey , concerning which , if he be arighted in manner aforesaid , although he be clean by the tryal of water ; nevertheless let him quit the realm within forty dayes , and carry away his chattels along with him , saving the right of his lords , and let him forswear the realm at the mercy of our lord the king. here let me say a little concerning the tryal by fire and water , or the ordeals . it is granted , that these were the saxons wayes of tryal , rashly and unadvisedly grounded upon divine miracle . they do more appertain to sacred rites , than to civil customs ; for which reason we past them by in the former book , and this place seemed not unseasonable to put the reader in mind of them . he who is accused , is bound to clear himself ( 't is ralph glanvill writes this ) by the judgement of god , to wit , by hot burning iron , or by water , according to the different condition of men : by burning hot iron , if it be a free-man ; by water , if he be a countrey-man or villain . the party accused did carry in his hand a piece of iron glowing hot , going for the most part two or three steps or paces along , or else with the soles of his feet did walk upon red hot plough-shares or coulters , and those , according to the laws of the franks and lombards , nine in number . the lady emme the confessor's mother being impeached of adultery with aldwin bishop of winton , was wonderfully cleared by treading upon so many , and is famous for it in our histories , being preserved safe from burning , and proved innocent from the crime . there were two sorts of watery ordeal or tryal by water ; to wit , cold or scalding hot . the party was thrown into the cold water , as in some places at this day witches are used : he who did not by little and little sink to the bottom , was condemned as guilty of the crime , as one whom that element , which is the outward sign in the sacrament of regeneration , did not admit into its bosome . as to scalding water , ones arm in that manner thrust in up to the elbow , made a discovery of the truth ; and aelstan a monk of abendon , afterward bishop of shirburn , thrusting in his bare hand into a boiling cauldron , shewed himself with some pride to his abbot . but that they say , that rusticks or vassals only were tryed by water , ( for water is ascribed to the earthly and ignoble nature , fire to the heavenly ; so that from the use of fire peculiar to man , firmianus lactantius hath fetcht an argument for the immortality of the soul ) that this is not altogether so true , is made out by that one example of john , a noble and rich old man , who in the time of king henry the second , when , being charged with the death of his brother the earl of ferrers , he could not acquit himself by the watery tryal , was hang'd on a gallows . whence or by what means both these customs were brought in among christians , 't is none of my business to make an over strait inquiry . i remember that fire among the ancients was accounted purgative ; and there is one in a tragedy of sophocles intitled antigone , who of his own accord profest to king creon , — 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . — that in his hands be red-hot gads would kéep , and over burning gleads would bare-foot créep . to shew himself innocent as to the burial of polynices . i pass by in silence that pythagorical opinion , which placeth fire in the centre of the universe , where jupiter hath his prison ; which fire some , however the peripateticks stiffly oppose it , would have to be in plain terms the sun , — 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . who all things overlooks , and all things hears . yet i shall not omit this , that in the holy bible the great and gracious god hath of a truth discovered himself to mortal conception in the very name of fire , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as a thing agreeable to divinity , as saith john reuchlin ; and that s. paul hath , according to the psalmists mind , stiled the ministers of god , a flame of fire . and indeed to abuse the holy scriptures , by mis-interpreting them , is a custom too ancient and too too common . homer and virgil both sing of — imperjuratam stygiamque paludem , dii cujus jurare timent & fallere numen . that is , — th' unperjur'd stygian lake , whose name the gods do fear in vain to take . we read of the infants of the celts , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . try'd in the streams of sacred flood , whether of right or of base blood ; as it is in the greek epigrams : of the fountains of sardinia , in solinus : of the moist februa , or purifications by water , in ovids fastorum : and of those rivers that fell from heaven , and their most wonderful and hidden natures , among natural philosophers . but most of these things were not known peradventure in our ordeals . yet martin del rio , a man of various reading and exquisite learning , hath in his magical inquiries offered a conjecture , that the tryal by water crept into use from a paltry imitation of the jews cup of jealousie . truth is , a great many instances both of this way of trying by water and of that by fire , are afforded by the histories of the danes , saxons , germans , franks , spaniards , in a word , of the whole christian world. an quia cunctarum concordia semina rerum , sunt duo discordes ignis & vnda dei , junxerunt elementa patres ? was it , saith the poet , 'cause the two diff'ring gods , alwayes at ods , that of water , that of fire , which yet in harmony conspire the seeds of all things fitly joyn'd ; therefore our fathers have these two combin'd . or was it , because that the etymologie of the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 hashamaim , that is , heaven , ( for the heavens themselves were the feigned gods of the gentiles ) some are pleased with the deriving it from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 esh , i. e. fire and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 maim , i. e. water : let some more knowing janus tell you . — 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . for my part i shall not this game pursue ; why should i lose my time and labour too ? the superstitions and fopperies , the rites and usages , the lustrations and purifyings , the prayers and litanies , and the solemn preparations ( in consecrating and conjuring the water , &c. ) you have in will. lambard in his explications of law terms , and in matthew parker arch-bishop of canterbury in his antiquities of the brittish church . both of them together , with that other of single combat or duel ( for that also was reckoned among the ordeals ) were judged by the church of rome to be impious customs ; and it is long since that they have been laid aside , and not put in practice among the common ordinary wayes of peoples purging and clearing themselves . well , now let me come back to my own country again , and return to northampton . chap. xvii . other laws : of entertaining of strangers . an uncuth , , a gust , a hogenhine ; what of him who confesseth the murder , &c. of frank pledge . of an heir under age . of a widows dowry . of taking the kings fealty . of setting a time to do homage . of the justices duty . of their demolishing of castles . of felons to be put into the sheriffs hands . of those who have departed the realm . . let it be lawful for no man , neither in borough nor in village or place of entertainment , to have or keep in his house , beyond one night , any stranger , whom he will not hold to right , ( that is , answer for his good behaviour ) unless the person entertain'd shall have a reasonable essoin or excuse , which the master or host of the house is to shew to his neighbours ; and when the guest departs , let him depart in presence of the neighbours , and in the day time . hither belongs that of bracton . he may be said to be of ones family , who shall have lodged with another for the space of three nights ; in that the first night he may be called uncuth , i. e. unknown , a stranger ; but the second night gust , i.e. a guest or lodger ; the third night hogenhine ( i read hawan man ) i. e. in greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , in latin familiaris , one of the family . . if any one shall be seised for murder , or for theft , or robbery , or forgery , and be knowing thereof , ( i. e. shall confess it ) or for any other felony which he shall have done , before the provost ( the master or bailiff of the hundred or borough , and before lawful men , he cannot deny it afterwards before the justices . and if the same person without seisin ( with seisin in this place is the same as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as we commonly say in our language , taken with the manner ) shall recognize or acknowledge any thing of this nature before them , this also in like manner he shall not be able to deny before the justices . . if any one shall dye holding in frank pledge ( i. e. having a free tenure ) let his heirs remain in such seisin , as their father had on the day he was alive and dyed , of his fee , and let them have his chattels , out of which they may make also the devise or partition of the deceased , ( that is , the sharing of his goods according to his will ) and afterwards may require of their lord , and do for their relief and other things , which they ought to do as touching their fee ( i. e. in order to their entring upon the estate . ) . if the heir be under age , let the lord of the fee take his homage , and have him in custody or keeping for as long time as he ought ; let the other lords , if there be more of them , take his homage , and let him do to them that which he ought to do . . let the wife of the deceased have her dowry , and that part of his chattels , which of right comes to her . in former times peradventure it was a like generally practised by the english , that the wife and children should have each their lawful thirds of the estate ; ( each of them , i say , if they were in being ; but half to the wife , if there were no issue ; and as much to the children , if the wife did not survive her husband : ) as it was practised by the romans of old according to the falcidian law ▪ and of later time by the novells of justinian , that they should have their quarter-part . for i see that those of normandy , of arras , of ireland , people that lay round about them , had the same custom . of this you are to see glanvill , bracton , the register of briefs or writs , and william lindwood , beside the records or yearly reports of our law. . let the justices take the fealties of our lord the king before the close of easter , and at furthest before the close of pentecost ; namely , of all earls , barons , knights and free-holders , and even of rusticks or vassals , such as have a mind to stay in the realm ; and he who will not do fealty , let him be taken into custody as an enemy of our lord the king. . the justices have also this to give in charge , that all those , who have not as yet done their homage and allegiance to our lord the king , do at a term of time ; which they shall name to them , come in and do homage and allegiance to the king as to their liege lord. . let the justices do all acts of justice and rights belonging to our lord the king by a writ of our lord the king , or of them who shall be in his place or stead , as to a half-knights fee and under ; ( a knights fee in an old book , which pretends to more antiquity by far than it ought , concerning the manner of holding parliaments , is said to be twenty pounds worth of land in yearly revenue , but the number prefixt before the red book of the exchequer goes at the rate of six hundred and eighty acres : ) unless the complaint be of that great concern , that it cannot be determined without our lord the king , or of that nature that the justices by reason of their own doubting refer it to him , or to those who shall be in his place and stead . nevertheless let them to the utmost of their ability intend and endeavour the service and advantage of our lord the king. . let the justices provide and take care , that the castles already demolisht , be utterly demolished , and that those that are to be demolished , be well levelled to the ground . and if they shall not do this , our lord the king may please to have the judgement of his court against them , as against those who shew contempt of his precept . . a thief or robber , as soon as he is taken , let him be put into the sheriffs hands to be kept in safe custody ; and if the sheriff shall be out of the way , let him be carried or brought to the next constable of a castle , and let him have him in custody , until he deliver him up to the sheriff . . let the justices according to the custom of the land , cause inquiry to be made of those , who have departed or gone out of the realm . and if they shall refuse to return within a term of time that shall be named , and to stand to right in the kings court ( i. e. to make their appearance , and there to answer , if any thing shall be brought in against them ) let them after that be outlawed , and the names of the outlaws be brought at easter and at the feast of st. michael to the exchequer , and from thence be sent to our lord the king. these laws were agreed upon at northampton . chap. xviii . some laws in favour of the clergy . of forfeitures on the account of forest or hunting . of knights fees . who to bear arms , and what arms. arms not to be alienated . no jew to bear arms. arms not to be carryed out of england . rich men under suspicion to clear themselves by oath . who allowed to swear against a free-man . timber for building of ships not to be carryed out of england . none but free-men to bear arms. free-men who . rusticks or villains not such . . that henceforth a clergy-man be not dragg'd and drawn before a secular judge personally for any crime or transgression , unless it be for forest or a lay-fee , out of which a lay-service is due to the king , or to some other secular lord. this priviledge of the clergy the king granted to hugh the popes cardinal legate , by the title of s. michael à petra , who arrived here on purpose to advance the popish interest . . furthermore , that arch-bishopricks , bishopricks or abbacies be not held in the kings hand above a year , unless there be an evident cause , or an urgent necessity for it . . that the murderers or slayers of clergy-men being convicted , or having confest before a justice or judge of the realm , be punished in the presence of the bishop . . that clergy-men be not obliged to make duel : i. e. not to clear themselves , as others upon some occasion did , by single combat . . he ordained at woodstock ( we transcribe these words out of hoveden ) that whosoever should make a forfeit to him concerning his forest , or his hunting once , he should be tyed to find safe pledges or sureties ; and if he should make a second forfeit , in like manner safe pledges should be taken of him ; but if the same person should forfeit the third time , then for his third forfeit , no pledges should be taken , but the proper body of him who made the forfeit . moreover , we meet with these military laws , or laws of knights fees , made for tenants and other people of the common sort . . he who hath one knights fee ( 't is the aforesaid hoveden speaks ) let him have an habergeon or coat of male , and a helmet or head-piece and a buckler or target and a lance : and let every knight have so many habergeons , and helmets , and targets , and lances , as he shall have knights fees in his demeans . . whatsoever free-holder that is a lay-man , shall have in chattel or in rent and revenue to the value of sixteen marks , let him have a coat of male , and a head-piece , and a buckler , and a lance. . whatsoever lay-person being a free-man , shall have in chattel to the value of ten marks , let him have a little habergeon , or coat of male , and a capelet of iron , and a lance. . let all burghers or towns-men of a corporation , and the whole communities of free-men have a wambais , and a capelet of iron , and a lance. . let no one , after he hath once had these arms , sell them , nor pawn them , nor lend them , nor by any other way alienate them from himself , or part with them : nor let his lord alienate them by any manner of way from his man ( i. e. his tenant that holds under him ) neither by forfeit , nor by gift , nor by pledge , nor by any other way . . if any one shall dye having these arms , let them remain to his heir ; and if the heir be not of such estate or age , that he may use the arms , if there shall be need , let that person who shall have them ( the heir ) in custody , have likewise the keeping of the arms , and let him find a man , who may use the arms in the service of our lord the king , if there shall be need , until the heir shall be of such estate , that he may bear arms , and then let him have them . . whatsoever burgher shall have more arms , than it shall behove him to have , according to this assize , let him sell them , or give them away , or so dispose of them from himself to some other man , who may retain them in england in the service of our lord the king. . let no one of them keep by him more arms , than it shall behove him according to this assize to have . . let no jew keep in his possession a coat of male or an habergeon , but let him sell them , or give them , or in some other manner put them away , in that wise that they may remain in the service of the king of england . . let no man bear or carry arms out of england , unless it be by special order of our lord the king ; nor let any one sell arms to any one , who may carry them from england ; nor let merchant or other carry or convey them from england . . they who are suspected by reason of their wealth or great estate , do free or acquit themselves by giving their oaths . the justices have power or jurisdiction given them in the case for this purpose . if there shall be any , who shall not comply with them ( the justices ) the king shall take himself to the members or limbs of such persons , and shall by no means take from them their lands or chattels . . let no one swear upon lawful and free-men , ( i. e. in any matter against or concerning them ) who hath not to the value of sixteen or ten marks in chattel . . let no one , as he loves himself and all that he hath , buy or sell any ship to be brought from england ; nor let any one carry , or cause to be carryed out of england timber for the building of ships . . let no one be received or admitted to the oath of bearing arms ' but a free-man . to bring once for all something concerning a free-man , that may not be beside the purpose . the ancient law of england bestowed that name only upon such persons , as many as , either being honoured by the nobility of their ancestors , or else out of the commonalty being of ingenuous birth ( to wit , of the yeomanry ) did not hold that rustick fee or tenure of villenage ) dedicated to stercutius ( the god of dunghils ) and necessarily charged and burthened with the plough tail , the wain , and the dray , which are the hard countrey-folks arms and implements . to this purpose makes the term of rustick or countrey-man above mentioned in the statutes of clarendon , and the place of glanvill cited in the tryal of ordeal . that the business may be more clearly asserted ; a suit of law being waged in the time of edward the first , betwixt john levin plaintiff and the prior of bernwell defendant ( i have taken the story out of an old manuscript , and the reports of our law , and the collection or body of the royal rescripts do agree to it ) it was then , after several disputes bandied to and fro , and with earnestness enough , decided by the judgement of the court , that those tenants which hold in fee from the ancient domain of the crown , as they call it , are by no means comprehended under the title of free-men ; as those who driving their labour around throughout the year pay their daily vows to ceres the goddess of corn , to pales the goddess of shepherds , and to triptolemus the inventer of husbandry or tillage , and keep a quarter with their gee hoes about their chattel . and now death hath put an end to king henry's reign . and i also having made an end of his laws , so far as histories do help me out , do at the last muster and arm my bands for the guard of my frontiers . i wish they may be of force enough against back-biters . chap. xix . of law-makers . our kings not monarchs at first . several of them in the same county . the druids meeting-place where . under the saxons , laws made in a general assembly of the states . several instances . this assembly under the normans called parliament . the thing taken from a custome of the ancient germans . who had right to sit in parliament . the harmony of the three estates . but however laws are not without their makers and their guardians , or they are to no purpose . it remaineth therefore that we say somewhat in general of them . they are made either by use and custom ( for things that are approved by long use , do obtain the force of law ) or by the sanction and authority of law-givers . of ancient time the semnothei , the kings and the druids were law-givers ; amongst the britans i mean. concerning the semnothei whatsoever doth occurr you had before . the kings were neither monarchs of the whole island , nor so much as of that part of brittany that belonged to the angles . for there were at the same time over the single county of kent four kings ; to wit , cyngetorix , carvilius , taximagulus , and segonax ; and at the same rate in other counties . wherefore we have no reason to make any question , but that part wherein we live , now called england , was governed by several persons , and was subject to an aristocracy : according to what polydore virgil , john twine , david powell and others have informed us . the druids were wont to meet , to explain the laws in being , and to make new ones as occasion required , as is most likely , in some certain place designed for that purpose ; as now at this very time all matters of law go to be decided at spire in germany , at westminster-hall in england , and paris in france . their publick convention or meeting-place was constantly , as julius caesar tells us , in the borders of the carnutes the middle region of all france . some think that a town at eight miles distance from the metropolis of those people commonly called dreux , was designed for that use . whilst the saxons governed , the laws were made in the general assembly of the states or parliament . in the front of king ina's laws ( 't is above eight hundred and eighty years that he first reigned ) we read thus , it ine mid godes gift west-saxna cyning mid getbeat & mid lere cenredes mines fader & hedde & erconwald mine biscops & mid eallum minum , ealdor mannum , & tham yldestan witan mines theode be beodeth , &c. which in our present english speaks thus , i ina by the grace of god king of the west-saxons , by the advice and order of kenred my father , and of hedda and erconwald my bishops , and of all my aldermen , and of the elders and wise men of my people , do command , &c. there are a great many instances of this kind in other places . moreover witlaf and bertulph , who were kings of the mercians near upon eight hundred years ago , do in their instruments under their hands make mention of synods and councils of the prelates and peers convened for the affairs of the kingdom . and an ancient book has this passage of abendon , here was the royal seat , hither when they were to treat of the principal and difficult points of state , and affairs of the kingdom , the people were used to meet and flock together . to this may be added that which malmesbury sayes of king edward in the year of our lord . the king gathered a synod or ●ssembly of the senators of the english nation , over which did preside pleimund arch-bishop of canterbury interpreting expresly the words of the apostolical embassy . these assemblies were termed by the saxons , widdena gemcdes , i. e. meetings of the wise men , and micil sinodes , i. e. the great assemblies . at length we borrowed of the french the name of parliaments , which before the time of henry the first , polydore virgil sayes , were very rarely held . an usage , that not without good reason seems to have come from the ancient germans . so tacitus sayes of them , concerning smaller matters the princes only , concerning things of greater concern , they do all the whole body of them consult ; yet in that manner , that those things also , which it was in the peoples power to determine , were treated of by the princes too . and i have one that hath left it in writing , that when there was neither bishop , nor earl , nor baron , yet then kings held their parliaments : and in king arthur's patent to the university of cambridge ( for ye have my leave , if you can find in your heart , to give credit to it , as john key does ) by the counsel and assent of all and singular the prelats and princes of this realm , i decree . there were present at parliaments , about the beginning of the normans times , as many as were invested with thirteen fees of knights service , and a third part of one fee , called baron's , from their large estates : for which reason perhaps john cochleius of mentz , in his epistle dedicatory to our most renowned sir thomas more , prefixt before the chronicle of aurelius cassiodorus , calls him baron of england . but henry the third , the number of them growing over big , ordered by proclamation , that those only should come there , whom he should think fit to summon by writ . these assemblies do now sit in great state , which with a wonderful harmony of the three estates , the king , the lords and the commons , or deputies of the people , are joyned together , to a most firm security of the publick , and are by a very learned man in allusion to that made word in livy , panaetolium from the aetolians , most rightly called pananglium , that is , all england . as in musical instruments and pipes and in singing it self , and in voices ( sayes scipio in tully's books of the common-wealth ) there is a kind of harmony to be kept out of distinct sounds , which learned and skilful ears cannot endure to hear changed and jarring ; and that consort or harmony , from the tuning and ordering of voices most unlike ; yet is rendred agreeing and suitable : so of the highest and middlemost and lowermost states shuffled together , like different sounds , by fair proportion doth a city agree by the consent of persons most unlike ; and that which by musicians in singing is called harmony : that in a city is concord , the straightest and surest bond of safety in every common-wealth , and such as can by no means be without justice . but let this suffice for law-makers . chap. xx. the guardians of the laws , who . in the saxons time seven chief . one of the kings among the heptarchs styled monarch of all england . the office of lord high constable . of lord chancellor , ancient . the lord treasurer . alderman of england , what . why one called healfkoning . aldermen of provinces and graves , the same as counts or earls and viscounts or sheriffs . of the county court , and the court of inquests , called tourn le viscount . when this court kept , and the original of it . i do scarce meet before the saxons times with any guardians of the laws different from these law-makers . in their time they were variously divided , whose neither name nor office are as yet grown out of use . the number is made up , to give you only the heads , by these ; to wit , the king , the lord high constable , the chancellor , the treasurer , the alderman of england , the aldermen of provinces and the graves . those of later date and of meaner notice i pass by , meaning to speak but briefly of the rest . the king was alwayes one amongst the heptarchs or seven rulers , who was accounted ( i have beda to vouch it ) the monarch of all england . ella king of the south-saxons ( so sayes ethelwerd ) was the first that was dignified with so high a title and empire , who was owner of as large a jurisdiction as ecbright ; the second was ceulin king of the west-angles ; the third aethelbrith king of the kentish-men ; the fourth redwald king of the easterlings ; the fifth edwin king of northumberland ; the sixth oswald ; the seventh osweo , oswala's brother ; after whom the eighth was ecbright . his west-saxon kingdom took in the rest for the greatest part . the office of lord high constable , which disappeared in edward duke of buckingham , who in henry the eighth's time lost his head for high-treason , was not seen till the latter end of the saxons . one alfgar staller is reported by richard of ely monk , to have been constable to edward the confessor , and mr. camden mentions a dwelling of his upon this account called plaiffy in the county of middlesex . he of ely sets him out for a great and mighty man in the kingdom . and indeed formerly that magistrate had great power , which was formidable even to kings themselves . they who deny there were any chancellors before the coming in of the normans , are hugely mistaken . nor are they disproved only out of the grant of edward the confessor to the abbot of westminster , which i am beholden to mr. lambard for , at the bottom of which these words are set down : i syward publick notary , instead of rembald the kings majesties chancellor , have written and subscribed this paper ; but also out of ingulph , who makes mention of farketulus , some while after that abbot of crowland , chancellor of king edred , by whose decree and counsel were to be handled & treated whatsoever businesses they were , temporal or spiritual , that did await the judgement of the king ; and being thus treated of by him , might irrefragably stand good . and francis thinn , that learned antiquary has reckoned up several , who have discharged this office ; as turketill to king ethelbald , swithin bishop of winchester to king egbert , vlfin to king athelstan , adulph to king edgar , alsy abbot and prelate of ely to king ethelred . concerning which office and the seals , which the chancellor in old time had the keeping of , i had rather you would consult with camden's tribunals or seats of justice , and those things which john budden at wainfleet doctor of laws has brought out of the archives into his palingenesia , than seek them at my hands . as for treasurers , dunstan was so to king edred , and hugolin to the confessor . but that fifth title of alderman of england , is an unusual one . yet , if i don't mistake my self , he was the chief president in tryals at law , and an officer to keep all quiet at home ; the same as now perhaps is commonly called the lord chief justice of england . this remarkable name i do not meet with , neither in the monkish chronologers , which are to be had at the shops , nor in the records of our laws . but a private history of the abbey of ramsey in huntingdon-shire has given us notice of one ailwins tomb with this inscription , hic . requiescit . ailwinus . incliti . regis . eadgari . cognatus . totius . angliae . aldermannus . et . hujus . sacri . coenobii . miraculosus . fundator . that is , here resteth ailwin kinsman of the renowned king edgar , alderman of all england , and the miraculous founder of this sacred monastery . and by reason of his great authority and favour which he had with the king , by a nick name they called him healfkoning , i. e. half-king . now henry of huntingdon sayes , that tostius earl ( or to use his phrase consul ) of northumberland , and harald sons of godwin earl of kent were justices of the realm . aldermen may aptly be termed by the word senators . those judges did exercise a delegated power throughout the provinces , called counties or shires , and the graves an under-delegated power from them . the word is as much as governours , and is the same thing , as in high dutch grave in landgrave , burgrave , palsgrave , &c. and what amongst some of our own people reev . we shall call them both , as that age did , in a latin term , the one comites , i. e. counts or earls , the other vicecomites , that is , viscounts or sheriffs . the name of count is every where met with amongst the most ancient of the monks , which yet does very often pass into that of duke in the subscription of witnesses . and in the charter of the foundation of chertsey abby in surrey , frithwald stiles himself subregulus , i.e. an under kingling or petty vice-roy to wulpher king of the mercians ; make no question of it , he meant he was a count. a viscount and a vice-lord are more than very like , they are the very same . ingulph sayes it above . and in the last hand-writing of king edred we have , i bingulph vice-lord advised it , i alfer viscount heard it . these counts and viscounts , or earls and sheriffs had in their counties their several courts both for private and for publick matters . for private affairs they had every month a meeting called the county court. let every grave , as we have it in edward the elder 's laws , every fourth week convene and meet the people in assembly : let him do equal right to every one , and determine and put an end to all suits and quarrels , when the appointed days shall come . for publick business king edgar ordered the court of inquests or inquiries , called tourn le uiscount . let a convention or meeting be held twice every year out of every county , at which let the bishop of that diocess , and the senator , ( i. e. the alderman ) be present ; the one to teach the people the laws of god ; the other the laws of the land. what i have set down in william the first at the end of the fourth chapter of this second book , you ought to consider of here again in this place . the inhabitants did not meet at this court of inquests at any season promiscuously and indifferently , but as it is very well known by the use and ancient constitutions of the realm , within a month either after easter , or after michaelmas . in which court , seeing that not only the count , as now a dayes the viscount or sheriff does , but also the bishop did preside ; it does not at all seem difficult to trace the very original of this temporary law. that peradventure was the synod of antioch held in pope julius the first 's time , and acknowledged in the sixth general council held at constantinople . in this latter there are expresly and plainly two councils or meetings of the bishops to be kept every year within three weeks after easter , and about the middle of october , ( if there be any small difference in the time , it can be no great matter of mistake ) . you may help your self to more other things of meaner note out of what has been said before about hundreds , bourghs and the like . and this may serve in brief for the saxons , who were entrusted with the care of their laws . chap. xxi . of the norman earls . their fee. their power of making laws . of the barons , i.e. lords of manours . of the court-baron . it s rise . an instance of it out of hoveden . other offices much alike with the saxons . i shall be briefer concerning the normans , i mean their earls and barons . their counts or earls before the conquest , except those of leicester , and perchance some others , were but officers , and not as yet hereditary . when william bore the sway , they began to have a certain fee and a descent of patrimony ; having together with their title assigned to them a third part of the revenues or rents , which did arise out of the whole county to the exchequer . this custom is clear enough in gervase of tilbury in the case of richard de redueriis made earl of devonshire by henry the first , & jeoffrey de magna villa made earl of essex by mawd the empress . it seems that the saxon earls had the self-same right of sharing with the king. so in doomsday book we find it ; the queen edeua had two parts from ipswich in suffolk , and the earl or count guert the third : and so of norwich , that it paid twenty pound to the king , and to the earl ten pound : so of the revenues of the borough of lewes in sussex , the king had two shares , and the earl the third . and oxford paid for toll and gable , and other customary duties twenty pound a year to the king , besides six quarts of honey , and to earl algar ten pound . to conclude , it appears also that these norman earls or counts had some power of making laws to the people of their counties . for instance , the monk of malmesbury tells us , that the laws of william fitz-osborn earl of hereford remained still in force in the said county , that no souldier for whatsoever offence should pay above seven shillings . the writings and patents of the men of cornwall concerning their stannaries or tinn-mines do prove as much ; nor need i tell the story , how godiva lady to the earl leofrick rid on horse-back through the streets of coventry with her hair disshevelled , all hanging about her at full length , that by this means she might discharge them of those taxes and payments , which the earl had imposed upon them . out of the countreys ( wherein all estates were subject to military service ) the barons had their territories , as we call them mannors ; and in them their courts to call their tenants together , at the end of every three weeks , and to hear and determine their causes . a civilian , one vdalricus zazius , would have the original of these courts among other nations , to have come by way of imitation from romulus his making of lords or patrons , and their clanns or tenants . the use of them at this day is common and ordinarily known . but to shew how it was of old , we will borrow out of hoveden this spark of light . john marshall complained to henry the second , that whereas he had claimed or challenged in the arch-bishops court a piece of land to be held from him by right of inheritance , and had a long time pleaded upon it , he could obtain no justice in the case , and that he had by oath falsified the arch-bishops court , ( that is , proved it to be false by oath , according to the custom of the realm : to whom the arch-bishop made answer , there has been no justice wanting to john in my court ; but he , i know not by whose advice , or whether of his own head , brought in my court a certain toper , and swore upon it , that he went away from my court for default of justice ; and it seemed to the justices of my court , that he did me the injury , by withdrawing in that manner from my court ; seeing it is ordained in your realm , that he who would falsifie anothers court must swear upon the holy gospels . the king not regarding these words , swore , that he would have justice and judgement of him ; and the barons of the kings court did judge him to be in the kings mercy ; and moreover they fined him five hundred pound . as to doing justice in all other cases , and managing of publick affairs , the normans had almost the same names and titles of officers and offices as the saxons had . finis . a brief chronology to attend and assist the history . in the year of the world .   . samothes , if there ever were such a man , bears rule . . brutus makes a descent , ( that is , lands with his trojans ) in cornwall or devonshire . . dunvallo molmutius swayes the scepter . . martia , dowager of king quintilen , is queen regent during the minority of her son sisillius the first . . caius julius caesar arrives at deal on the sea-coast of kent , and territa quaesitis ostendis terga britannis , that is , having inquiry made , after the britans bold , he turn'd his back , 't is said , his courage would not hold : and was the first that discover'd britanny to the romans . in the year of christ .   . claudius caesar emperour sends over aulus plautius with an army as his lieutenant general , and by degrees reduceth the countrey into the form of a roman province . . a colony of veterans or old roman souldiers is sent down to maldon in essex . . britanny is subdued or brought under the yoke by the conduct of junius agricola , in the time of domitian the emperour . . lucius or king lucy was the first christian king. forasmuch as he was of the same standing with pope eleutherius and the emperour commodus . whence it appears , that beda makes others mistake , and is himself mistaken in his wrong account of time in this affair . . the saxons , angles , jutes , danes , frisons , or friselanders arrive here from germany , taurus and felix then consuls , in the one and twentieth year of theodosius the younger . the common or ordinary account of writers sets it down the four hundred forty ninth year : but that great man both for authority and judgement william camden clarenceaux king at arms hath , upon the credit of ancient records , closed this epoch or date of time within that term of years , which i have set in the margin . . king ethelbert the first king of the english saxons , who profest christianity . . king egbert . . king alured or alfred . . king edgar . . canute or king knute the dane . . harold , eldest son to king knute , called for his swiftness harefoot . . edward the confessor , after whom harold son to godwin earl of kent usurp't the throne , where he continued only nine months . . william duke of normandy , after a battel fought upon the plain near hastings , got the dominion or soveraignty of the british island . . william rufus , second son of the conquerour . . henry the first , younger brother to rufus . . king stephen , count of blois in france , nephew to henry by his sister adela . . henry the second , grand-child to henry the first by his daughter mawd the empress , and jeoffrey count of anger 's in france . finis . brief notes upon some of the more difficult passages in the title-page . common and statute law ] so i render jus prophanum , as prophane is opposed to sacred and ecclesiastical , as himself explains the term in his preface out of festus . otherwise it might have been render'd civil law , as relating to civil affairs and the government of state , not medling with the canons and rules of the church ; but that the civil law with us is taken generally in another sense for the imperial law , which however practised in several other nations , hath little to do in england , unless in some particular cases . of english britanny ] that is , that part of britain , which was inhabited by the angles , in latin called anglo-britannia , by us strictly england ; as for distinction , the other part of the island , wales , whither the welsh , the true and ancient britans , were driven by the saxons , is called cambro-britannia , that is , welsh britanny ; and scotland possest by the scots , is in like manner called scoto-britannia , that is scotch-britanny , which now together with england , since the union of the two kingdoms , goes under the name of great britain . in the author's preface . the guardian of my threshold ] so limentinus among the romans was the god of the threshold , qui limentis , i. e. liminibus praeest ; but it may be taken for the officer of the gate , the porter , who gives admission to strangers . in a different character ] accordingly in the latin the author's citations are printed in italick ; which , because they are so frequent , i thought fit rather to notifie by a distinction , as usual , in the margin ; thus , " " intercidona , pilumnus & deverra ] these were heathen deities , to whom they attributed the care of their children , whom else they thought silvanus might , like oberon king of the fairies , surprize or do some other mischief to . in the first book . chap. . pag. . lin . . among the celts and gauls ] who are reckoned for one and the same people ; as for instance , those gauls , who removed into the lesser asia , mixing with the greeks , were called gallo-graeci , but by the greeks were styled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , whence by contraction , i suppose 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . l. . bellagines , that is , by-laws . ] from by , that is , a village , town or city , and lagen , which in gothish is a law ; so that it signifies such laws , as corporations are govern'd by . the scots call them burlaws , that is , borough-laws . so that bellagines is put for bilagines or burlagines . this kind of laws obtains in courts leet and courts baron , and in other occasions , where the people of the place make their own laws . chap. ii. pag. . l. . adrastia , rhamnusia & nemesis . ] which is all but nemesis the goddess of revenge , called adrastria from king adrastus , who first built her a temple ; and rhamnusia from rhamnus a village in the athenian territory , where she was worshipped . l. . elohim , that is , gods. ] and so judges are properly called according to the original notation of the word , whose root 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 alah , though in hebrew it signifie to curse , yet in the arabick language , a descendent of the hebrew , it betokens to judge . thus 't is said in the psalms , god standeth in the congregation of the gods , and i have said , ye are gods , &c. l. . it subjoins to it the name of god. ] to wit , that name of his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 el , which signifies a mighty god. in this sense the cedars of god are lofty stately cedars ; and by moses his being fair to god , is meant , that he was exceeding fair . pag. . lin . . not only berecynthia , but also juno , cybele . ] why ! cybele is the very same goddess , who was called berecynthia from berecynthus a hill of phrygia ( as also cybelus was another ) where she was worshipped . and she had several such names given her from the places of her worship , as dindymene , pessinuntia , idaea , phrygia . this then was a slip of our worthy author's memory or his haste . chap. iii. pag. . lin . . not by the number of dayes , but of nights . ] thus in our common reckoning we say a sennight , that is , seven nights ; septinoctium , for what in latin they say septimana , seven mornings ; and a fortnight , that is , fourteen nights . again for sundayes and holy-dayes , the evening , which concludes the fore-going day , is said to be their eve , that is , evening . and the grecians agree with us in setting the night before the day , in that they call the natural day , which is the space of twenty four hours , comprehending day and night , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , night-day , not day-night . chap. iv. pag. . lin . . king phranicus . ] it is so ordinary a matter for historians , when they treat of things at great distance of time , to devise fables of their own , or take them up from others , that i doubt not but this phranicus was designed to give name to france ; whereas it was so called from the franks , who came to plant there out of franconia a countrey of germany , called east-france . l. . with corinus one of the chief of his company . ] from whom cornwall had its name , formerly called in latin corinia or cornavia ( say some ) now cornubia . and possibly if that were so , corinium also or cirencester , a town in glocestershire , and corinus too , the river churne , that runs by it , owe their appellations to the same noble person . l. . new troy , that is , london . ] called also troynovant , and the people about it called trinobantes or trinovantes , from whom also the city it self was styled augusta trinobantum , that is , the royal seat of the new trojans . l. . king belin. ] who gave name to billinsgate , that is , belin's gate , as king lud to ludgate . pag. . lin . . eumerus messenius . ] some such fabulous writer as our sir john mandevil , who tells us of people and countreys , that are no where to be found in the world. chap. vi. pag. . lin . . in the time of brennus and belinus . ] the first of these was general of the gauls , who were called senones , and going into italy with them , sackt rome . there he built the city verona , called by his name brennona ; as he had done brennoburgum now brandenburg in germany . from his prowess and famed exploits , it is supposed that the britans or welsh do to this day call a king brennin . of the other , viz. belinus , some mention hath been made already . chap. vii . pag. . lin . . locrinus , camber and albanactus . ] from the first of these three brethren , to wit , locrinus , it is said , that the welsh call england lhoegr , that falling to the eldest sons share ; from the second camber , that a welsh-man is named cumra , and the countrey cambria ; and from the third albanactus , that scotland , or at least good part of it retains the term of albania , a title still belonging to the king of britain's second brother , the duke of york . though for my part for this last name of albanactus i am somewhat of opinion , that it might be devised by some smattering monk purposely in favour of the trojan story , as much as to say in a mungrel word alba 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 king of alba , a city of italy built by one of aeneas his sons . l. . gavelkind . ] from the saxon gafel or gafol , a debt or tribute , and cyn or kynd , the kindred or children ; or , as mr. lambard , gif eal cyn , i. e. given to all who are next of kin ; or , as vorstegan , give all kind , i. e. give to each child his part . an ancient custom of the saxons , whereby the fathers estate was equally divided amongst his sons ; as it is still amongst the daughters , if there be no sons . it obtains still in several places , especially in kent by the concessions of the conqueror . pag. . lin . . the laws of second venus . ] not having plato by me , nor any other means to inform my self better , i imagine that by the first venus they mean the force of lust and beauty , which doth so naturally incline people to a desire of union and copulation ; and by the second venus consequently is intended that prudential reason , by which men according to wholsome and equal laws easily suffer themselves to be gathered into societies , and to comply with one another in mutual indearments . p. . lin . . jupiter's register . ] 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the greek proverb , is the skin of that goat , which nursed him in his childhood , of which after her death in honour of her memory , and reward of her services , he made his register , to enroll therein and set down upon record all the concerns of mankind . lin. . of some aethalides . ] he was the son of mercury , and had the priviledge allowed him to be one while among the living , another while among the dead , and by that means knew all that was done among either of them . the moral is plain , that he was a great scholar , who what with his refin'd meditation and study of books , which is being among the dead , and what by his conversation with men , had attained great knowledge and prudence : so that pythagoras himself , as modest as he was to refuse the title of wise man , and to content himself with that of a philosopher , that is , a lover of wisdom , yet was fond of the counterfeit reputation of being thought to be he , giving out according to his own doctrine of transmigration , that he was the man. chap. ix . p. . lin . . what ? that those very letters , &c. ] the authors expression here may seem somewhat obscure ; wherefore i think fit to set down this by way of explication . he sayes , that the letters which the greeks used in caesar's time , and which we now use , are rather such as the greeks borrowed from the gauls than what they had originally of their own . this he proves in the end of this paragraph by the judgement of several learned men. so then , if this were so , caesar , who without all question was well enough acquainted with the greek letters then in use , yet in all likelihood did not so well know what the true old gallick letters were , the people being strangers to the romans , and he having but lately had any converse with them , and so might very probably mistake , in thinking that , because the letters were the same , the gauls might borrow the greek letters to make use of ; whereas the contrary ( to wit , that the greeks , after the disuse of the phoenician letters , which cadmus had brought over into greece , took the gallick in their stead ) is averr'd by lazius , becanus , &c. chap. x. pag. . lin . . from the sixth moon . ] whether that were from the sixth month they began their reckoning , which among the romans , was august , therefore called formerly sextilis , as the rest that follow according to order , are styled september , october , &c. or whether it were from the sixth day of the moon 's age , ( as they apply by way of proverb quartâ lunâ nati to the unfortunate , hercules having been born on such a day of the moon ) is none of my business to determine , but to leave it to the readers own inquiry and judgement . lin. . nestor's triple age . ] which if it be reckoned according to this account of thirty years to an age , makes but ninety years in all . and though that also be a great age for a man to handle arms , and to attend the duty and service of war , yet that is not so extraordinary a case , but that others may be found in story to stand in competition with him . besides it falls short of that description , which homer hath given of him , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . which implyes , that he had out-lived two generations ( to wit , the fathers which had been bred up with him , and the sons which had grown up into his acquaintance ) and that now he reigned among the grand-children , the third generation , the two former having been swept off the stage . and in this sense the latins took it , as appears by horace , who sayes of him ter aevo functus , that he had gone through the course of nature , lived out the life of man , three times over ; and in that he is styled by another old poet triseclisenex , that is , the three hundred years old gentleman ; for as aevum in the one signifies the whole space of humane life , so seculum in the other is constantly taken for a hundred years . pag. . lin . . greece , all over italy . ] for all the lower part of italy was at that time inhabited by the greeks , and from them called magna graecia , or graecia major , in opposition , i suppose , only to sicily the neighbouring isle , as being alike inhabited by greeks , but of less extent . lin. . voitland . ] a province of germany , in the vpper saxony . lin. . having their heads uncovered . ] that as they were bare-footed , so they were bare-headed also , perfect gymnosophists . the latin is nudis pedibus , capita intectae , graecanico pallio & cucullato , penulâque , and may be rendred indeed , having their heads covered or muffled . but how ? with a pall hooded and a satchell . i , but what had the satchell to do with their heads , that hung at their side , and so they are pictured . but to pass this , reader , thou art at thy own choice , to take which interpretation of the two thou wilt ; for the latin word intectae , as i said , admits of either . chap. xii . pag. . lin . . the women carried it for minerva against neptune . ] there is another account given of this story , that these two gods being in a contest , which of them should be intitled to the presidence of this city athens , they did each of them , to oblige the community in their favour , by a miracle cause to rise out of the ground , the one ( neptune ) an horse , to denote prowess and warlike courage , the other ( minerva ) an olive-tree loaden with fruit , an emblem of peace and fruitfulness ; and that the citizens preferr'd the latter , as the greater merit and more welcome blessing . lin. . juno , salacia , proserpina . ] juno was jove the thunderer's consort , as proserpine was the forc'd mate of grim pluto , the infernal queen . the third , salacia , lady of the sea , was wife to neptune , as ▪ s. austin hath it out of some of the old roman writers : though among the poets she generally pass by the name of amphitrite . pag. . lin . . amalasincta , artemisia , nicaula , &c. ] these brave ladies or she-heroes are famous upon record , and need not any thing further for their commendation , but their name . this artemisia mentioned here , was not the wife of mausolus , a vertuous and magnificent woman too , but another who lived in xerxes's time , a great commandress , in alliance with him . nicaula , it seems , though whence he learn't her name , i cannot tell , for scripture gives it us not ; was she , who is there called the queen of the south , a great admirer of solomon's wisdom . chap. xv. pag. , . the inscriptions , which are left un-englished , are only brought in , to evidence , that there were several roman colonies , beside that at maldon , called colonia victricensis , planted up and down in britain ; to wit , at york , at chester , at glocester , and i doubt not but at colchester too , no less than there was one at cullen in germany , as the very name of them both imports , colonia . and that ours hath an addition of chester to it , is usual to some other cities : colchester for colnchester , which in latin would be colonia gastri , or rather coloniae castrum , the castle or garrison of the colony . chap. xvi . pag. . lin . . now you for your part are gods vicegerent in the kingdom . ] they are the words of pope eleutherius in his letter to lucy , the first christian king , which was in the year of our lord . from whence we may fairly conclude , that in those early dayes , the pope of rome according to his own acknowledgement had no such pretensions as now for several ages since they have made , upon the rights of princes , to the great disturbance of the world , and reproach of christian religion . and indeed this is the more considerable , in that such was the simplicity of devotion in those early converts , and such the deference , which princes who embraced the christian faith , especially from the missionaries of rome , had for that holy see , as appears by this one single instance ; that it had been no hard matter , nor could be judged an unreasonable thing , for them to lay claim to a right , and assert a power , which was so voluntarily offered . further i add , that seeing the donation of constantine , besides that it was alwayes look't upon as a piece of forgery , was at best , supposing it true , but an imperial grant and concession , which would not be of authority enough to bear up the popes supremacy in all other kingdoms of the earth ; and seeing pope boniface , who was the first that with bare face own'd it , his complyance with phocas was so grosly wicked , that none of their own writers but are ashamed to make that transaction betwixt those two , an argument for the papal pretence : seeing , i say , it is so , if the pope be intitled , as their canonists pretend , to an universal dominion by vertue of his office , and by commission from christ and his chief apostle s. peter , how came it to pass , that the bishops of rome all along till boniface , were so modest , as not to challenge any such rights or powers ; nay , upon occasion to declare against such pretences , as antichristian ; which , if that be true , that the pope is by his office , and by a divine commission instated into a supremacy , was in effect no less , than to betray the cause of christ and his church : how came it to pass , that eleutherius should neglect such a seasonable and exemplary opportunity of maintaining and exercising his right , and should rather chuse to return it in a complement back to the king his convert ? vicarivs verò dei estis in regno , sayes he , you are god's vicar in your kingdom : which title now the pope doth with as much arrogance challenge to himself , as here one of his predecessors doth with modesty ascribe to the king. lin. . with the title of spectabilis . ] towards the declension of the roman empire , it was usual so to distinguish great offices with peculiar titles , as spectabilis , clarissimus , &c. so among the italians , magnifico to a senator of venice , illustrissimo to any gentleman , eminentissimo to a cardinal : so with us the term of highness is given to a prince of the blood , excellence to a vice-roy or a lord lieutenant and to a general of an army , grace to an arch-bishop and to a duke , honour to a lord , worship to an esquire , &c. chap. xvii . p. . lin . . fabius quaestor aethelwerd . ] why he calls him fabius quaestor , is at present past my understanding . did he take upon him a roman name ? was he in any such office as quaestor , i. e. treasurer or receiver general , wherein he behaved himself like a fabius ? or did he intitle his book by that name ? i am to seek . chap. xviii . pag. . lin . . whatsoever there was in pandora of good and fair. ] she was a woman made by jupiter's own order , and designed to be the pattern of female perfection : to which end all the gods contributed to the making of her several gifts , one wisdom , another beauty , a third eloquence , a fourth musick , &c. chap. xix . p. . lin . . wapentakes . ] which in some of our northern countreys is the same as we call other-where a hundred , from the saxon word waepen , i. e. arms , and tac , i. e. touch ; as one should say , a touching or shaking of their arms. for , as we read it in king edward's laws , when any one came to take upon him the government of a wapentake , upon a day appointed all that owed suit and service to that hundred , came to meet their new governour at the usual place of their rendezvouz . he upon his arrival , lighting off his horse , set up his lance an end ( a custom used also among the romans by the praetor at the meetings of the centumviri ) and according to custom took fealty of them . the ceremony of which was , that all who were present , touch't the governours lance with their lances , in token of a confirmation : whereupon that whole meeting was called a wapentake , inasmuch as by the mutual touch of one anothers arms , they had entred into a confederacy and agreement to stand by one another . this fashion , they say , the saxons took up from the macedonians their progenitors . others will have it from tac to take , and give this account of it , that the lord of the hundred at his first entrance upon the place was used to take the tenants arms , surrendred and delivered up to him by themselves , in token of subjection by way of homage . sir thomas smith differs from both these ; for he sayes , that at the hundred meeting , there was a muster taken of their weapons or arms ; and that those who could not find sufficient pledges for their good abearing , had their weapons taken away ; so that in his sense a wapentake is properly armilustrium , and so called from taking away their weapons or arms , who were found unfit to be trusted with them . l. . for the ceremony of the gown . ] he alludes to the roman custom , with whom the youth , when they arrived at mans estate , were then allowed to wear togam virilem , to put on a gown , the habit of men ; whereas before that , they were obliged to wear a coat peculiar to the age of childhood , called praetexta : whence papyrius , though yet a child , being admitted into the senate-house for his extraordinary secrecy and manly constancy , was called papyrius praetextatus . pag. . lin . . morgangheb . ] or morgingab , from morgin , which in high dutch signifies the morning , and gab , a gift ; to wit , that present , which a man makes to his wife , that morning he marries her . chap. xx. pag. . lin . . tityus his liver . ] a gyant , who for ravishing of latona was adjudged to have his liver after death prey'd upon continually by a vulture , which grew up again as fast as it was wasted . the equity of which punishment lay in this , that the liver is reputed the source and seat of all lusts and unlawful desires , and doth naturally , as some physicians hold , receive the first taint of venereal distempers ( the rewards of impure mixtures ) according to that of solomon , speaking of an adulterer , till a dart strike thorough his liver ; from whence they gather , that that , which we now call the french pox , was not unknow even in that age of the world. l. . prema and mutinus . ] this latter a title given to priapus , much-what such a god , as baal peor was ; the other a goddess forsooth much to the same purpose . for the old romans had gods and goddesses , as the present romans have saints , for every thing , for every action of life . but their offices were such , as the modest reader will easily excuse the want of explaining them . lin. . sayes progne to her sister philomel . ] tereus king of thrace having married progne daughter of pandion king of athens , when he went to fetch her sister philomel , ravished her by the way on ship-board ; which occasioned a bloody revenge in the murder of his son itys . at last they were turned all four into so many several sorts of birds ; progne into a swallow , philomel into a nightingale , tereus into a lapwing , and itys into a pheasant . chap. xxi . pag. . lin . . with head-money called wergild . ] a word compounded of the saxon were , the price or value or worth of a man , and geld or gild , a payment . that is , he that had killed another , was to buy off his life , by paying the full value of the person slain . the prizes or rates are set down in ethelstan's laws , by thrimsa's , a kind of coyn , or piece of money , of the value of three shillings , saith mr. lambard ; which being reduced to our sterling stand thus . a peasant , l. s. a thane , or one in orders , l. a general , or chieftain , l. a bishop , or alderman , l. an arch-bishop , or peer , l. and a king , l. half of which last summ was to go to the kindred , and the other half to the publick . and these rates are set , he sayes , by the common law of the english. the reason of this pecuniary compensation , was their tenderness of life , that two men might not dye upon the account of the same mischance , according to that saying in an ancient law , nulla sit culpa tam gravis , ut vita non concedatur , propter timorem dei. but yet withal in some cases of premeditated or clandestine murder , they were not excused from making satisfaction with their life ; or in case one were not able to pay the were , or fine , he was punished with death . i called this head-money , because in latine it is termed capitis aestimatio , the value or price of a mans head : not in that sense as either chevage or poll-money is so called . chap. xxii . pag. . lin . . in the margin caxton is quoted , a book , it seems , rare ; of which he saith , that book , that goes up and down by this name , mr. war in townsend of lincolns-inn , a gentleman noble by his descent and learning both , very friendly lent me for my use in a very fair manuscript ; which courtesie of his , i cannot but think it a foul shame for me , not to own and acknowledge with all thankfulness . pag. . lin . , . even now in the time of those that are called the good. 't is william of malmesbury , whom he quotes ; etiam nunc tempore bonorum . whether he mean good princes , who would have those laws observed , or honest subjects , who would observe them , or whether there were any sort of men in his time that went by that character of boni , good men , is more than i have to say . there was at one time a sort of religious persons , that went by the name of bon hommes ; but that can have nothing to do in this business . chap. xxiii . pag. . lin . . every native home-born lawful man. ] in the latin it is indigena legalis , in the saxon law-term it is inlaughe or inlaugh , that is , one that is under the law , inlagatus , who is in frank pledge , or belongs to some court leet : as all males from twelve years old and upwards were obliged to be . so bracton tells us . lin. . decenna . ] the same as decuria , which is generally rendred a tithing , i.e. a company of ten men with their families , all of them bound to the king to answer for one anothers good and peaceable behaviour . from the latin word it is called a dozein , and the people that belong to it are called deciners or dozeniers , that is , decennarii . the chief of them is termed decurio or decanus friburgi , the tithing-man or headborough . and all males of twelve years age and upwards ( except nobles and religious persons ) were obliged to be of some dozein or other . but now there are no other dozeins but leets , and no other security there given for the kings peace , but the persons own oath . lin. . friborgh . ] from the saxon freo , free , and borgh ▪ a surety or security : or , as some write it , fridburgh , from frid , peace , and burgh , a surety . if it be taken for the person , it is the same that a deciner ( we now spoke of ; ) if for the action , it is their being sureties for one another : if for the company of these mutual ingagers , 't is the same as decuria , a tything , in saxon tienmannatale , i. e. the number of ten men . the normans retained the same custom , but altered the name , calling it frankpledg , from the french , frank , i. e. free , and pledg , i. e. surety . and the compass or circuit of this frankpledg the same as that of friburg , to wit , the decenna or dozein , i. e. ten housholds . lin. . manupastus . ] of this bracton sets down a rule for law , that every person , whether free-man or servant , either is or ought to be in frank-pledge or of some bodies mainpast . now he is of ones mainpast , saith he , who is allowed victuals and clothes , or victuals only and wages . and this was the reason , why great men were not obliged to be of any ordinary dozein , because bishops , earls and barons , as the same bracton informs us , ought to have their menial servants in their own friborgh , and to answer to the king for their behaviour , and to pay what forfeits they should make , if they had not the persons themselves forth-coming . and this , sayes he , is the case of all those who are of any ones mainpast . chap. xxiv . p. . lin . . john scot erigena . ] a school-man famous for his subtilty , called in latin , johannes duns scotus . whether duns were the name of his family , as it might be , johannes de dunis , which in english would be john downs ; or whether it were a nickname given him for his slovenliness and seeming blockishness , from the word dunce , which in barbarous latin is dunsa , ( for so in camden's remains we find the emperour charles , as i take it , putting that question to him , as he sate at table over against him , quid interest inter scotum & sotum , what difference between a scot and a sot ? to which he as freely replyed , mensa , the table , sir ) i shall not determine . but scotus or scot , is the name of his countrey , he being a scotch-man , and for that reason called also erigena , that is , irish born , to wit , a highlander ; for those people were originally irish , and came out of that island over into the north parts of scotland . now ireland is by several authors greek and latin called ierna , and by the inhabitants themselves erin . l. . the goddess anna perenna . ] the lady president of the year , anna ab anno ; to whom they addrest their devotions , that she would perennare , that is , preserve and continue health and plenty and prosperity from year to year ; for which reason she was called anna perenna . now our author here brings in long-lived nestor and this goddess , to shew that those good fellows in quaffing of healths , do wish muchos annos , as the spaniard saith , many and many a years life to their absent friends , while in the mean time by tossing off so many bowsing canns , they shorten their own lives . pag. . lin . . englescyre . ] or englecerie , that is , the being an english-man . for there was a law made by king knute in favour of his danes ( and so afterward it was interpreted in behalf of the francigenae , french-men , or whatever foreigners ) that if any such were privily murdered or slain , the village , where the fact was done , should be amerced in a lusty fine to the king , unless they could prove englecerie , that is , that the murdered person was an english-man , one born of english parents , in which case there was no fine levied . so that the danes and french , when they governed here , provided they might secure themselves from the english , were well enough content to let them destroy one another . chap. xxv . pag. . lin . . an olympiad . ] an account of time used by the greeks , consisting of four years , so called from the olympick games , which were celebrated in honour of jupiter olympius every fifth year . this reckoning began first in the year of the world three thousand one hundred seventy four . in the second book . chap. i. pag. . l. . by right of fréehold . ] allodii jure , that is , by a mans own right , without acknowledgment of service or fealty , or payment of rent to any other as a superiour lord. in which respect it is opposed to an estate in fée , wherein though a man hath a perpetual right to him and to his heirs for ever , yet seeing he owes a duty and service for it , it cannot be said properly and simply to be his own . and such are all mens estates here in england , but the kings in the right of his crown , who cannot be supposed to hold of another , or to owe fealty to any superiour , but to god only . lin. . vnder military service . ] or knights service , that is , to find the king such a number of men and arms in time of war , as it is here expressed . see cowell in the word chivalry . indeed the clergy before the conquerour in the time of the saxons ( as we find it in the five and twentieth chapter of the first book ) were allowed to be free from secular services , but with an exception and reserve however of these things , to wit , expedition , repairing of castles and building of bridges , from which last duty the high-priests among the romans were called pontifices , i. e. bridge-makers . now this bringing of the bishops baronies under knights service , was sure enough design'd to engage them into a close dependence upon the crown , and to take them off from hankering after any forreign power , to which they might pretend to owe any subordination ; as all along the times of popery , out of reverence to the holy see , they were forward enough upon occasion to think themselves obliged to do , even to the high discontent and great disservice of their kings . chap. ii. pag. . lin . . ready money . ] so i render viva pecunia : which though spelman saith it is so called , that it may the more expresly signifie pecudes , i. e. cattle ; yet he doth not to me , i confess , make out by any fair instance that it doth ever so signifie ; and that it cannot be taken in that sense here , is plain from what immediately goes before , quot animalia , imò quantum vivae pecuniae quisque possidebat : where animalia living creatures include pecudes the cattle . chap. iii. pag. . lin . . boseham . ] what earl godwin's trick was , or wherein the conceit lay , i cannot at present well imagine , unless it were in the equivocation or misunderstanding of the word boseham , as it falls in with the word bosom in the pronunciation and sound of it ; thus . supposing the earl at meeting of the arch-bishop , coming up to him upon pretence of saluting him said , give me your boseham , my lord ; to which the arch-bishop thinking belike , he might , by way of desiring his pastoral embrace , mean only his bosom , readily made answer , i give you my bosom ; which the earl with a cunning fetch interpreted a grant of his estate of boseham . pardon , reader , my mistake , if it be one ; since i have no better account , from my own guess , to give , meeting with no help from our law-dictionaries . chap. iv. p. . lin . . the first sheriffs of counties . ] a sheriff or shyrereed signifies the governour of a county , called in latin vice-comes , as deputy to the count or lord or chief man of the county ; though even in the confessor's time he was reckoned the kings officer , and not the counts . this office , as mr. camden tells us , was first set up by king alfred , who also divided england into counties , and those counties again into hundreds and tythings . lin. . other judges without appeal . ] this should seem to be the court of chancery : for which reason the lord chancellor is said to keep the kings conscience , as here these judges are compared to the kings bosom . lin. . acting a busiris his part . ] i. e. treating strangers ill ; he being a cruel tyrant of egypt , who slew strangers , and sacrificed them to his gods : whence the proverb , busiridis arae . pag. . lin . . that he should pay it at the scale . ] that is , should pay it by weight , or according to full weight . chap. vi. pag. . lin . . being lord chief justice of the whole kingdom . ] in the latin it is thus expressed ; totius regni placitator & exactor : where i confess the former title of the two gave me the occasion of my mistake , as if he had been chief justice of the common pleas : whereas i should rather have rendred it thus ; who had been ( to wit , in king rufus his time ) pleader or demander and receiver of the kings duties throughout the whole kingdom . for such an officer this exactor regius was , otherwise called grasio . see spelman upon both those words . lin. . in the times of the saxons a hereot . ] this at first was a tribute given to the lord for his better preparation towards war ; but afterward though the name were kept , the thing was altered , being taken for the best chattle , that the tenant hath at the hour of his death , due to the lord by custom , be it horse , ox , &c. that hereot and relief do not signifie the same thing , appears by this , that they are both often sound to be paid out of one and the same tenure , and again that the heir alway succeeds into the estate upon the payment of the relief , but not alwayes upon the payment of the hereot . lin. . in french is called a relief . ] from the verb relever , to raise again and take up the estate which had faln into the lords hand by the death of the ancestor . it is a summ of money , which the new homager , when he is come to age , payes to the lord for his admission or at his entrance into the estate . whence by the old civilians 't is called introitus , and in greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . this summ was moderately set ; wherein it differed from ransom , which was much more severe . the kings rates upon his homagers were thus : an earls heir was to give an hundred pounds , a barons an hundred marks , a knights an hundred shillings at most ; and those of lesser estate less , according to the ancient custom of their tenures : as spelman quotes it out of the charter of henry the third . pag. . lin . . of the greater uavasors . ] they were a sort of gentlemen next in degree to the barons . they did not hold immediately of the king , but of some duke , marquess or earl. and those that held from them again , were called valvasini , or the lesser vavasors . there is little certainty what their offices or priviledges were , or indeed whence they were so called ; whether qu. ad valvas stantes , or valvae assidentes , for their sitting or standing at their lords door , ( if those of that quality did so ) as some would have it ; or that they kept the doors or entrances of the kingdom against the enemies , as spelman sayes ; or whether from vassal●i , as the feudists derive the name , from that inferiour tenure they had mediately from the king by his great lords ; which seems the more likely , because these greater vavasors , who did so hold , are sometimes termed valvasores regii and vassi dominici , that is , the kings vassals . lin. . her dowry and right of marriage . ] in the latin it is dotem suam & maritagium . now dos is otherwise taken in the english , than in the roman laws ; not for that which the man receives with his wife at marriage , a portion : but for that which the woman hath left her by her husband at his death , a dowry . and maritagium is that which is given to a man with his wife , so that 't is the same as dos among the romans , saith spelman . but this is too general , i think , that the man should be obliged to return at his death all to his wife that he had with her , beside leaving her a dowry . i am therefore rather inclined to cowell , who tells us , maritagium signifies land bestowed in marriage ; which , it seems , by this law was to return to the wife , if her husband dyed before her . the word hath another sense also , which doth not belong to this place , being sometime taken for that which wards were to pay to the lord for his leave and consent that they might marry themselves , which if they did against his consent , it was called forfeiture of marriage . lin. . the common duty of money or coinage . ] so i render the word monetagium . for it appears , that in ancient times the kings of england had mints in most of the countreys and cities of this realm . see cowell in the word moniers . for which priviledge , 't is likely , they paid some duty to the chief place of the mint . thus in doom●sday we read , as spelman quotes it , that in the city winecestre every monyer paid twenty shillings to london ; and the reason given , pro cuneis monetae accipiendis , for having stamps or coins of money . for from this latin word cuneus ( which our lawyers have turned into cuna , from whence the verb cunare ) comes our english word coyn. now it is more than probable , that the officers of the chief mint might by their exactions upon the inferiour mints give occasion for the making of this law. lin. . or children or parents . ] by parent here we are to understand not a father or mother , but a cousin , one a-kin ; as the word signifies in french , and as it is used in our laws . and indeed the latin word it self began to have that sense put upon it in vulgar speech , toward the declension of the empire , as lampridius informs us . pag. . lin . . a pawn in the scarcity of his money . ] that is , if he were not able to pay his forfeit in specie , i. e. to lay down the money , he was to give security by a pawn of some of his goods or chattels . see cowell in the word gage . this in latin is called vadium , a pawn or pledge , from vas , vadis , a surety . hence invadiare , to pawn or ingage a thing by way of security , till a debt be paid . lin. . nor shall he make amends . ] from the french amende , in our law-latin emenda : which differs from a fine ( or mulct ) in this , that the fine was given to the judge , but amends was to be made to the party aggriev'd . now there were three sorts of this amende , the greater which was like a full forfeiture , the mid-one at reasonable terms , and the least or lowest which was like a gentle amercement . this distinction will help to explain the meaning of this law. l. . per fée de hauberke . ] this in latin is called feudum hauberticum , i. e. loricatum , sayes hotoman , from the french word haubert , that is , a coat of mail , when a vassal holds land of the lord on this condition , that when he is called , he be ready to attend his lord with a coat of mail or compleat armour on . now haubert , as spelman tells us , properly signifies a high lord or baron , from haut or hault , high , and ber ( the same as baro ) a man or baron . and because these great lords were obliged by their place and service to wait upon the king in his wars on horse-back with compleat armour , and particularly with a coat of mail on : hence it came , sayes he , that the coat of mail it self was also called haubert ; though he doth afterward acknowledge that the word is extended to all other vassals , who are under that kind of tenure . but then at last he inclines to think , that the true ancient writing of the word is hauberk ( not haubert ) as it were hautberg , i. e. the chief or principal piece of armour ; and berg he will have to signifie armour , as he makes out in some of its compounds , bainberg armour for the legs , and halsberg armour for the neck and breast : and derives it from the saxon beorgan , i. e. to arm , to defend . add to this , saith he , that the french themselves ( and we from them ) call it an haubergeon , as it were haubergium . lin. . from all gelds . ] the saxon word geld or gild signifies a tribute or tax , an amercement , a payment of money , and money it self : whence i doubt not , but the best sort of money was called gold. it is from the verb geldan or gyldan , to pay . in latin it is geldum , and not gilda , as cowell writes it . for this signifies quite another thing , a fraternity or company of merchants or the like . whence a gild-hall , that is the hall of the gild or society : such as was once the stilyard , called gildhalla teutonicorum , the gild-hall for the dutch merchants from the hanse-towns . chap. vii . pag. . lin . . iphis and ianthis and ceneus . ] persons mention'd by ovid , who changed their sex , from female to male. iphis was a maid of creet , who after her metamorphosis when she turn'd to man , took ianthe to wife : and caenis ( for that was her maiden name ) was a thessalian girl , whom neptune made a whore of first , and then at her request a man , who thenceforward went by the name of caeneus . lin. . cheats , whom they commonly call coyners . ] in malmesbury's latin , trapezitas , quos vulgò monetarios vocant . which bare citation is all the account , that spelman gives of the word monetarius . it doth properly signifie an officer of the mint , that makes and coyns the kings money ; a monier . but here by the historian's implying that such fellows , as this law was made against , were falsarii , cheats , and by our author 's terming of them adulteratores monetae , counterfeiters of coyn : we must understand them to be false coyners , clippers , washers , imbasers of the kings coyn , and the like . and therefore i render'd trapezitas ( which otherwise is a word of innocent meaning for money-changers , bankers , &c. ) in the historian's sense cheats . chap. viii . pag. . lin . . every hide of land. ] it is so called from the saxon word hyden , to cover ; so that thus it would be the same as tectum in latin , a dwelling-house . and thus i question not , but there are several houses called the hide : for i know one or two my self so called , that is , the capital messuage of the estate . nor is it so confined to this sense , but that it takes in all the lands belonging to the messuage or manour-house , which the old saxons called hidelandes , and upon some such account no doubt hidepark had its name , as a park belonging to some great house . now as to the quantity , how much a hide of land is , it is not well agreed . some reckon it an hundred acres , others thereabouts , by making it contain four yardlands , every yardland consisting of twenty four acres . the general opinion is , that it was as much as could be ploughed with one plow in a year , terra unius aratri culturae sufficiens . and thus it should be much what the same as carrucata terrae , i. e. a plough-land . from bede , who translates it familia , they gather it was so much as could maintain a family . there is mention made of these hides in the laws of king ina , an hundred years before king alfred , who divided the countrey into counties or shires . and taxes and assessments were wont to be made according to these hides ; up as high as king ethelred's time in the year of our lord . since the conquest , william the first had six shillings for every hide in england , rufus four , henry the first here three for the marriage of his daughter . pag. . lin . . this right is called wreck . ] i. e. by which the king claims shipwrack't goods cast on shoar . for though by the law of nature such things , as being nullius in bonis , having no owner , every one that finds them may seem to have a right to them ; yet by the law of nations they are adjudged to the prince as a special priviledge by reason of his dignity . now wreck ( or as the french call it varec ) properly signifies any thing that is cast on shoar , as amber , precious stones , fishes , &c. as well as shipwrack't goods : from the saxon wraec , i. e. any thing that is flung away and left forlorn ; though use hath limited the word to the later sense . chap. ix . pag. . lin . . the roman laws were banisht the realm . ] i suppose there may be some word missing or mistaken in the latin , à regno jussae sunt leges romanae : but that which follows , the forbidding of the books , obliged me to that interpretation : for why should the books of those laws be prohibited , if the laws themselves were ( as the latin reading seems to import ) ordered and ratified by the realm . wherefore i suppose some mistake , or omission , and for à regno jussae , read à regno pulsae or exulare jussae , &c. unless you would like to have it thus rendred , commanded out of the kingdom : which i confess would be a very odd unusual construction . chap. x. pag. . lin . . three hundred marks of gold. ] a mark weigh'd eight ounces , and as cowell states it out of stow , it came to the value of l. s. d. at this rate three hundred marks of gold come to five thousand pound ; and to every bishop five marks , supposing only ten bishops , come to l. s. d. which is a very unlikely summ in this business . 't is true , the value of it , as of other coyns and summs , might vary . and so we find in spelman , that an uncertain author reckons a mark of gold to be worth fifty marks of silver . but then 't is as uncertain , what marks of silver he means . for if they be such as ours are ( and as they were in king john's time ) at s. d. then a mark of gold will be of the value of l. s. d. which is just double to the former value of l. s. d. ( which being resolved into marks of silver , makes but . ) but in ancient times a mark of silver was only s. d. so that fifty of them will make but l. s. another instance we meet with , where one mark of gold is accounted equivalent to ten marks of silver ; which taking a mark for s. d. comes to l. s. d. another , where nine marks of silver pass for one mark of gold , in a payment to the king : which is just six pound . and these three last accounts agree pretty well together . taking the middlemost of the three , viz. a mark of gold at ten marks of silver ; thus the above named summ of three hundred marks of gold , that is , three thousand marks of silver amounts to two thousand pound ; and the five marks to every bishop ( supposing but ten bishops ) come to l. s. d. but if we take these marks of silver at s. d. the account will grow much less . for ten such marks are but l. s. so that the three hundred marks of gold at this rate will come but to l. sterling . but that these marks of the ancient and lower estimate are not here intended , may probably enough be gathered from one passage more we find there , centum solidi dentur vel marca auri , where , if solidi stand for shillings ( for they may be taken for soulx as the french call them ) a mark of gold is made of equal value with l. sterling . and thus three hundred marks of gold come to fifteen hundred pound . i confess after all , most of these accounts of the mark , gold or silver , may be admitted of , as having possibly at some time or other been true ; since mony , both in its coyns and summs , hath in several ages of the world , risen , and fallen according to its plenty or scarcity . lin. . being arighted and accused of any matter . ] or rather in the law-spelling arrested ; in latin rectatus , that is , ad rectum vocatus , convened before a magistrate and charged with a crime . thus ad rectum habere , is in bracton , to have a man forth coming , so as he may be charged and put upon his tryal . it may be also rendred , taken upon suspicion . it is written sometime retatus and irretitus . pag. . lin . . to give suretiship for the remainder . ] i confess i do not well know how to apply to this place that sense , which our common law takes the word remainder in , for a power or hope to enjoy lands , tenements or rents after anothers estate or term expired ; when an estate doth not revert to the lord or granter of it , but remains to be enjoyed by some third person . what if we say , that as bishops could not ( because their estates are of alms ) grant any part of their demeans ad remanentiam , for ever or to perpetuity , so here excommunicate persons were not obliged dare vadium ad remanentiam , to find sureties for continuance or for perpetuity , that is , for their future good behaviour , but only to stand to the judgement of the church in that particular case for which they were at present sentenced . chap. xi . pag. . lin . . if a claim or suit shall arise . ] in the latin , si calumnia emerserit , a known and frequent word in our law , which signifies a claim or challenge , otherwise termed clameum . lin. . till it shall by plea be deraigned . ] or dereyned : which is in french dereyné , in the latin , disrationatum , which as it hath several significations in law , so here it imports , after a full debate and fair hearing , the determination of the matter by the judgement of the court. chap. xii . pag. . lin . . by the name of yumen . ] the same say some , as the danes call yong men . others derive the word from the saxon geman , or the old dutch gemen , that is , common , and so it signifies a commoner . sir tho. smith calls him yoman , whom our laws term legalem hominem , a free-man born ( so camden renders it by ingenuus ) who is able to spend of his own free land in yearly revenue to the summ of forty shillings , such as we now , i suppose , call free-holders , who have a voice at the election of parliament-men . but here the word is taken in a larger sense , so as to include servile tenure also or villenage . chap. xiii . pag. . lin . . leude-men . ] from the saxon leod , the common people . it signified in law a subject , a liege man , a vassal , a tenant : hence in high-dutch a servant was called leute , in old english a lout . but in common acception lewd was formerly taken for a lay-man , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , one of the people , or for any illiterate person . now it is used to denote one who is wicked or loose and debauched . chap. xiv . pag. . lin . . the states of the kingdom , the baronage . ] he means the whole parliament , and not only the house of lords by the word baronage . for though by barons , now we properly understand the peers of the realm ; yet anciently all lords of manours , those who kept court-baron , were styled barons : nay spelman tells us , that all free-holders went by that name before the free-holds were quit letted out into such small pittances , as now they are , while noble-men kept their lands in their own hands , and managed them by their vassals . cowell gives this further account of those lords of manours , that he had heard by men very learned in our antiquities , that near after the conquest all such came to parliament , and sate as nobles in the upper house . but , as he goes on , when by experience it appeared , that the parliament was too much pestered with such multitudes , it grew to a custom , that none should come but such as the king , for their extraordinary wisdom or quality , thought good to call by writ , which writ ran hâc vice tantùm , that is , only for this turn . so that then it depended wholly upon the kings pleasure . and then he proceeds to shew , how after that they came to be made barons by letters patents , and the honour to descend to their posterity . lin. . by way of safe pledge . ] that is , to oblige them to give security for the parties appearance against the day assigned ; who in case of default were to undergo the dammage and peril of it . pag. . lin . . st. peter's pence . ] these peter-pence were also called in saxon , romescot and romefeoh ( that is , a tribute or fee due to rome ) and rome-penny and hearth-penny . it was paid yearly by every family ( a penny a house ) at the feast of s. peter ad vincula on the first day of august . it was granted first , sayes our author out of malmesbury , by ina or inas king of the west-saxons , when he went on pilgrimage to rome , in the year of our lord . but there is a more clear account given by spelman ( in the word romascot ) that it was done by offa king of the mercians , out of an author that wrote his life . and it is this , that offa after thirty six years reign having vowed to build a stately monastery to the memory of st. alban the british protomartyr , he went on pilgrimage to rome , adrian the first then pope , to beg indulgences and more than ordinary priviledges for the intended work . he was kindly received , and got what he came for ; and the next day going to see an english school , that had been set up at rome , he for the maintenance of the poor english in that school , gave a penny for every house , to be paid every year throughout his dominion , ( which was no less than three and twenty shires at that time ) only the lands of s. alban excepted . and this to be paid at the feast of s. peter , because he found the body of the martyr on that day , for which reason it was also called s. peter's penny. and although at last these peter-pence were claim'd by the pope as his own due and an apostolical right , yet we find , that beside the maintenance of a school here mentioned , for which they were first given , they have by other kings been appropriated to other uses . thus we read that athelwolf father to king alured , who was the first monarch of this isle , granted three hundred marks ( the summ total of the peter-pence here , bating only an odd noble ) to be paid yearly at rome . one hundred for the honour of s. peter , to find lights for his church : another hundred for the honour of s. paul on the like occasion : and the third hundred for the pope's use to enlarge his alms. this was done in the year . when leo the fourth was pope . lin. . thirty pence of live money . ] possibly the worth or value of thirty pence in goods and chattels . king offa , in his grant thus words it , quibus sors tantum contulit extra domos in pascuis , ut triginta argenteorum pretium excederet ; who had an estate besides houses in lands , which might exceed the value of thirty silver pence . lin. . out of a rescript of pope gregory . ] we have the whole letter set down in spelman , which speaks in english thus , gregory the bishop , servant of the servants of god , to his worshipful brethren the arch-bishops of canterbury and york , and to their suffraegans , and to his beloved sons the abbots , priors , arch-deacons and their officials , appointed throughout the kingdom of england , unto whom these letters shall come , greeting and apostolical benediction . in what manner the pence of s. peter , which are due or owing to our chamber , are to be gathered in england , and in what bishopricks and dioceses they are owing , that there may arise no doubt on this occasion , we have caused it to be set down in this present writing , according as it is contained in the register of the apostolick see. out of the diocess of canterbury seven pounds and eighteen shillings sterling : out of the diocess of london sixteen pounds , ten shillings . and so of the rest . yeoven at the old city , april . in the second year of our popedom . there is some difference though in the account of the dioceses . for after lincoln he leaves out coventry and puts chichester for chester , l. and then after bath he puts in salisbury and coventry ( with a mistake l. s. for s. ) and leaves york last . besides every body knows there are more dioceses now than were then . this was gregory the fifth that wrote this , and it was ( our author tells us ) in the time of king edward the second . but edward the third in the year of the lord . and of his reign . forbad these peter-pence to be paid any more at rome , or to be gathered any longer in england . chap. xv. pag. . lin . . into six provinces or circuits . ] as they are for number still , with two judges a piece , though at first three . how these differ from what they now are , as to the counties , the reader may easily satisfie himself . here are thirty seven of them , as we now reckon : only with this difference , that monmouth and rutland are left out , and richmond and copland are put in . pag. . lin . . and if he perish , i. e. sink , let him lose one foot . ] for that in this tryal by water , was the sign and proof of guilt , if the party thrown in did not swim , which is quite contrary in the tryal of witches : as you will find in the next chapter , which treats of ordeals . lin. . the kings great assise . ] assise is a word , that hath many significations in our law. it is here in the title taken for a statute ; the assises ( i. e. the statutes and ordinances ) of king henry made at clarendon . but in this place it is used for a jury ; and it is either the great or grand assise , which serv'd for the right of property , and was to consist of twelve knights ; or the petty assise , which served for the right of possession only , and was made up of twelve lawful men . chap. xvi . pag. . lin . . the superstitions and fopperies . ] these you have also in sir h. spelman , with an incipit missa judicii , which shews that the church of rome did once approve of these customs , which since she hath condemned , notwithstanding her pretence of being infallible . i would to god , she would deal as ingenuously in throwing off those other errors and corruptions , we do so justly charge her with . chap. xvii . pag. . lin . . hogenhine . ] or agen-hyne , that is , ones own servant . it is written also home-hyne , that is , a servant of the house . lin. . holding in frank pledge . ] the latin is francus tenens . wherefore amend the mistake , and read holding in frank fee. for frank pledg is a thing of another nature , as belonging to a mans behaviour and not to his tenure . now frank fee is that which is free from all service , when a man holds an estate at the common law to himself and his heirs , and not by such service as is required in ancient demesne . pag. . lin . . the falcidian law. ] so named from one falcidius , who being tribune of the people in augustus his time , was the maker of this law. lin. . twenty pounds worth of land in yearly revenue . ] so i render . libratae terrae . for although cowell in proportion to quadrantata , or fardingdeal of land , which he saith is the fourth part of an acre , seem● at first to gather that obolata then must be half an acre , denariata a whole acre , and by consequence solidata twelve acres , and librata twenty times twelve , that is , two hundred and forty acres : yet this was but a conceit of his own . for by having found the word used with reference to rent as well as land , thus . libratas terrae vel reditûs , he is forced to acknowledge , that it must signifie so much land as may yield twenty shillings per annum . to which opinion spelman also giv● his assent . but what quantity of land this librata terrae is , cannot so easily be determined . cowell out of skene tells us , it contains four oxgangs , and every oxgang thirteen acres : if so , then it is fifty two acres , and twenty of them , which make a knights fee , come to one thousand and forty acres , which somewhat exceeds the account here set down of six hundred and eighty out of the red book of the exchequer . but there is a great deal of more difference still , as the account of the knights fée is given by others . in one manuscript we read , that a yardland contains twenty four acres , four yard-lands make one hide , ( that is , ninety six acres ) , and five hides make a knights fee , ( that is , four hundred and eighty acres ) the relief whereof is a hundred shillings . another manuscript hath it thus , ten acres according to ancient custom make one fardel , and four fardels ( that is , forty acres ) make a yardland , and four yardlands ( that is , one hundred and sixty acres ) make one hide , and four hides ( that is , six hundred and forty acres ) make one knights fee. a third reckons it otherwise , that sixteen yard-lands make a whole knights fee ; which if we make a yard-land to be twenty four acres ( according to the first account ) com●s to three hundred eighty four acres ; but if ( according to the second ) we take it for forty acres , it amounts to six hundred and forty acres . and , saith he , when they are taxed at six shillings four pence ( that is , every of the sixteen yard-lands , which make up the fee , at so much ) they make the summ of one hundred shillings ( or five pound , which was the ancient relief of a knights fee. ) but this is a mistake either of the author or the citation ; it is six shillings three pence , which makes that just summ ; from whence we learn also what proportion was observed by the lord in setting and demanding of the relief upon the next heir after his ancestor's decease . further in the kings writ , as glanvil cites it , it is said , that twelve plough-lands make one knights fee : which , allowing to a plough-land one hundred & twenty acres , amounts to one thousand four hundred and forty acres . in the main , as to the value of a knights fee , 't is enough what cowell tells us , that it was so much inheritance , as was sufficient yearly to maintain a knight wi●h convenient revenue , which in henry the thirds dayes , camden sayes , was fifteen pounds , and sir thomas smith rates at forty . but to confirm the account , which our author here gives us , we find in the statute for knights in the first of edward the second , that such as had twenty pounds in fee , or for term of life per annum , might be compelled to be knights . and as to the various measure of land ( of which we have had a remarkable instance in this business before us ) spelman hath given us good reasons for it ; since where the land was good , they might probably reckon the fewer acres to a yard-land , a hide , a knights fee , &c. and where it was barren , they might allow the more . beside , that some lords , who lett these fees , might be more bountiful and profuse , others more parsimonious and severe to their dependents ; and that the services which were imposed upon these fees , might in some mannors according to custom be lighter , in others upon agreement and covenant more heavy . all which might strangely diversifie the account , as to the quantity or measure of those lands , which were to make up a knights fee. chap. xviii . pag. . lin . . a little habergeon or coat of 〈◊〉 ▪ in latin halbergellum , a diminutive from the saxon halsberg , armour for the neck and breast . it is written also haubergellum and hambergellum . they mistake themselves , who translate it a halbert , in french halebarde , anoffensive weapon , for a coat of mail , which is armour of defence , in french haubert or hauberk ; whence fée de hauberk , which we have already explained somewhere before . lin. . a capelet of iron . ] a little iron or steel cap instead of a head-piece or helmet , which the better sort wore . for by comparing this with the two fore-going sections , we find they were to have a difference of arms according to their different quality and estate . lin. . a wambais . ] wambasium or wambasia , so called , i suppose , because it reached over the belly or womb , was a jacket or coat of defence , used in stead of the coat of mail , perhaps like unto our buff-coats , though probably not of leather only , but of any other material , as the wearer should think fit . pag. . lin . . timber for the building of ships . ] in latin here , mairemia ; written also meremia and meremium and maremium and muremium , from the french meresme , timber to build with . lin. . stercutius . ] saturn so called , as being the first inventer of dunging land. lin. . vnder the title of free-men . ] here the author himself hath in the latin added a marginal note , which i thought fit to remove to this place . he saith , that among the ancient germans the alway free , the middlemost free , and the lowermost free were , as it were , the classes and several ranks of the lesser nobles , i. e. of their gentry . for the title of nobless ( as also in our vulgar language ) was given only to princes and great men. and for this he quotes munster . cosmog . lib. . chap. xix . pag. . l. . in the borders of the carnutes . ] a people of france , whose countrey is called chartrain , and their chief city chartres , about eighteen leagues from paris eastward . that town eight miles off , called dreux ( in latin drocum ) was so named from the druids , who dwelt there at first , and likely enough afterward often resorted thither . p. . l. . of the three estates , the king , the lords , and the commons . ] there are indeed three orders or estates acknowledged by true divines and sound lawyers in the english government ; to wit , the lords spiritual , the lords temporal , and the commons of england . but the fundamental mistake of our learned author is , that he hath joyned those two sorts of lords ( whose very character shews them to be of a distinct species , though as to the publick welfare and the kings service they ought to be of one and the same interest ) into one estate , and to make up the third estate , thought himself obliged to bring in the king himself for one , who is lord paramount over all the three ; and by this means ipsam majestatem in ordinem redigere . i call this a fundamental mistake , as a most probable ground of rebellion ( as it was in the barons wars , and in our late civil broils ) inasmuch as if the king make one of the three estates , as they fancy he doth , and hath ( as they do from thence conclude he hath no more ) but a co-ordinate power with both or either of the other two estates ; that then it is lawful for both or either of those estates , in case of publick grievances to quarrel the king ( their co-ordinate ) if he will not give way to their redress ; that is , if he will not consent to do what they would have him to do ; and upon his refusal of so doing , to raise war against him , to sequester and murder his loyal adherents , to destroy his royal person ; and finally , if he escape the hazards of battel , when they get him into their hands , to bring him to account for a pretended male administration , and the violation of a trust , which god and not the people put into his hands ; and having gone so far , that they may , if possible , secure themselves , to put the monarch to death , and to extirpate monarchy it self . this was the ground and method of our late republican policy and practice . wherein yet they did not foresee what examples they set against themselves , supposing this doctrine of the three estates in their sense to be true , and that king , lords and commons had an equality of trust and parity of power , that the same outrage , which the rump-commoners acted against the king , to the destroying of him , and against the lords , to the outing of them , and voting them useless and dangerous ( as to their share of government ) might one time or other be more plausibly promoted , and more effectually put in execution by one or both of the other two estates , with the help and assistance of great numbers of the commoners ( as there ever will be in such national divisions ) against themselves and all men whatever of such pernicious and destructive principles . no. this false doctrine , i hope , will never obtain among us ; and our english government is so well constituted , that our lords spiritual and temporal and our worthy commoners , will find it the interest of themselves and their posterities , that they will ever have that duty and deference to our soveraign , as may secure him and us , and discourage the designs , and defeat the attempts of all such as wish ill to his honour and safety , or to the publick peace . besides , is it rational to imagine , that the king , whose absolute right by law it is , to convene the estates , when and where he thinks fit , to call and dissolve parliaments , as he pleases : in a word , that he , in whose name all justice is administred , in whose hands the militia is , and by whose authority alone the subjects can take up arms , should stand only in a co-ordination of power with any other persons whatsoever or however assembled or associated within his dominions ? this flaw i could not but take notice of in our great author , and that only with an intention to undeceive the unwary reader , and not to reflect upon his memory , who though he kept along a great while with the long parliament , yet never appeared in action for them , that ever i heard , much less used or owned that virulence and violence , which many others of that ill body of men judged necessary for their proceedings . chap. xx. pag. . lin . . alderman of england . ] the word alderman , in saxon , ealdorman , hath various acceptions , so as to signifie all sorts almost of governours and magistrates . so matth. . . the princes of the gentiles , in the saxon translation are called ealdormen ; and holofernes , i remember , the general of the assyrian army , is in an old english translation called the alderman of the army . so aethelstan ( whose younger son this ailwin was ) being duke or captain general of the east-saxons is in this book of ramsey styled alderman . the most proper importance of the word bears up with the latin senator , i. e. parliament-man ; as the laws of s. edward make out . in like manner , say they , heretofore among the britons , in the times of the romans , in this kingdom of britanny they were called senators , who afterwards in the times of the saxons were called aldermen ; not so much in respect of their age , as by reason of their wisdom and dignity , in that some of them were but young men , yet were skilled in the law , and beside that , were experienced persons . now that alderman of england , as ailwin here was , had to do in affairs of justice , appears by the foresaid book of ramsey , where it is said , that ailwin the alderman and aedric the kings provost sate judges in a certain court. the alderman of the county our author makes to be the same as the earl or lord of the county , and spelman saith , it is hard to distinguish , but at length placeth him in the middle betwixt the count and viscount . he and the bishop kept court together , the one for temporals , the other for spirituals . the title goes lower still , to denote a mayor or bailiff of a corporation , a bailiff of a hundred , &c. lin. . healf-koning . ] it was an oversight or slip of memory in our author , to say , that ailwin was so called ; when the book of ramsey tells us , it was his father aethelstan , who was of that great power and diligence , that all the business of the kingdom went through his hands , and was managed as he pleased , that had that nick name given him therefore . lin. . the graves . ] our author makes them subordinate to the aldermen of counties : but in the laws of the confessor they appear to be much what the same . there we read , and as they are now called greves , who are put in places of rule over others , so they were anciently among the english called ealdermen . indeed , the word greve or reev ( for it is all one ) is of as various use , as that other of alderman is . in saxon it is gerefa , from gerefen and reafen , to take or carry away , to exact or gather . whence this officer ( graphio or gravius from the saxon ) is in other latin called exactor regius ; and by reason that the sheriff gathered the kings fines and other duties , and returned them to the exchequer , he was called the shire-greve or shire-reev , that is , the gatherer of the county . but the truth is , that greve or reev came at last in general to signifie any ruler or governour set over any place almost whatever ; as the same word grave doth among the dutch. so a shire-greve , or hihgerefa , the high sheriff of a county ; a port-greve , the governour of a city or port. so the lord mayor of london was called formerly . tun-greve , the bailiff of a town or mannor . sometime greve is taken for a count or earl , as alderman is . chap. xxi . pag. . lin . . for toll and gabell . ] in the latin pro theolonio & gablo . now telonium , from the greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , properly signifies the place where the officers of the customs receive the kings duties ; but is used also for a duty paid for the maintenance of bridges and river-banks . so hotoman . but in our law it is taken for the toll of a market or fair. and gablum or gabellum , a gabell , from the saxon gafol or gafel , signifies any impost upon goods ; as that in france , upon salt , &c. also tribute , custom , any kind of tax or payment , &c. lin. . through the streets of coventry . ] there is a famous tradition among the people of that town concerning this matter , that the lady being to ride naked , only covered all over with her hair , had given order for the more decent performance of her procession , that all the inhabitants should that day keep their shops and doors and windows shut . but that two men tempted by their curiosity to do what fools are wont to do , had some such penalty , i know not what it was , inflicted upon them , as actaeon had for the like offence . and they now stand in some publick place cut out of wood or stone , to be shewn to any stranger that comes thither , like the sign of the two logger-heads , with the same motto belike , nous sommes trois . pag. . lin . . brought in my court a certain toper . ] in the latin , attulit in curiâ meâ quandam toper . i know what the adverb toper signifies among the ancient latines ; but what the word means here , i confess , i am in the dark . it doth certainly stand for some thing ( i was thinking a taper ) which he brought with him into court , and sware upon it , as he should have done upon the holy gospels . i cannot imagine , that by quandam toper , should be intended some woman or girl , whose name was toper , whom he brought along with him , and in defiance to the court , laying his hand upon her , took his oath as formally , as if he had done it upon the holy evangelists . reader , one thing i forgot to acquaint thee with in the preface , that , whereas the author himself had divided each book into several sections , which were very unequal and incommodious , i thought it much more convenient for thy ease and profit , to distribute them into chapters ; together with the argument or contents of each chapter at the beginning ; and withal , that no one may complain , that i have injured the author , by altering his method , i have left his sections also marked with a numeral note , , , &c. on the side of the inner or outer margin . finis . errata . in the translator's preface , p. . l. . r. ( and hath that of crabbed in it beside ) and as to the method is so intricate . pag. . l. . r. and strifes : p. . l. . r. pieces : p. . l. . r. borderers : p. . l. . for facts , r. toils : p. . l. . r. and money : p. . l. , r. lazzes : p. . l. . r. and breeding : p. . l. . r. peccatum : l. . r. or his eyes : p. . l. . r. quid : p. . l. . r. sorry old verse : p. . l. . r. too truly : p. . l. . r. warden : p. . l. . r. vulgar : l. . r. bestowing her : p. . l. . r. misdemeanour : p. . l. . r. add : p. . l. . r. seasonably : p. . l. . r. glocester . whom : p. . l. . r. strict : p. . l. . r. that in the : p. . l. . r. what. of him : p. . l. . r. him : p. . l. . r. cattle : p. . l. . r. turned : p. . l. . r. retired : p. . l. . r. neptune , as : p. . l. . r. unknown : p. . l. . r. inlagh : p. . l. . r. three things : p. . l. . r. found : p. . l. . r. arrested : p. . l. . r. quilleted . finis . england's epinomis . by john selden , esquire . london , printed for thomas basset at the george in fleetstreet , and richard chiswell at the rose and crown in s. paul's church-yard . mdclxxxiii . to the reader . this appendix or addition to what had been formerly collected by others , of our ancient constitutions , needs no farther recommendation , than the great name and learning of the author : lt was an essay of his younger years , and one of the fruits of his first and earliest inquiries . the reader will here meet with the true original ( as well under the roman , as the saxon and norman governments ) of several of our laws which are now in force , and the mistakes in polydore and others , discovered : the famous constitutions of clarendon ( so much opposed by becket ) faithfully recited , and purged from the errors which had crept into those copies formerly published : an account of the magna charta of king john , and the differences between it and that granted by his son h. . which we have in the fore-front of our printed statutes : a correction of our printed charta de foresta ; with other curious and judicious remarks upon these subjects , not heretofore extant ; which it is not doubted will for their own sake , as well as their authors , find a welcome reception from all knowing persons , especially from the learned professors of our english laws . the contents . chap. i. from the first supposed inhabitants and britains , until julius caesar , page . chap. ii. out of roman histories from julius caesar , to the period of rome's empire in this land , p. chap. iii. the saxons customs and laws ( except what is in lambard's archaeonomy ) during their government , until the normans , p. chap. iv. william the first : but none of that which under title of his laws , is in lambard , p. chap. v. what was received under william le rous , p. chap. iv. henry beauclerc restored , and invented common liberties , p. chap. vii . stephen of blois , p. chap. viii . henry fitz-l'empres , and his clarendon constitutions restored to themselves , and purged from the faults wherewith they have been published , p. assisae henrici regis factae apud clarendon & renovatae apud northamtune , p. chap. ix . richard ceur de lion , p. forma procedendi in placitis coronae regis , ibid. capitula placitorum coronae regis , ibid. capitula placitorum coronae d. regis , p. haec est assisa d. regis , & haec sunt praecepta de forestis suis in anglia facta per assensum & concilium archiepisc. episc. & abbat . comit. & bar. & militum totius regni , p. chap. x. king john and his grand charter , p. consuetudines scaccarii super debitis domini regis inquirendis , ibid. england's epinomis . chap. i. from the first supposed inhabitants and britains until julius caesar. if all published authority were a legitimate brother to truth 's certainty , then could i affirm , that their common father , old time , once saw a samothean race in this isle of britany . the italian-bred - chaldee berosus mentions one samothes , brother to gomer and tubal , of japhet's line , to be author of the celtes , which inhabited ( with other parts of europe ) that of gaule , which we now call la france : and his commentator annius de viterbo thus addeth , samothes fuit frater gomeri atque tubulis ex japete patre , à quo primùm britones , inde galli , samothei dicti fuerunt : & praecipuè philosophi & theologi sectutores ejus . these samotheans , by the testimony of aristotle and secion , divini atque humani juris peritissimi , & ob id religioni deditissimi , & proptereà samothei ( rather semnothei ) appellati , under the providence of these and their race was the law-government of the state , until that trojan celebrated branch , brute , entred the isle : who composed a book intituled leges britonum , collected out of the trojan laws . but to ruminate a little upon that saturnian age , and omit all shadow-fights touching controverted brute ( his supposed existence and fortunes ) it may be not without good reason doubted , whether any such laws of troy were , out of which others might be extracted . nor will they peradventure upon examination ( excepted only some customs of religious rites ) appear more certain in particular , or more true in general , than those of aristophanes his nephelococcygia . times so near the golden age ( when as nec signare quidem , aut partiri limite campum — nec cuiquam ( as seneca hath it ) aut animus aut injuria aut causa ) have left few notes of expresly binding laws , the main government consisting in the arbitrary disposition of those , in whom being chosen as princes for their eminency in justice , and consequently in all other vertues ( as deioces was of the medes ) it was rather an office , th●n a title of dignity , to undergo the style of monarch . and although it be reported in plato , that talus ( 'twixt whom and rhadamanth , the cretique justice was by minos , jupiters own son , then king of crete , divided ) thrice every year did make his circuit , for maintenance of such laws , as were established , and in brazen tables registred ; one of which ( somewhat to particularize ) was an edict against drunkenness in merry meetings ; so that constitutions in written tables may thus derive their pedigree from the most ancient remembrance of grecian discoveries ( ceres and her thesmophoria , with all such like omitted ) yet upon that common epithet of agamemnon in homer , which saluteth him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. shepherd of the people , where the phrase of jove's free gift to princes and judges of — 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . is very frequent , the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , lex , being long since observed not only to be not found in any of his works , but also to have been of later birth than his age permitted , ( unless the contingency , which 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , coming from the same theme , both by him and hesiod remembred , hath with it , perswade the contrary , and upon the ordinary phrases in virgil of jura vocatis dare populis , and such like , applied to trojan princes ) we may with probability enough conjecture that their laws , being , as the platonists term it , secundae veneris , were alwayes closely folded , rather within the treasury of his breast , which was only therefore greater than other , because he seemed best of them all , than published in enduring tables , to be observed as dumb magistrates ; et quidem initio civitatis ( saith pompinus ) populus sine certâ lege , sine certo jure agere instituit , omniaque manu regis gubernabantur . but from this d●gression into the way again . one of this succession dunvallo molmutius , instituted ( as they write ) ut aratra , templa viaeque ad civitates ducentes immunitate confugii gauderent . verum quia succedente tempore de viis ( cum non essent certis limitibus distinctae ) orta esset dissensio , belinus rex filius praedicti molmutii , ad subducendum omne ambiguum , quatuor regales vias , omni privilegio munitas , per insulam sterni fecit : fossam scilicet , watling streete , erming-streete & ikenild-streete ; which rather ( by camden's judgement ) were the romans works , as out of tacitus , beda , and other testimony he collecteth . hic leges ( meaning dunvallo ) saith jeoffrey of monmouth ) quae molmutinae dicebantur , inter britones statuit , quae usque ad hoc tempus inter anglos celebrantur . statuit siquidem inter caetera , quae multo post tempore beatus * gildas scripsit , ut templa deorum & civitates talem dignitatem haberent , ut quicunque fugitivus sive reus , ad ea confugeret , veniam coram inimico suo haberet . statuit etiam ut viae , quae ad praedicta templa & civitates ducebant , necnon & aratra colonorum , eadem lege confirmarentur . of the gynaecocracy of martia , wife to king guinthelin , a woman very learned , thus speaks the same author ; inter multa & inaudita , quae proprio ingenio invenerat , invenit legem , quam britones martianam vocaverunt . hanc etiam rex aluredus inter caeteras transtulit , quam saxonicâ linguâ marchenlage vocavit ; which name by our great english antiquary , is rather deduced from the mercii , whose limits ( meaepc in saxon signifying a limit ) adjoyned in some part to all the other kingdoms of the germans here established ; and they thence so denominated . i could wish for a sight of jupiter's diphtere , or an oracle from apollo , that so , resolution might be had touching the certainty of these reports , whether fabulous , or sealed with the stamp of a true history . the main authors are that chaldee priest and the arthurian jeoffrey ; both exceedingly suspected , but especially the first , by the penetrating judgements of most learned men . but admitting them , as your mercurial spirit shall move you , you have a fair passage from these mythick reports , selected out of bardish hymns , unto most allowed truths of authentick historians . chap. ii. out of roman histories from julius caesar to the period of rome's empire in this land. jvlivs caesar ( who first of the romans set foot in this little world divided from the greater ) discovered among the gauls their order of government , and form of deciding controversies by law : which was wholly the office of the druides , then being ( as it seems ) the togata militiae of the state. their discipline , he affirms , was first found in this isle , and hence transferred to the old gauls : they hither always sent their youth , as to a seminary of that learning . i. illi rebus divinis ( caesar's words ) intersunt , sacrificia publica ac privata procurant , religiones interpretantur . ii. de omnibus controversiis publicis privatisque constituunt , ( the pontifical colledge of old rome , after the twelve tables received , did as much ) & si quod est admissum facinus , si caedes facta , si de haereditate , de finibus controversia est , iidem decernunt , praemia poenasque constituunt . iii. si quis privatus , aut populus , eorum decreto non stetit , sacrificiis interdicunt : haec poena ( yet it was but like the minor excommunicatio used in the christian church ) apud eos est gravissima . iv. quibus ita est interdictum , ii numero impiorum ac sceleratorum habentur ; ab iis omnes decedunt , aditum eorum sermonemque defugiunt ( these consequents make it as the greater excommunication ) ne quid ex contagione incommodi accipiant : neque iis petentibus jus redditur ( the self same in proportion remains yet with us in practice ) neque honos ullus communicatur . v. druidibus praeest unus , qui summam inter eos habet authoritatem . vi. hoc mortuo , si quis ex reliquis excellit dignitate , succedit ; ac si sint pares plures , suffragio adlegitur . vii . druides à bello abesse consueverunt , neque tributa una cum reliquis p●ndunt ( our clergy in effect hath retained as much ) militiae vacationem omniumque rerum habent immunitatem . viii . such large priviledges occasioned increase of their scholars , qui magnum ( saith he ) numerum versuum ediscere dicuntur . itaque nonnulli annos vicenos in disciplinâ permanent , neque fas esse existimant ea literis mandare , cum in reliquis ferè rebus publicis privatisque rationibus , graecis literis utantur . hence some infer that the tongue of the old gauls was greek , but clearly that the druides wrote in it : i am not perswaded to either . graecae literae is not always latine for the greek tongue ; so might we say , that the syriack testament were perfect hebrew , because literis hebraicis exaratur . as for instruments of commerce written at marsile , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ( as strabo reporteth ) it proves only that a greek colony ( for it was from the phocians ) used greek . but caesar also speaks of tables found in the helvetians tents , graecis literis exaratas . we may interpret both for the character only , which perhaps even the graecians thence borrowed . of this place of the druides it is the censure of a great doctor , the learned hotoman , that graecis hath crept in through fault of transcribers ; humeris did in another place in the same caesar so thrust it self unto dextris , as lipsius makes apparent ; who is clear of opinion that the whole context of his commentaries hath suffered much alteration and spoil by julius caesar his interpolation ; nay some think they were never since the first copy his own . but to prove with a forcible argument , think you that greek was so familiar with the druides ? why then did caesar write in greek to cicero , to this end , that neither the carrier , being a gaulenor , nor other of the state , if they were intercepted , might understand them ? to whose hands in time of war should they have come sooner , than to the councils , where the druides were chief ? so much not amiss , because it touches the tongue of the lawyers , used in those times . to the former druidian orders and constitutions are added in pliny , strabo , marcellinus , lucan , tacitus , and others , divers rites of religion and philosophy , which taste much of pythagorean doctrine , worthy of observation , and applicable as well to this isle , as any part of gaul . for as much as not only the infancy of that sect had here its nurture , but also an identity of common-wealth , order , language and religion , between the old gauls , and our britains , is by learned camden with sufficient reasons of strong proof , in his excellent chorography of this country , declared . fit enough therefore is it to conjoyn also the municipals of the gauls , which by the same authority were scarce different from the british . ix . suos liberos nisi cum adoleverint , ut manus militiae sustinere possint , palàm ad se adire non patiuntur . x. viri quantas pecunias ab uxoribus dotis nomine acceperunt , tantas ex suis bonis , aestimatione factâ , cum dotibus communicant ; hujus omnis pecunia conjunctim ratio habetur , fructusque servantur ; uter eorum vitâ superaverit , ad eum pars utriusque cum fructibus superiorum temporum pervenit . xi . viri in uxores , sicuti in liberos , vitae necisque habent potestatem ; here john bodin blames justinian for confining this power only to the romans . xii . cum paterfamilias illustriore loco natus decessit , ejus propingui conveniunt , & de morte , si res in suspicionem venit , de uxoribus in servilem modum quaestionem habent ; & si compertum est , igni ( for a woman to kill her husband is now petit-treason ▪ and she suffers pains of death by fire ) atque omnibus tormentis extruciatas interficiunt . xiii . servi & clientes quos ab iis dilectos esse constabat , justis funeribus confectis , unà cremabantur . xiv . sancitum si quis quid de rep . à finitimis rumore aut famâ acceperit , uti ad magistratum deferat , neve cum quo alio communicet . xv. magistratus , quae visa sunt , occultant , quaeque esse ex usu judicaverint , multitudini produnt . xvi . de repub . nisi per concilium loqui non conceditur . xvii . plerique cum aut are alieno , aut magnitudine tributorum , aut injuriâ potentiorum premuntur , sese in servitutem dicant nobilibus : in hos eadem sunt jura , quae dominis in servos . xviii . armati , ita mos gentis erat , saith livy , in concilium venerunt . xix . in respect of quiet composition of seditious tumults among themselves , made by intercession of their weaker sex , a custome grew among them ( plutarch is my author ) that women also had prerogative in deliberative sessions , touching either peace-government or martial affairs , and sexum ( saith tacitus of the britains ) in imperiis non discernunt . but caesar is not without something , which expresly is attributed to our ancient britains . xx. vtuntur numero aereo aut annulis ( some read laminis ) ferreis , ad certum pondus examinatis . xxi . leporem & gallinam & anserem gustare fas non putant ; haec tamen alunt animi voluptatisque causâ . xxii . vxores habent deni ( no more disparagement be it to them , than the indistinct and open carnal congresse reported of the thuscans , the best part of the old italians , or that of the athenians before the cecropian alteration ) duodenique inter se communes , & maximè fratres cum fratribus , & parentes cum liberis ; sed si qui sunt ex his nati , eorum habentur liberi , à quibus primùm virgines quaeque ductae sunt . howsoever julius his imposed tributes did in some degree diminish their publick liberty ; yet that under him , octavian , tiberius , and caligula , they were , in respect of any state-innovation , attonomoi , i. e. using their own laws , is collected out of dio's roman history . he speaking of plautius ( lieutenant here to the emperour claudius ) his victorious success against togodunus and caractacus , affirms their ancient aristocracy , without subjection to strangers , as yet continuing : 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ( saith he ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . i. e. they were not free to live at pleasure of the multitude ( not free from superiour government ) but subject to divers kings , so that until that time continuing their plurality of narrow territoried princes , they were truly free from all foreign imposition of laws ; which is expresly affirmed in that of seneca the tragedian , speaking thus of claudius , in the person of octavia his daughter . cuique britanni terga dedere ducibus nostris ante ignoti jurisque sui . but in his time their times changed , a good part of the isle conquered , and into a presidial province reduced . colonia ( so speaks tacitus ) camalodanum ( which was cunobelinus's palace or town-royal , now malden in essex ) valida veteranorum m●nu deducitur , in agros captivos subsidium adversus rebelles , & imbuendis sociis ad officia legum ; the verulanian municipy , celebrated by our noble spenser , and remembred by tacitus , the chief seat of cassibellan , near s. albans in hartfordshire . the roman colonies at york , at chester , ( as by an inscription of an old coin camden testifieth ) at glocester ( proved out of an old stone in bath-walls by the north-gate there thus charged , dec . coloniae glev. vixit lxxxvi ) compared with claudius his former recited , are great testimonies of a great alteration . for although municipes ( as agellius hath it ) sunt cives romani ex municipiis , suo jure & legibus utentes , muneris tantùm cum pop. rom. honorarii participes , yet coloniarum alia , saith he , necessitudo est ex civitate quasi propagatae sunt , & jura institutaque omnia pop. rom. non sui arbitrii habent . both , as well municipies as colonies , had their decuriones , duumviros , aediles , equites , and such like orders , and offices different from all places where the romans as yet had not seated their empire . under some of the succeeding emperors , vespasian , titus and domitian , was julius agricola , father-in-law to tacitus , here roman lieutenant : through whose perswasion to civility , habitus ( writeth the same tacitus among the britains ) nostri honor , & frequens toga . the somewhat younger times also saw papinian , that oracle of the roman laws , discussing at york , as , out of forcatulus , camden hath noted . when commodus had the empire , then was britain's king lucius ( of kings the first christian ) who after the receipt of that holy token of regeneration , from eleutherius bishop of rome , made a second demand , which by the pope's returned answer you shall the better understand : petistis ( so was his rescript , and , juraque ab hâc terrâ , caetera terra petet , was ovid's prophecy ) à nobis leges romanas & caesaris , vobis transmitti , quibus in regno britanniae uti voluistis . leges romanas & caesaris enim nuper miseratione divinâ in regno britanniae , & fidem christi habetis penes vos in regno , utramque paginam : ex illis dei gratiâ , per concilium regni vestri sume legem , & per illam dei patientiâ vestrum reges britanniae regnum ; vicarius verò dei estis in regno . what the sequel hereof was , thus only appears : that after he had in lieu of the archflamens at london , york and caer-leon , constituted three archbishops , with twenty-eight bishops in other places , making large gifts of possessions to their churches , ecclesias ( matthew the monk of westminster speaks it ) cum suis coemeteriis ( if we may believe that then there were with us church-yards for burials ) ita constituit esse liberas , ut quicunque malefactor ad illa confugeret , illaesus ab omnibus remaneret , with which the british constitutions and customs have here their last limit . chap. iii. the saxon customes and laws ( except what is in lambard's archaeonomy ) during their government , until the normans . italy had at length so much to do in defence of her self , that she could hardly afford help to others . gothick incursions grew so violent and dangerous , the picts and scots were as troublesome to the britains , who desiring aid of the romans , were in their expectations frustrate : to provide therefore some other way ( vortigern being then king ) martial succour against the neighbour violence of the northern people of this island was requested , and obtained from germany . thence hither issued saxons , jutes ( some will have the old name vites ) and angles : which differed more in name , than nation , and are in good authors but synonymies of the same countrey-people . these in process of time , contrary than the britains first hoped , established to themselves in divers parts of that we now call england , several kingdomes , extruding vortigern's posterity , and their subjects , into the western parts , where to this day they remain . and how can we but conjecture that of particular customes of law-government in their own countrey , they made requisite use in this their part of the island ? what those were , until christianity made some abolition , may best be observed out of tacitus de moribus germanorum ; who relates divers of their customes , and rites religious . but at inquisition of their superstition we aim not ; their profane laws being chiefly proposed for collection . i. rex vel princeps ( saith tacitus , speaking of some of them , whose antique reliques seem yet to continue in our municipals ) prout aetas cuique , prout nobilitas , prout decus bellorum , prout facundia est , audiuntur authoritate suadendi magis quam jubendi potestate : si displicuit sententia , fremitu aspernantur ; sin placuit , frameas ( of necessity you must here remember our wapentakes ) concutiunt . honoratissimum assensûs genus est armis laudare . ii. licet apud concilium accusare quoque ; & discrimen capitis intendere . distinctio poenarum ex delicto , proditores & transfugas arboribus suspendunt , ignavos & imbelles & corpore ( lipsius will have it torpore , and shews great reason for it , in love towards his own countrey ) infames coeno ac palude , injecta insuper crate mergunt . diversitas supplicii illuc respicit , tanquam scelera ostendi oporteat dum puniuntur , flagitia abscondi . iii. levioribus delictis pro modo poenarune , equorum , pecorumque numero convicti multantur . pars mulctae regi vel civitati , pars ipsi qui vindicatur , vel propinquis ejus exolvitur . iv. eliguntur in iis conciliis & princeps , qui jura per pagos vicosque reddunt . centeni singulis ex plebe comites ( which observe to symbolize with our hundreds ) consilium simul & authoritas adsunt . v. nihil neque publicae neque privatae rei nisi armati agunt , sed arma sumere non ante cuiquam moris , quam civitas suffecturum probaverit . tum in ipso concilio vel principum aliquis , vel pater , vel propinquus , scuto frameäque juvenem ornant . haec apud illos toga , hic primus ( here have you resemblance of our knighting ) juventae honos : ante hoc domus pars videntur , mox reipublicae . vi. insignis nobilitas aut magna patrum merita , principis dignationem etiam adolescentulis assignant . note there the propagation of gentry through true honour deserving vertue , to whose memory is dedicated that worship , which is oft-times bestowed on unworthy posterity . vii . dotem non uxor marito , sed uxori maritus ( i might compare this to our most ancient and then common dower al huis d'esglise ) offert . viii . to their religious rites in marriage-knots he adjoyns the punishment of her which violates her chosen bed . accisis crinibus nudatam coram propinquis expellit domo maritus , ac per omnem vicum verbere agit . ix . publicatae pudicitiae ( understand it of unmarried wenches ) nulla venia , non formâ , non aetate , non opibus maritum invenerit . x. sororum filiis idem apud avunculum , qui apud patrem honor . xi . haeredes , successoresque sui cuique liberi , & nullum testamentum : si liberi non sunt , proximus gradus in possessione fratres , patrui , avunculi ; neither until h. . had we any lands devisable , except by special custome binding the common-law . xii . suscipere tam inimicitias seu patris seu propinqui ( our northern deadly-feud offers it self here to be thought on ) quam amicitias necesse est ; nec implacabiles durant . luitur enim etiam homicidium certo armentorum ac pecorum numero ( this interprets the were in the saxon laws of william lambard ) recipitque satisfactionem universa domus . xiii . suam quisque servus sedem , suos penateis regit . frumenti modum dominus aut pecoris aut vestis ut colono injungit ; & servus hactenus paret . divers others of their manners and customes hath the same author ; but not any , which except these recited , i think may be fitly styled law , or constituted order of that nation . but to be more particular , adam of breme will tell us out of einhard of the saxons ( which gave chief denomination to such germans as floated hither ) thus ; xiv . quatuor differentiis gens illa consistit , nobilium scilicet & liberorum , libertorumque atque servorum . xv. legibus firmatum ut nulla pars copulandis conjugiis propriae sortis terminos transferat ; sed nobilis nobilem ducat uxorem , & liber liberam , libertus conjungatur libertae , & servus ancillae . si vero quispiam horum sibi non congruentem , & genere praestantiorem duxerit uxorem , cum vitae suae damno componat . xvi . ejus gentis cum quâ bellandum fuit ( this is by tacitus in the same words repeated of the germans ) quoquo modo interceptum ; cum electo popularium suorum patriis quemque armis committunt , & victoria hujus vel illius pro praejudicio accipitur . xvii . unto the times before christianity among them was received , this is to be referred ; the first christian king ethelbert of kent , inter caetera ( as venerable bede reporteth ) bona , quae genti suae consulendo conferebat , etiam decreta illi judiciorum juxta exempla romanorum , cum consilio sapientum instituit . quae conscripta anglorum sermone , hactenus , saith he , habentur & observantur ab eâ . and very many constitutions yet extant , written in the saxon tongue , are attributed to ine , alfred , edward , athelstan , edmund , edgar , ethelred and canutus or knute , translated into latine , and published long since by william lambard , a learned gentleman , with the laws of edw. the confessor , so called , non quod ille statuerit , saith one , sed quod observaverit ; whereunto are joyned divers , with title of william the conqueror , which being so there already , according to several times in one volume for that only purpose compiled , they only shall here be inserted , which as yet lie dispersed in the old monuments of our historians . xviii . totius angliae ( of king alured so writeth ingulphus abbot of croyland ) pagos & provincias in comitatus primus omnium commutavit , comitatus in centurias , i. e. hundredas , & in decimas ( as if he imitated jethro moses father-in-law ) id est , tythingas , divisit , ut omnis indigena legalis in aliquâ centuriâ & decimâ existeret . et si quis suspectus de aliquo latrocinio , per suam centuriam vel decuriam , vel condemnatus , vel * invadiatus , poenam demeritam vel incurreret , vel vitaret . praefectos verò provinciarum ( qui antea vicedomini ) in duo officia divisit , i. e. in judices , quos nunc justiciarios vocamus , & in vicecomites , qui adhuc idem nomen retinent . xix . of king edgar , the monk of malmesbury writeth thus ; quia compatriotae in tabernis convenientes , jamque temulenti pro modo bibendi contenderent , ipse clavos argenteos vasis affigi jussit , & dum metam suam quisque cognosceret , non plus subserviente verecundiâ , vel ipse appeteret , vel alium appetere cogeret . constraint of such as were too indulgent to the desires of their sensual appetite by ingurgitation of brain-smoaking liquors , was by the greek zaleucus ( and so received among the locrians ) no less than capital . but which hath been always so far from this state , that until the third session of the present parliament , not so much as any pecuniary mulct endeavoured to refrain that temporary and altogether voluntary madness . xx. nulla ( saith ingulphus ) electio praelatorum erat merè libera & canonica , sed omnes dignitates , tam episcoporum quam abbatum , per annulum & baculum regis curia pro suâ complacentiâ conferebat . xxi . chirographa , until the confessor's time , fidelium praesentium subscriptionibus , cùm crucibus aureis , aliisque sacris signaculis firma fuerunt . xxii . conferebantur primò ( saith he , but i understand it of the infancy of the norman state ) multa praedia nudo verbo absque scripto , vel chartâ ; tantum cum domini gladio , vel galea , vel cornu , vel cratere , & plurima tenementa cum calcari , cum strigili , cum arcu , & nonnulla cum sagittâ . this somewhat savours of obertus orto's form of investiture in his feudals , or his of this , and differs much from our strict livery of seisin , which regularly ought to be made with part of and upon the land , by gift transferred . not unworthy ( in this place ) of observation is that charter of cedwalla king of sussex , ( as among old monuments of evidence belonging to the arch-bishop of canterbury i have seen ) in the year dclxxxvii . made to theodore then archbishop of certain lands , with this subscription ; ad cumulum autem confirmationis , ego cedwalla cespitem terrae praedictae super sanctum altare salvatoris posui , & propriâ manu , pro ignorantia literarum , signum sanctae crucis expressi , & subscripsi . the like hath camden out of a patent made by withered king of kent , to a nunnery in the isle of thanet . but to that form of conveyance which ingulphus speaks of , is thus added ; sed haec initio regni sui : posterioribus annis immutatus est iste modus . the antiquity of deeming the queen , both as covert , and also a sole person , with such respective admittance , as is commonly agreed upon , and the custome of land-forfeiture upon felony committed , are both referred to these times . the first proved by that learned chief justice sir edw. coke , out of a gift made by aethelswith , wife to king burghred , to one cuthwulfe her servant dccclxviii . the other from an example by him published of one ethesig , whose lands were forfeited to king ethelred , for feloniously stealing one ethelwine's swine . chap. iv. william the first : but none of that which under title of his laws , is in lambard . no sooner was the norman william circled with the crown of his victory , but i. decrevit subjectum sibi populum ( my author is gervase of tilbury ) juri scripto legibusque subjicere . propositis igitur legibus anglicanis secundùm tripartitam earundem distinctionem , hoc est merchenlage ( this govern'd the shires of glocester , worcester , hereford , warwick , oxford , chester , shropshire , and stafford ) westsaxenlage ( hereby were ordered kent , sussex , surry , barkshire , hamshire , wiltshire , somerset , dorset and devonshire ) and danelage ( by it york , darby , nottingham , leicester , lincoln , northampton , bedford , buckingham , hartford , essex , middlesex , norfolk , suffolk , cambridge , and huntingdon ) quasdam reprobavit , quasdam autem approbans illis transmarinas neustriae ( that is normandy corruptly for westriae , the opposite to that other part of the division of france , eustrasia ) leges , quae ad regni pacem tuendam efficacissimè videbantur : which was not performed without earnest and most humble request of the english. for , as honouring with respect the northern stock , whence his blood was derived , the danelage he preferred , as worthier and better for government than the mere english. but seeming at first inexorable , the perswasive remembrance of his soul , which bequeathed him the kingdom , and whose laws they desired , being , as the best supposed motive , inserted in the petitions of the conquered , he granted so much , that from that time veneratae per universam angliam , corroboratae & observatae sunt , prae caeteris patriae legibus , leges edwardi regis , quae priùs inventae ( it is roger of hoveden's report ) & constitutae erant in tempore edgari avi sui . ii. fecit describi omnem angliam , ( the substance hereof is in most of the monkish histories , but florence of worcester is the author i now use ) quantum terrae quisque baronum suorum possidebat , quot feudatos milites , quot carucas , quot villanos , quot animalia ; imò , quantum vivae pecuniae quisque possidebat in omni regno suo , à maximo usque ad minimum , & quantum redditûs quaeque possessio reddere poterat . this inquisition was returned into his exchequer , and is a book at this day there remaining , pro sua generalitate omnia tenementa totius terrae integrè continente : it is called domesday , i. e. the day of judgment , as the abbot of crowland , and gervase of tilbury have left written , ob hoc ( saith gervase ) nos eundem librum judiciarium nominamus , non quòd in eo de propositis aliquibus dubiis feratur sententia , sed quod à praedicto judicio non liceat ullâ ratione discedere . a description of it in an old english historical poet , is thus clad in rhythmes . the k. william vor to wite the worth of his londe let enqueri streitliche thoru al engelonde , hou moni plou lond , and hou moni hiden also were in euerich sire , and wat hii were wurth yereto : and the rents of each toun , and of the waters echone , that wurth , and of woods eke , that there ne bileued none , but that he wist wat hii were wurth of al engelonde , and wite al clene that wurth thereof ich understond and let it write clene inou , and that scrit dude iwis in the cresorie at westminster there it yut is . so that vre kings suth , when hii ransome toke and redy wat folc might giue , hii fond there in yor boke . nor a much unlike description in later times under hen. . ( as a preparatory to the levying of that intolerable demanded subsidy of dcccl ) was either finished or attempted : as by a warrant from the commissioners directed to a constable of a hundred , with charge of information , reported by j. stow , is more largely declared . iii. of church-livings and ecclesiastical fees matthew paris hath thus recorded ; episcopatus & abbatias omnes , quae baronias tenebant , & eatenus ab omni seculari libertatem habuerant , sub servitute statuit militare , in rotulans singulos episcopatus & abbatias , pro voluntate suâ , quot milites sibi & successoribus suis , hostilitatis tempore , voluit à singulis exhiberi . iv. exclusis haereditate avita anglis , agros ( learned camden hath delivered it ) & praedia militibus suis assignavit , ità tamen ut dominium directum sibi reservaret , obsequiumque clientelari jure sibi & successorib●s devinciret : id est ut omnes in feodo , sive fide teneret , & nulli praeter regem essent veri domini , sed potius fiduciarii domini , & possessores . v. gervase of tilbury in a discourse of the trial of the purity of silver paid in ancient time into the exchequer by weight , affirmeth that by tradition it was received for truth , that in primitivo regni statu , post conquisitionem , no rents were paid to the crown in money : sed sola ( saith he ) victualia solvebantur , ex quibus in usus quotidianos domus regiae necessaria ministrabantur : and somewhat after , tot● igitur willielmi primi tempore perseveravit haec institutio usque ad tempora regis henrici filii ejus ( which was henry the first ) adeò ut viderim ego ipse ( he lived under henry the second ) quosdam , qui victualia , statutis temporibus , de fundis regiis , ad curiam deferebant . certum quoque habebant officiales domus regiae , à quibus comitatibus triticum , à quibus diversae species carnium , & equorum pabula debebantur . his verò solutis secundum constitutum modum cujusque rei , regii officiales computabant vicecomitibus , redigentes in summam denariorum , pro mensurâ videlicet tritici ad panem centum hominum , solidum unum , pro corpore bovis pascualis solidum unum , pro ariete vel ove iv. denarios , pro prebendâ xx. equorum similiter iv. denarios ; but through the grievous complaints of country husbandmen , oblatis vomeribus in signum deficientis agriculturae , respective calculation was made under henry beauclerc , and every particular tenants services reduced to a certainty of silver , de summa vero summarum quae ex omnibus fundis surgebat in unoquoque comitatu , constituerunt vicecomitem illius comitatus ad scaccarium teneri , addentes ut ad scalam solveret . more special form whereof the same author hath largely reported . vi. chirographa chartas vocabant , & chartarum firmitatem cum cereâ impressione per uniuscujusque speciale sigillum sub instillatione trium vel iv. astantium , conficere constituebant . vii . anglicum idioma tantum abhorrebant , quod leges terrae statutaque anglicorum regum gallicâ linguâ tractarentur ( pleadings until reformation in time of e. . remaining in the same tongue ) & pueris etiam in scholis principia literarum grammatica gallicè ac non anglicè traderentur . modus etiam scribendi anglicus omitteretur , & modus gallicus in chartis & in libris omnibus admitteretur : thus to be frenchified grew so common , and before all english titles so respectfully alone honoured , that vlstan prelate of worcester in the red king's time , was for his ignorance in that tongue chiefly deposed from his bishoprick . viii . cervum vel capreolum capienti oculi eruebantur . ix . the law of coverfeu ( the name yet remaineth ) that by ringing a bell at night , all lights and fire in every house should retire from our appearance , acknowledgeth him as first institutor . x. si aliquis quempiam ( it is in henry of huntingdon ) quâcunque de causâ peremisset , capitali subjacebat sententiae . xi . si aliquem ( i would read it aliquam , perswaded by what i find in bracton's treatise of rape ) vi oppressisset , genitalibus privabatur armis . xii . if we durst believe the italian polydore , here should succeed an institution of sheriffs , and trial by jury of xii . touching the last , camden and lambard out of the saxon laws of etheldred , have convinced him of an error too fairly flourished with braving terms . for the first , and both since them the right h. the l. coke . but what else he hath of any probability you thus receive . xiii . constituit ut quater quotannis in multos dies conventus celebrarentur eo loci quo ipse fieri juberet , quibus in conventibus judices sedibus discreti forum agerent , jusque populo dicerent . xiv . alios instituit judices , qui sine provocatione jurisdictionem ac judicia exercerent , à quibus , uti à sinu principis , cuncti litigatores eò confluentes jura peterent , & ad eos suas controversias referrent . xv. praefectos alios constituit , qui maleficia vindicanda curarent . hos justiciarios pacis nuncupavit . yet i cannot so soon think that name to be literally so ancient under his favour , with whom too curious in a strange state , the kind laws of religious hospitality may without injustice dispense . chap. v. what was received under william le rous. vain it were to expect any good constitutions of william the second , omnis legum siluit justitia , causisque ( saith florence of worcester ) sub justitio positis ; sola in principibus imperabat pecunia . i. polydore attributeth to him the original of that custome , whereby his successors claim profits or first-fruits of vacant bishopricks and monasteries of the patronage of the crown . indeed it is true and apparent , that he had a special gift of delaying new elections for prorogation of his gains . and at his death were in his hands the temporalties of canterbury , winchester and salisbury , and of abbies that number quadrupled . ii. publico ( writeth he ) edicto vetuit unumquemque sine commeatu suo ex angliâ egredi . that archbishop anselme was enjoyned under no small pain , that he should not pass the seas , to visit pope vrban under this prince , is true and plain enough ; but for any such general edict , i know no better authority , his being in this , as in other things , suspicious : as yet my belief is , that the constitution of non aler ouster le mere , is of some later birth . iii. venationes quas rex primo ( the words are malmesburies , but read primus ) adeò prohibuit , ut capitale esset supplicium prendisse cervum . chap. vi. henry beauclerc restored and invented common liberties . reformation was needful by the succeeding beauclerc , of the common injustice practised throughout the kingdom , especially by a delegation of exacting authority made to one ranulph , afterwards bishop of durham , by le rous : and was thus endeavoured . immediately after his coronation charters of state-amendment were by publick authority sent into every county with particular customs expressed , allowed , abrogated or altered in them . that which was directed to hugh of bockland , sheriff of hereford , reported by matthew paris , after church-liberty confirmed , ita quod nec eam vendam , nec ad firmam ponam , nec mortuo archiepiscopo , vel episcopo , vel abbate , aliquid accipiam de domino ecclesiae , vel de hominibus , donec successor in eam ingrediatur , thus provides for the subject ; omnes malas consuetudines , quibus regnum angliae injuste opprimebatur , inde aufero : quas malas consuetudines in parte hic pono . i. si quis baronum meorum , comitum , vel aliorum qui de me tenent , mortuus fuerit , haeres suus non redimet terram suam sicut facere consueverat tempore patris mei , sed justâ & legitimâ relevatione relevabit eam . ii. homines baronum meorum legitimâ & justa relevatione relevabunt terras de dominis suis. iii. si quis baronum , vel aliorum hominum meorum , filiam suam tradere voluerit , sive sororem , sive neptem , sive cognatam , mecum inde loquatur ; sed neque ego aliquid de suo pro hac licentia accipiam , neque desendam quin eam det , excepto si eam dare voluerit inimico meo . iv. si mortuo barone vel alio homine meo filia haeres remanserit , dabo illam cum consilio baronum meorum cum terra suâ . v. si mortuo marito uxor ejus remanserit , & sine liberis fuerit , dotem suam & maritagium habebit , dum corpus suum legitimè servabit . : & eam non dabo nisi per secundum velle suum , & terrae liberorum custos erit sive uxor , sive alius propinquior , qui justus esse debet . vi. praecipio ut homines mei similiter se contineant erga filios & filias & uxores hominum suorum . vii . monetagium commune quod capiebatur per civitates vel comitatus , quod non fuit tempore ed. r. hoc ne amodò fiat , omninò defendo . viii . si quis captus fuerit , sive monetarius sive alius , cum falsâ monetâ , justitia recta inde fiat . ix . si quis baronum vel hominum meorum infirmabitur , sicut ipse dabit , vel dare jusserit pecuniam suam , ita datam esse concedo ; quod si ipse , praeventus vel armis vel infirmitate , pecuniam suam nec dederit , nec dare disposuerit , uxor sua sive liberi , aut parentes , & legitimi homines sui pro animâ ejus eam dividant , sicut eis melius visum fuerit . somewhat later times admitted the disposition of intestates goods , and probate of testaments , to be in episcopal jurisdiction . john stratford in one of his provincial constitutions of church-liberty , and fairefax a common lawyer under richard the third , affirm that power in ecclesiastick courts to have been in ancient time ( for the civil law it self in express text refers it to the lay magistrate ) by act of parliament ordained . x. si quis baronum , vel hominum meorum , forisfecerit , non dabit vadium in misericordiâ pecuniae suae , sicut faciebat tempore patris vel fratris mei ( they were the two precedent williams ) sed secundum forisfacturae modum , nec ita emendabit sicut emendasset retro tempore patris mei vel fratris . xi . si perfidiae vel sceleris convictus fuerit , sicut culpa sic emendet . xii . forestas communi consilio baronum meorum in manu mea ita retinus , sicut pater meus eas habuit . xiii . militibus , qui per loricas terras suas defendunt ( i. e. which hold their lands per fee de hauberke , to be ready in a coat of mail for martial service ) terras dominicarum carucarum suarum quietas ab omnibus geldis & omni proprio dominio meo concedo , ut , sicut tam magno gravamine alleviati sunt , ita equis & armis benè se instruant , ut apti & parati sint ad servitium meum , & ad defensionem regni mei . xiv . lagam regis edwardi vobis reddo , cum illis emendationibus quibus pater meus eam emendavit ( you have them in lambard ) consilio baronum suorum . thus far out of that transcribed charter . xv. rapinas curialium , furta , stupra , edicto compescuit , deprehensis oculos cum testiculis evelli praecipiens . william of malmsbury is hereof author ; but florence of worcester , and roger of hoveden , that for theft his punishment was , as now by hanging , death ; but for maintenance of malmesbury's report , i remember a miracle reported out of a manuscript in fox his ecclesiastical history , of one edward of king's weston in bedfordshire , attainted in time of henry fitz l' empres , for stealing a pair of hedging gloves , and a whetstone , and having by execution lost his eyes and genitals , had through devout prayer at tho. becket's shrine in canterbury , restitution ( i fear the monk that wrote it , might have had a whetstone without stealing ) of whatsoever members and faculties were by that inflicted punishment , taken from him . xvi . contra trapezitas ( quos vulgò monetarios vocant ) praecipuam sui diligentiam exhibuit ; nullum falsarium quin pugnum perderet impune abire permittens , qui fuit intellectus falsitatis suae commercio fatuos irrisisse : this falsifying of money by hoveden , was loss of our eyes and genitals : gemiticensis and the monk which made the continuance to florence of worcester , agreeing to malmesbury in this , that the offenders lost their right hands ; but further adding that , which the first god of the gentiles was compelled to endure , deprivation of his external parts of humane propagation . xvii . statuit ut nullus obolus ( the author is roger of hoveden ) quos & rotundos esse jussit , aut etiam quadrans , si integer esset , respueretur . xviii . mercatorum falsam ulnam ( malmesbury speaks ) castigavit brachii sui mensurâ adhibitâ , omnibusque per angliam propositâ . xix . curialibus suis ubicunque villarum esset , quantum à rusticis gratis accipere , quantum & quoto pretio emere debuissent , edixit , transgressores vel gravi pecuniarum mulctâ , vel vitae dispendio afficiens . xx. much stir both at rome and in england was touching investiture of bishops and abbots by lay hands : anselme , arch-prelate of canterbury mainly opposing himself against it ; whose perswasion so at length wrought with the king , that it was permitted ut ab eo tempore in reliquum ( matthew of westminster after others reports it ) nunquam per donationem baculi pastoralis vel annuli quisquam de episcopatu vel abbatiâ , per regem , vel quamlibet laicam personam , investiretur in anglia ; retento tamen electionis & regalium privilegio ; notwithstanding this in the year m.c.vii . per annulum & baculum ( as matthew paris tells us ) was by the same henry one rodolph made arch-bishop of canterbury . xxi . he restored ( john stow now speaks to you ) to his subjects the use of lights in the night , which lights , and also fire , had been forbidden by his father to be used , after the ringing of a bell at eight of the clock at night . xxii . fecit omnes milites angliae crines suos ad justum modum abscindere , qui priùs longitudine capillorum ( out of flores historiarum ) cum foeminis certabant . xxiii . a tribute of s. of every hide was exacted for augmentation of a dowry for the kings daughter mawde ' , to be married to the emperour henry the fourth : whereupon , saith polydore , secuti sunt istud institutum quaerendarum dotum ad collationem filiarum , caeteri deinde reges , adeo posteritas suorum commodorum tenax semper fuit ; referring that known service of ayde à file marrier , to this as the first example thereof ; though the antiquity of that custom can reckon as many years as since romulus his first institution of patrons and clients ( whence feuds and courts-baron , as udalricus zasius conjectureth , by way of imitation , proceeded in following times ) and no less the whole title thereof . and the other à faire fitz chevaler , & de rançome , are in the old graund custumier of normandy . xxiv . imminent peril was then , lest french conspiracies should get violent possession of the dutchy of normandy ; to prevent it with a sinewy army , primùm omnium populo imponit ( take it upon polydore's credit ) grave tributum causâ novi belli gerendi , id quod apud posteriores reges in consuetudinem venit . of the norman line masculine he was the last ; and this the last , i make of his laws . chap. vii . stephen of blois . crashing of armour and pronouncing of laws , have such antipathy , that his injurious successor , stephen of blois will put us to the charge of small room . at his inauguration , by oath he confirmed divers generalities for liberties , from ancient time used , of the church , but so religiously , that , as one saith of him , he seemed to have therefore only sworn , that he might be forsworn . but of them one was especially thus : i. si quis episcopus vel abbas vel alia ecclesiastica persona , ante mortem suam rationabiliter sua distribuerit , vel distribuenda statuerit , firmum manere concedo : si vero morte praeoccupatus fuerit , pro salute animae ejus ecclesiae consilio ( see before in the ninth of henry beauclerc ) eadem fiat distributio . ii. castella per singulas provincias ( saith william of newborough ) studio partium crebro surrexerant ; erantque in angliâ quodammodo tot reges , vel potius tyranni , quot domini castellorum , habentes singuli percussuram proprii numismatis , & potestatem subditis regio more dicendi juris . iii. danegeldum ( which how it was first rated and imposed , you may find in the confessor's laws ) quod antecessores sui accipere solebant singulis annis , in aeternum condonabat . henry of huntingdon and roger of hoveden affirm it . iv. an ecclesiastical synod was held at london under theobald of canterbury , the king and noblemen being also present , totumque illud concilium novis appellationibus infrenduit . in angliâ namque appellationes in usu non erant , donec eas henr. wintoniensis episcopus , dum legatus esset ( which was about this time ) malo suo crudeliter intrusit . v. tempore regis stephani ( as i read in john of salisbury's polycraticon ) à regno jussae sunt leges romanae , quas in britanniam domus venerabilis patris theobaldi , britanniarum primatis asciverat ; ne quis libro etiam retineret edicto regio prohibitum est . what the roman laws ( if you understand the imperials ) had ever to do with this state as a rule for squaring our judgements , is not only by this relation made manifest , but by an express assertion of the high court of parliament ( which wrought wonders ) under richard of burdeaux ; whenas thomas of woodstock , duke of glocester , richard earl of arundel , thomas beauchamp earl of derby , and thomas earl of nottingham , appealed alexander nevill arch-bishop of york , robert de vere duke of ireland , michael de la poole earl of suffolke , with others , of seducing the kings facile humour to their own desires , the particulars whereof appear in the thirty eight articles comprehended in the parliament rolls of the eleventh of his reign ; advice being demanded touching the formality of the appeal both of common lawyers and civilians , they all agreed , — that it was insufficient in both laws ; but answer was given by the baronage , that they would adjudge it by parliamentary authority ; neither would they be directed by the civil law , pur ceque la royalme d' angleterre n'estoit devant ces heures , ny à l' entent de nostre dit seigneur roy , & seigneures du parliament unq ' ne serra rules ne governes per la ley civil : and by judgement of exile with effect they proceeded : but this is somewhat out of the lists . chap. viii . henry fitz-l'empres , and his clarendon constitutions restored to themselves , and purged from the faults wherewith they have been published . adoption and right of bloud gave , after stephen 's death , the crown to henry plantagenet fitz l'empres ; his first care tending wholly to the good of the state , was to have the numerous increase of castles and forts ( which in his predecessors time through multitude of province-tyrants , whom they nourished , were swollen to the number of m.c.xv. ) abated ; so was it by express command performed , and the laws of his grand-father beauclerc likewise confirmed . a recognition also was made at clarendon , praesidente joanne de oxoniâ , de mandato ipsius regis , praesentibus etiam archiepiscopis , episcopis , abbatibus , prioribus , comitibus , baronibus & proceribus regni , of divers customes and rites of government for decision of no small controversies between the king , guarded with stout maintainers of his crown , and the prelates , who in their ambitious aims laboured for exemption of their persons , habits and possessions , from secular jurisdiction . i. de advocatione & praesentatione ecclesiarum ; si controversia emerserit inter laicos , vel inter laicos & clericos , vel inter clericos , in curiâ d. r. tractetur & terminetur . ii. ecclesiae de feudo d. regis non possunt imperpetuum dari absque assensu & concessione ipsius . iii. clerici rectati & accusati de quâcunque re , summoniti à justitiâ regis , venient in curiam ipsius responsuri ibidem de hoc , unde videbitur curiae regis quod ibi sit respondendum , & in curiâ eccles. unde videbitur quod ibi sit respondendum , ita quod justitia regis mittet in curiam s. e. ad videndum quâ ratione ibi res tractabitur . iv. si clericus convictus vel confessus fuerit , non debet eum de caetero ecclesia tueri . v. archiepiscopis , episcopis & personis regni non licet exire regnum absque licentiâ d. regis : & si exierit ( here is the true root of the old restraint from passing the seas without licence ) si regi placuerit , assecurabunt eum quòd nec in eundo nec in redeundo , vel moram faciendo , perquirent malum sive damnum d. regi . vi. excommunicati non debent dare vadium ad remanentiam , nec praestare juramentum , sed tantum vadium & plegium standi judicio ecclesiae , ut absolvantur . vii . laici non debent accusari nisi per certos & legales accusatores & testes in praesentiâ archiepiscopi , vel episcopi ; ita quod archidiaconus non perdat jus suum nec quicquam quod inde habere debeat . viii . si tales fuerint qui culpantur quod non velit vel non audeat aliquis eos accusare , vicecomes requisitus ab eo faciat jurare xii . legales homines de vicineto , seu de villâ coram episcopo , quod inde veritatem secundum conscientiam suam manifestabunt . ix . nullus qui de rege tenet in capite nec aliquis dominicorum ministrorum , sub interdicto ( that is a censure ecclesiastical , whereby the administration of sacraments is prohibited in some particular place , or among some certain persons ) ponatur ; nisi prius dominus rex , si in terrâ fuerit , conveniatur , vel justitia ejus , si fuerit extra regnum : & rectum de ipso faciat , & ita ut quod pertinebit ad regiam curiam , ibidem terminetur , & de eo quod spectabit ad ecclesiasticam curiam , ad eandem mittatur , ut ibidem tractetur . x. de appellationibus , sicubi emerserint , ab archidiacono debent ad episcopum , & ab episcopo ad archiepiscopum , & si archiepiscopus defuerit in justitiâ exhibendâ , ad d. regem perveniendum est postremo , ut praecepto ipsius in curiâ archiepiscopi terminetur controversia : ita quod non debet ulterius procedere absque assensu d. regis . xi . si calumnia emerserit inter clericum & laicum , vel inter laicum & clericum , de ullo tenemento quod clericus velit ad eleemosynam trahere , laicus verò ad laicum feudum , recognitione xii . legalium hominum per capitalis justitiae regis considerationem terminabitur , utrum tenementum sit pertinens ad eleemosynam sive ad feudum laicum , coram ipsa justitia regis ; et si recognitum fuerit ad eleemosynam pertinere , placitum erit in curiâ ecclesiasticâ ; si vero ad laicum feudum , nisi ambo tenementum de eodem episcopo vel barone advocaverint , erit placitum in curiâ regiâ ; sed si uterque advocaverit de feudo illo eundem episcopum vel baronem , erit placitum in curiâ ipsius , ità quod propter factam recognitionem seisinam non amittat qui prius seisitus fuerat , donec per placitum disrationatum sit . xii . qui de civitate vel castello vel burgo vel dominico manerio d. regis fuerit , si ab archidiacono vel episcopo super aliquo delicto citatus fuerit , unde debeat eis respondere , & ad citationes eorum satisfacere noluerit , bene liceat eum sub interdicto ponere ; sed non debet excommunicari , priusquam capitalis justitia d. regis villae illius conveniatur , ut justiciet eum ad satisfactionem venire ; et si justitia r. inde defecerit , ipse erit in misericordiâ d. r. & exinde poterit episcopus eum accusatum ecclesiasticâ justitiâ coercere . xiii . archiepiscopi , episcopi , & universae personae regni qui de rege tenent in capite , & habent possessiones suas de d. rege , sicut baroniam , & inde respondent justiciis & ministris regis , & faciunt omnes rectitudines & consuetudines regias , sicut barones caeteri , debent interesse judiciis curiae d. regis cum baronibus suis , usque perveniatur ad diminutionem membrorum vel ad mortem . xiv . cum vacaverit archiepiscopatus vel episcopatus vel abbatia , vel prioratus de dominio regis , debet esse in manu ipsius , & inde percipiet omnes redditus & exitus , sicut dominicos ; et cum ventum fuerit ad consulendum ecclesiae , debet d. rex mandare potiores personas ecclesiae ; & in capellâ ipsius regis debet fieri electio , assensu d. regis , & consilio personarum regni quas ad hoc faciendum vocaverit , & ibidem faciet electus homagium & fidelitatem d. regi , sicut ligio domino , de vitâ suâ , & membris , & de honore suo terreno , salvo ordine suo , priusquam sit consecratus . xv. si quisquam de proceribus deforciaverit archiepiscopo , episcopo vel archidiacono , de se vel de suis justitiam exhibere , rex debet justitiare . xvi . si forte aliquis deforciaverit d. regi rectitudinem suam , archiepiscopus , episcopus , & archidiaconus debent eum justitiare , ut regi satisfaciat . xvii . catalla eorum qui sunt in regis forisfacto , non detineat ecclesia , vel coemeterium contra justitiam regis , quia ipsius regis sunt , sive in ecclesiis , sive extra fuerint inventa . xviii . placita de debitis quae fide interposita debentur , vel absque interpositione fidei , sint in curia regis . xix . filii rusticorum non debent ordinari absque assensu domini , de cujus terrâ nati dignoscuntur . different in particulars of no slight moment are the reported clarendon constitutions in the greater history of matthew paris , first published ( as i think ) by that reverend father matthew parker , arch-bishop of canterbury , whose archetype , as it was transcribed by a countrey vicar , and delivered to the printer's hands ( i have part of that transcript to witness it , in mine own hands ) is but equal in every iota to the published copy : but as they are here written i have seen them added , without discrepancy of a syllable , at the end of the life and death of st. thomas of canterbury , drawn in ancient hand , and out of a quaternity of former authors , herbert of doseham , william a monk of canterbury , john of salisbury and alan abbot of teukesbury , into a just volume collected : huic libello nostro ( saith the author , that you may know what work they make here ) inserere studuimus funestum illud & famosum decreti chirographum , consuetudines ( viz. ) illas regias apud clarendonam promulgatas , quas ideò hic interseruimus , ut legant secula post futura , & hinc cognoscant quàm justa , quàm perspicua fuerit gloriosi neomartyris thomae , primò exilii & pòst martyrii causa . what contention ( after confirmation by oath of the whole baronage ) grew hereupon 'twixt the king and that canonized arch-bishop , is in every chronologer of those times enough declared . but it cannot be ungratefully received , if both for respect to an old english endeavouring wit , and also for matter , form and phrase of relation , out of robert of glocester , be made this superaddition . no man ne might thenche the love that there was bitwene the k. h. and the gode man s. thomas ; the diuel had enui therto , and set bitwen them feu , alas , alas thulke stond , vor all to well it greu . uor there had ere ibe kings of luther dede as w. bastard , and his son w. the rede . that luther laws made inou , and held in al the lond the k. uold not beleue the lawes that he fond , ne that his elderne bulde , ne the godeman s. thomas thought that thing age right neuer law uas . ne sothnes and custom mid strength up ihold , and he wist that vre dere lourd in the gospel told that he himselfe was sothnes , and custum nought , theruore luther custumes he uould graent nought . ne the k. uould bileue that is elderne ad ihold , so that conteke sprung bituene them manifold . the k. drou to right law mani luther custume , s. thomas thom withsed , and granted some . the lawes that icholle now tell he granted vawe . zuf a yuman hath a sone to clergi idraw he ne sall without is lourdes icrouned nought be , uor yuman ne mai nought be made agen is lourds will free . in the eighteenth of clarendon customs is the substance of this particular ; wher 's rusticorum interpreted yumen in this poet , is mentioned : to both , as a synonymy , is homines used as well in the law-annals of later times , and in writs of ven. fac . xii tam milites quam alios liberos & legales homines de vicineto , &c. as in older constitutions before expressed . gemen is the common allowed saxon root , whence our now usual name of yeoman had his beginning : but my conceit with a painted imposture deceives me , if the ancient latin be not father of both , but in a dialect different . nor let it be a fault ad appios & coruncas redire , some taste in yeomen is of homines , but more of hemones ; which in ennius and festus , is not otherwise significant , than themen in english , altered only in character in gemen the saxon word . but to my law-rhythms again ; another thing he granted eke as ye mow nouise ; yuf a man of holi chirch hath eni lay fee ; parson , other what he be , he ssal do therevore kings service that there ualth , that is right ne be vorlore , in plaiding and in assise be and in judgement also . bote war man ssal be bilemed , other to deth ido . he granted eke yuf eni man the kings traitor were , and eni man is chateux to holi chirch bere that holi chirch ne solde nought the chateux there let that the k. there other is as is owne is ne wette . uor all that the felon hath the kings it is and eche man mai in holi church is owne take iwis . he granted eke that a chirche of the kings fe in none stede ene and ever ne ssold igiue be as to hous of religion , without the kings leve , and that he other the patron the gift first gave . s. thomas granted well these and other mo , and these other he withsede that did him well woe . i. yuf bituene twei leud men were eni striving , other bituene a leud and a clerc , for holi chirch thing , as vor vouson of chirch whether shold the chirch give , the k. wold that in his court the ple ssold be driue ; uor as much as a leud man that the o parti was chanliche was under the k. & under no bishop nas . what he styles lewedmen , is by our common phrase lay-men , leudes in the old teutonique and saxon ( as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in greek from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. a stone , referred , as pindar hath it , to that mythick instauration of hard mankind by deucalion and pyrrha ) is equivalent to the multitude or common people , in the present english. for yef a priest be foule , on whome we trust , no wonder is a leude man to rust . but then the ignorant are by it noted , rather than who are not clerks ; for the same jeoffrey in another place saith , this every leud uicar and parson can say . robert of glocester speaks again : ii. another was no bishop , ne clerc nathe mo , ne ssolde without kings leue out of this lond go . and than hii ssolde suere upe the boke ywis . that hii ne sold purchas no uvel the k. ne none of is . iii. the thrid was yuf eni man in mausing were ibrought , and suth come to amendment , ne age were nought , that he ne suore up the boc , ac borowes find solde to stand to that holy chirch there of him toky wold . iv. the verth was that no man that of the k. huld ought in cheife or in eni servise in mausing were ibrought , bote the wardeins of holy chirch that brought him thereto , the k. sede or is bailifes wat be ad misdo , and loked verst were thei to amendment it bring , and vote hii wolde by their leue do the mausing . v. the vist was , that bishoprikes and abbeis also that vacans were of prelas in the k. hand were ido , and that the k. sold all the land as is owne take , uort at last that him lust eni prelat there make . and than thulke prelat sould in is chapel ichose be . of is clarks which he wuld to such prelate bise . and than wan he were ichose in is chapel right there , homage he solde him do ar he confirmed were . vi. the sixt was yuf eni play to chapitle were idraw , and eni man made is appele , yuf me dude him unlaw , that to the bishop from ercedeken is appele sold make , and from bishop to arcebissop and suth none other take , and but the ercebissops court to right him wold bring , that he sold from him be cluthe bivore the king. and from the k. non other mo so that attan end plaining of holi chirch to the k. shold wend. and the k. amend solde the ercebissops dede , and be as in the popes stede , and s. thomas it withsede . vii . the seuenthe was that plaiding that of det were to yeld wel thoru truth iplight , and nought ihold nere althei thoru truth it were , that ple sold be ibrought bivore the k. and is bailies and to holy chirch nought . viii . the eighth was that in the lond citation none nere thoru bull of the pope of rome , and clene bileued were . ix . the nithe was that peters pence that me gadereth manion the pope nere nought on isend , ac the k. echone . x. the tethe was yuf eni clarke as felon were itake , and vor felon iproved and ne might it not forsake , that me sold him verst disordein and suth thoru there law , and thoru judgement of the land hong him other to draw . uor these and vor other mo the godeman s. thomas fleu verst out of englond and eke imartred was , uor he sei there uas bote o way , other he must stiffe be , other holy chirch was isent , that of right was so fre . absolution of the prelates oath , which among others confirmed what he soon made retractation of , was obtained from alexander the third , bishop of rome ; who gave an insolent repulse to the kings ambassadors , sent for his ratification of that which the baronage had thus concluded . the king herewith exceedingly provoked , made present dispatch of letters to every sheriff in the kingdom , thus pronouncing ; xix . praecipio tibi , quod si aliquis clericus , vel laicus in ballivâ tuâ , romanam curiam appellaverit , eum capias & firmiter teneas , donec voluntatem meam praecipiam ; & omnes redditus clericorum archiepis●opi , & possessiones seisias in manum meam , & omnium clericorum qui cum archiepiscopo sunt , patres , matres , fratres , sorores , nepotes , & neptes pones per salvos plegios , & catalla eorum , donec voluntatem meam inde praecipiam . et hoc breve tecum afferas cùm summonitus fueris . xx. si quis inventus fuerit ferens literas d. papae ( this is spoken of before in my poet ) vel mandatum , aut thomae archiepiscopi , continens interdictum christianitatis in angliâ , capiatur & retineatur , donec inde voluntatem meam praecipiam . but in the annals of roger of hoveden , dedo sicut de regis traditore & regni , sine dilatione justitia fiat . xxi . promulgation also , by way of prohibition , was made of most of the former diminutions of papal or episcopal authority : the clergy-men , that were beyond sea , under forfeiture of their livings , were charged , by summons in their places of due residence , to return . xxii . londoniensis & norwicensis episcopi summoneantur , & sint coram justitiariis regis ad rectum faciendum , quod contra statuta regni interdixerunt terram comitis hugonis , & in ipsum sententiam anathematis intulerunt . xxiii . denarii s. petri colligantur & custodiantur . xxiv . in the th of his reign at nottingham , celebravit ( saith hoveden ) magnum concilium de statutis regni sui , & coram rege filio suo , & coram archiepiscopis , episcopis , comitibus & baronibus regni sui communi omnium consilio divisit regnum suum in vi. partes , per quarum singulas tres justitiarios itinerantes constituit ; here was the infancy of that form of circuits by justices in eyre , whose names and described limits my author in a sexpartite division hath remembred . et postea ( you hear him again ) fecit d. rex omnes praedictos justiciarios jurare super sacrosancta evangelia , quod ipsi bonâ fide & sine malo ingenio , has subscriptas assisas custodirent , & inviolabiliter ab hominibus regni facerent custodiri ; the subscribed articles with this title thus he hath recorded : assisae henrici regis factae apud clarendon & renovatae apud northamtune . xxv . si quis rectatus fuerit coram justiciis d. regis de murdro , vel latrocinio , vel roberia , vel receptatione hominum tale facientium , vel de falsoneria , vel iniquâ combustione , per sacramentum xii . militum de hundredo , & si milites non adfuerint ( i here understand by milites no other than such as were fendatorii , or held of some superior by knight's service , thereby distinguished from milites solidarii or servientes , i. e. hired soldiers , and both from the name of dignity used in ceremonious chivalry far separated ) per sacramentum xii . liberorum & legalium hominum , & per sacramentum iv. hominum de unaquâque villa hundredi , eat ad judicium aquae ( i. e. to the watry ordeal , described with the fiery in lambard 's exposition of words before his saxon laws , and in the antiquities of the church of britany , published , as i suppose , by matthew parker archbishop of canterbury ) & si perierit , alterum pedem amittat ; and apud northamtvne additum est pro rigore justitiae , quod dexterum similiter pugnum cum pede amittat , & regnum abjuret & infra xl. dies à regno exulet ; et si ad aquam mundus fuerit , inveniat plegios , & remaneat in regno , nisi ●ectatus fuerit de murdro vel aliquâ turpi feloniâ per commune comitatus & legalium militum patriae : de quo , si praedicto modo rectatus fuerit , quamvis ad aquam mundus fuerit , nihilominus infra xl. dies à regno exeat , & catalla sua secum asportet , salvo jure dominorum suorum , & regnum abjuret in misericordia d. regis . xxvi . nulli liceat , neque in burgo , neque in villa , hospitari aliquem extraneum ultra unam noctem in domo sua , quem ad rectum habere noluerit , nisi hospitatus ille essonium rationabile habuerit , quod hospes domus monstret vicinis suis , & cum recesserit , coram vicinis recedat & per diem . xxvii . si quis seisitus fuerit de murdro , vel de latrocinio , vel roberia , vel falsoneria , & inde sit cognoscens , vel de aliqua alia felonia , quam fecerit , coram praeposito hundredi , vel burgi , & coram legalibus hominibus , id posteà coram justitiis negare non poterit . et si idem sine seisina coram eis aliquid hujusmodi recognoverit , hoc simul coram justitiis negare non poterit . xxviii . si quis obierit francus tenens , haeredes ipsius remaneant in tali seisina , qualem pater suus habuit die qua fuit vivus & mortuus , de feodo suo , & catalla sua habeant unde faciant divisam defuncti , & dominum suum posteà requirant , & ei faciant de relevio & aliis , quae eis facere debent de feodo suo . xxix . si haeres fuerit infra aetatem , dominus feodi recipiat homagium suum , & habeat in custodiâ illum quamdiu debuerit ; alii domini , si plures fuerint , homagium ejus recipiant , & ipse faciat eis quod facere debuerit . xxx . vxor defuncti habeat dotem suam , & partem de catallis ejus quae eam contingit , which by the law in those days was a third part , if the dead had left issue , but a moity , if he were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . xxxi . si dominus feodi negat haeredibus defuncti seisinam ejusdem jeodi quam exigunt , sustitiarii d. regis faciant inde fieri recognitionem per xii . legales homines , quatem seisinam defunctus inde habuit die qua ficit vivus & mortuus ; this is the very mortdancester ; et sicut recognitum fuerit , ita haeredibus ejus restituant ; & si quis contrà hoc fecerit & inde attaintus fuerit , remaneat in misericordiâ regis . xxxii . justitiae domini regis faciant fieri recognitionem de disseisinis factis super assisam , à tempore quo d. rex venit in angliam proximo post pacem factam inter ipsum & regem filium suum . xxxiii . justitiae capiant fidelitates d. regis infra claus. pasch. & ad ultimum infrà claus. pentecost . ab omnibus videlicet comitibus ; baronibus , militibus & liberè tenentibus , & etiam rusticis qui in regno manere voluerint ; & qui facere ●oluerit fidelitatem , tanquam inimicus d. regis capiatur . xxxiv . habent etiam justitiae praecipere quod omnes illi qui nondum fecerunt homagium & ligeantiam d. regi , quod ad diem , quem eis nominabunt , veniant & faciant regi homagium , & ligeantiam , sicut ligeo domino . xxxv . justitiae faciant omnes justitias & rectitudines spectantes ad d. regem , & ad coronam suam , per breve domini regis , vel illorum qui in loco ejus erunt , de feodo dimi●û milit . & infrà ( if the account of a knights fee be by the annual value , then confidently according to the quadruple proportion of the known relief , you may affirm it , by xx l. lands ; and so likewise by comparison with soccage payment upon the stat. of west . . for aid , a fair fitz chivalier , or a file marryer ; but by a calculation prefixed to the red book of the exchequer , dclxxx . acres make exactly the summe ) nisi tam grandis sit querela , quod non possit deduci sine d. rege , vel talis quam justitiae ei reponent pro dubitatione suâ , vel ad illos qui in loco ejus erunt ; intendant tamen pro posse suo ad commodum d. regis faciendum . xxxvi . faciant assisam de latronibus iniquis , & malefactoribus terrae quae assisa est , per concilium regis , filii sui , & hominum suorum ; per quos ituri sunt comitatus . xxxvii . justitiae provideant quod castella diruta prorsus diruantur , & diruenda benè prosternantur ; et nisi hoc fecerint , d. rex judicium curiae suae de eis habere voluerit , sicut de contemptoribus praecepti sui . xxxviii . justitiae inquirant de escaetis , de ecclesiis , de terris , de foeminis quae sunt de donatione d. regis . xxxix . ballivi d. regis respondeant ad scaccarium , tam de assiso redditu , quam de omnibus perquisitionibus suis , quas faciunt in balliviis suis , exceptis illis quae pertinent ad vicecomitatum . xl. justitiae inquirant de custodiis castellorum , & qui , & quantum , & ubi eas debeant , & postea mandent d. regi . xli . latro , ex quo capitur , vicecomiti tradatur ad custodiendum , & , si vicecomes absens fuerit , ducatur ad proximum castellanum , & ipse illum custodiat donec illum liberet vicecomiti . xlii . justitiae faciant quaerere per consuetudinem terrae , illos qui à regno recesserunt , & nisi redire voluerint infra terminum nominatum , & stare ad rectum in curiâ regis , postea ut lagentur , & nomina ut lagorum afferantur ad pascha , & ad fest. s. mich. ad scaccarium , & exinde mittantur d. regi . while thus the king made provident order for lay-business , hugo à petra leonis , the pope's legate in england , laboured for dila●ation of church ; to whom was granted by the king : xliii . quod de caetero clericus ( matthew paris his report ) non trahatur ante judicem secularem personaliter , pro aliquo crimine vel transgressione , nisi pro forestâ & laico feudo , unde regi vel alii d. seculari laicum debetur servitium . xliv . vt archiepiscopatus , episcopatus , vel abbatiae , non teneantur in manu regis ultra annum , nisi pro causâ evidente , vel necessitate urgente . xlv . vt interfectores clericorum convicti vel confessi , coram justiciario regni , praesente episcopo puniantur . xlvi . quod clerici duellum facere non cogantur . xlvii . statuit apud woodstock , quod quicunque forisfecerit ei de forestâ suâ , semel de venatione suâ , de ipso salvi plegii capiantur ; & si iterum forisfecerit , similitèr capiantur de ipso salvi plegii ; si autem tertiò idem forisfecerit , nulli plegii capiantur , sed proprium corpus forisfactoris : which concludes what of his laws common histories afford . chap. ix . richard ceur de lion. this henry's successor was the stout richard ceur de lion : himself in person attending the eastern wars . division by his commission was made for maintaining the laws and customes of the kingdom , of the whole government , 'twixt hugh of pusar , bishop of durham , and william bishop of ely , lord chancellor . the stream of all , howsoever there was an association of hugh bardulph and william briwere , was carried as the prelates pleased , until their ambitious insolency made a period to their too great authority . after his return justices in eyre were sent into every county , & secundùm subscriptorum formam capitulorum ( saith hoveden ) processerunt in justiciis exequendis . forma procedendi in placitis coronae regis . i. inprimis eligendi sunt iv. milites de toto comitatu ; qui per sacramentum suum eligant ii. legales milites de quolibet hundredo , vel wapentacco . et illi ii. eligant super sacramentum suum x. milites de singulis hundredis , vel wapentaccis● ; vel si milites defuerint , legales & liberos homines , ità quòd illi xii . insimul respondeant de omnibus capitulis de toto hundredo vel wapentacco . capitula placitorum coronae regis . ii. de placitis coronae novis & veteribus , & omnibus quae nondum sin● finita , coram justiciariis d. regis : iii. item de omnibus recognitionibus & omnibus placitis , quae summonita sunt coram justiciariis per breve regis , vel capitalis justitiae , vel à capitali curiâ regis coram eis missa . iv. item de escaëtis , quae sunt & quae fuerunt postquam rex arripuit iter versus terram jerusalem , & quae fuerunt tunc in manu regis , & sunt modò in manu ejus , vel non ; & de omnibus escaëtis domini regis , si à manu sua sint remotae , quomodò , & per quem , & in cujus manus devenerunt , & qualitèr & qui exitus inde habuerit , & quos , & quid valuerint , & quid modò valeant , & si aliqua eschaëta sit , quae ad d. r. pertineat , quae in manu ejus non sit . v. item de ecclesiis quae sunt de donatione d. regis . vi. item de custodiis puerorum quae ad d. regem pertinent . vii . item de malefactoribus & eorum receptoribus & eis consentientibus . viii . item de maritagiis puellarum vel viduarum , quae ad d. regem pertinent . ix . item de falsonariis . x. item de interfectoribus judaeorum , qui sint , & qui vadii judaeorum interfectorum , & catallis , & terris , & debitis , & chartis , & quis ea habuerit , & quantum eis debuerit , & quae vadia habuerint , & quis ea teneat , & quantum valeant , & quis exitus inde habuerit , & quos : & omnia vadia & debita judaeorum interfectorum capiantur in manum reg. & qui ad occisionem judaeorum fuerant , & non fecerunt sinem cum d. r. vel justitiariis suis , capiantur , & non deliberentur nisi per d. r. vel justitiarios suos . xi . item de omnibus auxiliis datis ad redemptionem domini regis ( which were for his ransome out of the hands of the emperour henry ......... to whom limpold duke of austri● , who took him prisoner , had sold him and amounted to cxl . marks of silver ) quis quantum promiserit , & quantum reddiderit , & quantum aretro sit . xii . item de fautoribus comitis johannis ( it was his brother who affected the english diadem , in the time of richard 's captivity ) qui finem fecerunt cum d. rege & qui non . xiii . item de catallis comitis johannis , vel fautorum ejus , quae ad usum d. regis non sunt conversa , & quantum vicecomites receperunt , vel ballivi sui , & quis aliquid contra antiquas consuetudines regni dederit . xiv . item de omnibus terris comitis johannis , de dominicis & wardis , & escaetis , & de donis suis ; & quâ de causâ data sunt ei illa dona , & omnia dona comitis johannis capiantur in manum regis , praeterquam illa quae per regem confirmata sunt . xv. item de debitis & fi●ibus quae debentur comiti johanni & quâ de causâ , & omnia exigantur ad opus d. regis . xvi . item de foeneratoribus & eorum catallis , qui mortui sunt . for by an old law of the confessor , usury under pain of loss of the offender's substance , is forbidden . xvii . item , de vinis venditis contrà assisam , & de falsis mensuris , tam vini quam aliarum rerum . xviii . item de cruciatis mortuis ante iter suum arreptum versus jerusalem , & quis eorum catalla habuerit , & quae , & quanta . xix . item de magnis assisis , quae sunt de centum solidatis terrae , & infrà . xx. item de defaltis . xxi . praetereà in quolibet comitatu eligantur . milites , & unus clericus , custodes placitorum coronae , & nullus vicecomes sit justitiarius in vicecomitatu suo , nec in comitatu , quem tenuerit post primam coronationem d. regis . annexed is to all these an intricate kind of inquisition , appropriated to that time , of the kings profits in wards , and escaets , with farms , and other country-commodities , which would receive larger place here , than the inconveniency demands . xxii . omnia debita & vadia judaeorum imbrevientur , terrae , domus , redditus & possessiones . judaeus vero , qui aliquid horum celaverit , sit in forisfacturâ d. regis de corpore suo , & concelamento , & de omnibus possessionibus suis , & omnibus catallis suis , nec unquam concelamentum judaeo recuperare licebit : with particular form of place and persons , where , and before whom this imposition might be performed . xxiii . for especial exercise in chivalry , that practice might breed skill , and both alacrity to arms , he instituted by grant , torneaments , but not without certain restraints ; as by his charter thereof made to hubert archbishop of canterbury , and reported in the red book of the exchequer , is thus apparent ; sciatis nos concessisse , quod torneamenta sint in angliâ , in quinque plateis inter sarum & wilton , inter warwick & kelingworth , inter stamford & walingford , inter brakeley & mixeber , inter bly & tikehill : ita quod pax terrae meae non infringatur , nec de forestis nostris damnum inferatur . et comes , qui ibi torniare voluerit , dabit nobis xx. marcas ( understand it of silver ) & baro x. marcas ; & miles , qui terram habuerit , iv. marcas , & qui non habuerit , ii. marcas . nullus autem extraneus ibi torniabit ; unde vobis mandamus quod ad diem torneamenti habeatis ibi ii. clericos , & ii. milites vestros , ad capiendum sacramentum de comite & barone , quod vobis de praedictâ pecuniâ ante torneamentum satisfacient ; & quod nullum torniare permittant , antequam super hoc satisfecerit ; et x. marcas pro cartâ ad opus nostrum capiatis , unde comes sarum & comes de clara & comes de warrena plegii sunt . teste meipso apud villam episcopi , xxii . die augusti . first use of these torneaments was ( as william of newborough delivereth ) in the time of stephen , prohibited under henry fitz-l'empres , and by this lyon-hearted prince , to martial honor , restored . xxiv . praecepit , quod omnes , qui chartas habebant , venirent ad novu● sigillum suum ( this new seal was , after the old lost , with one roger , the king's vice-chancellor , drowned in the cyprian sea ) ad chartas suas r●novandas . xxv . constitutum est , quod omnes mensurae totius angliae sint ejusdem quantitatis , tam de bladis , quam de leguminibus & de rebus consimil●bus ; scilicet una bona summa aequi : & haec mensura sit rata , tam in civitatibus & burgis quam extra ; mensura etiam vini & cerevisiae , & cunctorum liquorum , sit ejusdem quantitatis , secundum diversitatem liquorum ; pondera etiam & librae , & caeterae pesiae , sint ejusdem quantitatis in toto regno , secundum diversitatem mercaturarum . xxvi . mensuris bladorum & liquorum , vini & cerevisiae , inclaventur claves , ne per dolum possint falsari . xxvii . lanei panni , ubicunque fiunt , fiant de eâdem latitudine , scilicet de duabus ulnis infra lisuras , & ejusdem bonitatis in medio & in lateribus . xxviii . eadem ulna sit in toto regno , & ejusdem quantitatis , & ulna sit ferrea . xxix . ne quis mercator praetendat seldae suae rubros pannos , vel nigros , vel scuta , vel aliqua alia , per quae visus emptorum saepe decipiuntur , ad bonum pannum eligendum . xxx . nulla tinctura vendenda , nisi solummodò nigra , nec fiat ( so i distinguish the words ) alicubi in regno , nisi in capitalibus civitatibus , aut burgis iv. aut vi. legales homines de ipsâ villâ secundùm quantitatem villae ; similiter , in vicecomitatu ; aut cum praepositis civitatis aut burgi , si in manu vicecomitis non fuerint , assignentur ad assisam custodiendam ; scilicet sub hâc formâ , ut ipsi videant & certi sint quod omnia vendantur , & emantur per eandem mensuram , & omnes mensurae sint ejusdem quantitatis , secundùm diversitatem mercium . xxxii . the punishment of the offenders , was corpora eorum capiantur , in carcerem detrudantur , & omnia quae ipsius sunt , ad fisci commodum , seisiantur . xxxiii . if the instituted comptrollers fail in that trust committed to them , de catallis suis in misericordia regis remaneant . xxxiv . an aid of s. the hide , was taken through the kingdom : for collection were commissions granted , and power of conventing the land tenants , and charging them by oath to make true report of hides in every mannor ; ad poenam verò juratorum , qui aliquid contra juramentum suum celaverint in hoc negotio , statutum erat , quod quicunque rusticus convictus fuisset de perjurio , daret domino meliorem bovem de carucâ suâ , & insuper responderet de proprio ad opus d. regis , tantum pecuniae , quantum fuisset declaratum per suam perjuriam fuisse celatum . si verò liber homo ( by the opposite of the title ( rusticus ) i conceive generally tenants in ancient demesne , which are not allowed the addition of freeman , and copyholders ) convictus fuisset , esset in misericordià regis , & insuper refunderet de proprio , ad opus d. regis , quantum fuerit per eum celatum , sicut & rusticus . xxxv . statutum fuit , quod quilibet baro cum vicecomite faceret districtiones super homines suos , & , si per defectum baronum , districtiones factae non fuissent , caperetur de dominico baronum quod super homines suos restaret reddendum , & ipsi barones ad homines suos inde caperent : & libera feoda ecclesiarum parochialium de hoc tallagio excipiebantur , & omnes excaet . baronum quae fuerunt in manu domini regis , communicaverunt . xxxvi . serganteriae d. regis , quae non erant de feodis militum , excipiebantur : take it of graund or petit serjeanty , and it fully accords with some term books , of later times allowed , and published . capitula placitorum coronae d. regis , whereof hugh bardulph , roger arundel , and geffrey harset , justices in eire through the northern parts , held plea. xxxvii . de omnibus assisis , & de magnis assisis , usque ad x. libratas terrae , & infrá . xxxviii . de advocationibus ecclesiarum , & capiantur coram eis electiones magnae assisae per mandatum d. regis , vel ejus capitalis justittae . xxxix . de ecclesiis vacantibus vel non vacantibus , quae fuerunt de donatione d. regis . xl. de excaetis d. regis . xli . de donationibus & de valectis , & puellis , quae sunt , vel esse debent , in donatione d. regis , & de valentiis terrarum suarum , & si quis eorum vel earum sit maritatus , & inquiratur cui , & per quem , & à quo tempore . xlii . quae viduae non finierunt pro se maritandis , & finis capiatur ad opus d. regis . xliii . de serganteriis d. regis , quis ea habet , & per quem , & quantum valent , & qui finem non fecerunt ad auxilium domini regis ( look before in art . xxxvii . ) & qui fecerunt , & finis capiatur . xliv . de usuris christianorum , & eorum catallis , qui sunt mortui . xlv . de illis , qui sunt in misericordiâ regis , & non amerciati . xlvi . de purpresturis d. regis . xlvii . de viis d. regis estreciatis . xlviii . de thesauris inventis . xlix . de malefactoribus & eorum receptoribus . l. de fugitivis retatis , reversis post ultimam assisam . li. de omnibus ponderibus , & mensuris , & ulnis renovatis , & si iv. homines ( refer hither the xxxii . article ) qui sunt attornati ad haec custodienda in unaquâque villâ , fecerint quod inde statutum est , & si attachiaverint transgressores illius assisae , & si non attachiaverint , prout debent , puniantur sicut ipsi transgressores . lii . totum vinum illius qui vendidit contra assisam , capietur ad opus d. regis , & praetereà dominus vini & venditores , sint in misericordiâ regis . liii . of defaults in the commissioners , appointed for levying the aids . liv. de custodibus portuum maris , si quid receperunt quod non reddiderunt , & si mercedem aliquam receperunt pro jure regis retinendo , & si quis aliquid receperit , qui non fuerit ad hoc attornatus . the justices of the forest , h●gh of nevill chief justice , hugh wac , and ernise of nevil made their circuits , authorised by the king's commission ; that in every county , where they were to pass , they should call before them ad placita forestae , archbishops , bishops , earls , barons , all free-holders , the chief of every town , and iv. yeomen ad audienda praecepta regis . haec est assisa d. r. & haec sunt praecepta de forestis suis in anglia , facta per assensum & consilium archiepiscop . & episc . & abbat . comit. & bar. & militum totius regni . lv. that none should trust , in hope of easie composition for offences , touching venison , or other matters of the forest , but that justice should be done to the convict , qualis facta fuit tempore henr. avi patris d. regis ( viz. ) ut amittant oculos & testiculos . lvi . that none presume to keep bowes , arrowes , grey-hounds , or other dogs in the king's forest , nisi habeant ipsum r●gem ad warrantum suum , vel aliquem alium , qui eum possit inde warrantizare . lvii . quod nullus donet vel vendat aliquid ad destructionem bosci sui , vel ad wastum quae sit infrà forestam regis , sed concedit bene quod capiant de boscis suis quod necesse eis fuerit , sine wasto , & hoc per visum forestarii sui & viridariorum suorum . lviii . quod omnes illi , qui boscos habent infrà metas forestae d. regis , ponant idoneos forestarios in boscis suis , de quibus forestariis ipsi , quorum bosci fuerint , sint plegii , vel tales inveniant plegios idoneos , qui possunt emendare , si forestarii in aliquo forisfecerint , quod d. regi pertineat . lix . that the king's foresters take special survey , lest other mens woods , intrà metas forestae , be destroyed ; & sciant benè illi , quorum bosci fuerint , quòd de ipsismet , vel de eorum terris , capietur emendatio , & non de alio . lx. quod sui forestarii jurent , quod secundùm omne posse suum , tenebunt ejus assisam , qualem eam fecit de forestis suis , & quòd non vexabunt milites , neque probos homines , de hoc quod d. rex iis concessit de boscis eorum . lxi . that in every county , where he hath venison , there be placed xii . milites , ad custodiendam venationem suam & viride in forestis suis , & quod iv. milites ponantur ad adgistandos boscos suos , & ad recipiendum pannagium suum , & custodiendum & defendendum . lxii . quod nullus adgistet boscos suos infra metas forestae ( i think you had need translate metas into regard oft-times among these orders ) antequam bosci eorum adgistentur ; et est sciendum quod incipit adgistamentum d. regis xv. dies ante festum s. michaëlis ; & durat xv. dies post festum s. michaëlis . lxiii . si forestarius ejus habet in custodiâ suâ dominicos boscos regis , & bosci illi destructi fuerunt , & non possit nec sciat justam causam monstrare , quare bosci destruantur , nihil aliud capiatur de forestario illo , nisi proprium corpus suum . lxiv . if any clergyman offend in the forest , non dubitent forestarii in eos manus imponere , ad eos resistendos & capiendos , ipse enim eos inde warrantizabit . lxv . that every three years view be taken of all assarts , as well new as old , and of all purprestures , and of all wasts of the woods , and that they be severally inrolled . lxvi . that archbishops , bishops , barons , knights , freeholders and all yeomen of the land , appear at the summons magistri forestarii sui , ad placitanda placita de forestis suis. lxvii . ne aliqua caretta exeat chiminum in forestâ regis , neque porci sint in forestâ regis tempore de foinesun , ( it is now à foetatione , called the fence , or rather the fawnes month ) scilicet xv. diebus antè nativitatem s. joannis baptistae , & xv. diebus post idem festum . lxviii . who so shall offend in taking the king's venison , and be thereof attainted , shall have judgment of loss of his eyes and genitals ; qui autem forisfecerit in forestâ regis de viridi , sive per culpaturam , sive per esbrancaturam , sive per foditionem turvarum , sive per escoriationem morae , sive per culpationem de subvemore , sive per essartum , sive per novam purpresturam ; per sepem , vel fossatam ; vel per * remotionem molendini , vel cursus aquae , vel bercariae ; vel aliarum domorum , vel per foenum falcandum extra sepes vel extra fossata ; erit in misericordiâ regis de pecuniâ suâ , nisi habeat viridarios , vel forestarios regis ad warrantum . lxix . similiter qui arcus vel sagittas portaverint vel canes duxerint sine copulâ per forestam regis , & inde attaintus fuerit , erit in misericordiâ regis . lxx . videnda sunt in reguardo nova assarta & vetera inbladata post ultimum reguardum , & quo blado vel legumine inbladata sunt . lxxi . nova assarta in manu regis , si vetera assarta inbladata sunt de frumento vel siligine , unaquaeque acra dabit regi xii . denarios de illâ vestiturâ , & si inbladata fuerint de avenâ , vel hordeo , vel fabis vel pisis , vel alio legumine , unaquaeque acra dabit regi vi. denarios de illâ vestiturâ ; et sciendum est quod tempore henrici regis f. mat. imp. permissum erat intrà metas forestae fossata fieri loco sepium . lxxii . exiit edictum à rege , ut quicunque in regno suo forisfecisset clerico , aut alii viro religioso , non cogeretur satisfacere illi : sed si clericus , aut alius vir religosus , forisfecisset alicui laico , statìm compelleretur ad satisfaciendum illi : unde factum est quod viri religiosi ad redemptionem coacti sunt : the main end of all was exchequer profit ; which this richard too much labouring for by published edicts at home , and contending for by arms abroad , at length lost it , and together unluckily his life . chap. x. king john and his grand charter . the burden of the state after richard's death , was laid upon his brother john earl of moreton . he in the immediate times after his inauguration , made divers laws , touching sale and prices of french wines , reported in roger of hoveden's annals . but all conveniency of merchandize and they were so incompetible , that they were almost as soon abrogated , as enacted . consuetudines scaccarii super debitis d. r. inquirendis . i. statutum est in angliâ , & per praeceptum r. joannis confirmatum , quod nullus vicecomes recipiet aliquem ad praesentationem baronis in seneschallum , qui non possit respondere de misericordiâ pertinente ad transgressionem fidei , si fortè in eam inciderit . quod autem seneschallus ad praesentationem baronis , quod pacem faciat vicecomiti de debitis domini sui ad scaccarium , intelligendum est quod super computum vicecomitis mittatur in prisonam statutam , secundum legem scaccarii , & debitum regis capiatur de catallis domini sui , secundum legem scaccarii : quod si fidem praestitam non servaverit , ita quod ad computum vicecomitis non venerit , vel si venerit & sine licentiâ recesserit , corpus ejus capiatur , & in prisonam ponatur statutam , nec deliberetur nisi per speciale mandatum d. regis . item mittatur ad terram domini cujus seneschallus defecerit , & de catallis suis solvatur pecunia quae debetur , secundum legem scaccarii , & si pecunia illa debeatur pro fine terrae , & catalla non inveniantur , unde pecunia illa solvatur , ipsa terra , pro quâ finis facta fuit , capiatur in manum d. regis , & teneatur donec illa pecunia solvatur , secundum legem scaccarii . ii. in poenâ laesionis fidei , seneschallus , qui finem transgressus fuerit , nunquam de hoc vel de alio debito per fidem suam credatur , vel recipiatur , nec dominus credatur , vel recipiatur de hoc debito , nisi de gratiâ & voluntate regis , secundum legem & consuetudinem scaccarii . iii. fecit ( not long after ) generalitèr acclamari , ut legalis assisa panis inviolabitèr sub poenâ collistrigiali observaretur : quae probata fuit per pistorem gaufridi filii p. justitiarii angliae , & pistorem r. de thurnam . ita quod pistores poterint sic vendere & in quolibet quarterio lucrari iii. denarios , exceptis brennio & . panibus ad furn . & . servientibus iv. obolos , . gracionibus . quadrantem , & in busia iii. denarios , & in bultello obolum : with a proportionate price and weight 'twixt corn & bread at large reckoned . iv. celebrating the christmas at bristow , capturam avium per totam angliam interdixit . v. praecepit per forestas totius angliae sepes comburere , & fossata complanare , datis frugibus circumquâque bestiis ad devorandum . vi. after transaction of that great controversie 'twixt the king and innocent iii. bishop of rome , publick commandment was given for observation and maintenance of the laws of henry his great grandfather . vii . denuntiatum est praetereà vicecomitibus , forestariis aliisque ministris regis , sicut vitam suam diligunt , ne à quopiam aliquid violentèr extorqueant , vel alicui injuriam irrogare praesumant , aut scottalla alicubi in regno faciant , sicut facere consueverunt . but notwithstanding those general forms of reformation , a more serious and recapitulated was desired by the whole baronage ; a grand council is appointed at paul 's in london , and there by stephen archbishop of canterbury , is produced a copy of henry beauclerk 's free charter ( which is before expressed ) and the same delivered to the chief clerk there , to be openly read & pronounced . as soon as the barons heard it , was a uniform consent , that maintenance and assertion of those liberties should rest , as of more dear account , in their martial resolutions , than bloud or life . nay in short space after , mutual combination by solemn oath taken upon the altar was made among them , that their band of fealty dissolved ( for so they deemed john 's government had occasioned ) their swords should compel him to enseal their demands . to that place , which now only is called the temple ( then the new-temple ) where the king lay in warlike order , they go to execute their designs ; he binding himself with an interlocutory sentence , and giving caution of future satisfaction , takes day until easter following ; but all was no less delusory , than dilatory : nor any thing done with a face of composition , until the appointed meeting of the king and barons ( whose part hourly encreased ) in renimed , alias runingmede near stanes in middlesex ; whereof in the marriage of tame and isis , thus sings no small favourite of the muses ; subluit hic ( i. thames ) pratum quod dixit renimed anglus , quo sedere duces armis annisque verendi : regis joannis cuperent invertere sceptrum , edwardi sancti dum leges juraque vellent , principe contempto , tenebroso è carcere duci . where an instrument of publick liberties , through mediation of what is above all law , necessity , was , as you shall hear it speak , sealed and delivered to the baronage . johannes dei gratiâ angliae , &c. sciatis nos intuitu dei , & pro salute animae nostrae , & antecessorum omnium , & haeredum meorum , & ad honorem dei , & exaltationem s. e. & emendationem regni nostri , per consilium venerabilium patrum nostrorum stephani cant. archiep. totius angliae primatis , & s. r. e. cardinalis , henrici dublingensis archiep. will. londoniens . episc. petri wintoniensis , jocelini bathoniens . & glascon . hugonis lincoln . walteri wigorniens . will. coventrensis , benedicti roffensis episcoporum , & m. pandulphi d. p. subdiaconi , & familiaris fratris m. militiae templi in angliâ , & nobilium virorum will. marescalli com. penbriae , will. com. sarisburiensis , will. com. warrenae , will. com. arundel , alani de leweia constabularii scotiae , warini f. genoldi , petri f. herberti , & huberti de burgo senescalli pictatiae , hugonis de nevilla , matthaei f. herberti , thomae basset , alani basset , philippi de albeni , robert de ropesle , joannis marescalli & johannis f. hugonis , & aliorum fidelium nostrorum . viii . inprimis concessisse deo , & hâc praesenti chartâ nostrâ confirmasse , pro nobis & haeredibus nostris in perpetuum , quod anglicana ecclesia libera sit , & habeat jura sua integra , & libertates suas illaesas , & ità volumus observari , quod apparet ex eo quod libertatem electionum , quae maxima & magis necessaria reputatur ecclesiae anglicanae , merâ & spontaneâ voluntate ante discordiam inter nos & barones nostros manifestè motam , concessimus & chartâ nostrâ confirmavimus , à d. pp . innocentio tertio confirmari , quam & nos observabimus , & ab haeredibus nostris in perpetuum bonâ fide volumus observari . ix . concessimus etiam , & omnibus liberis hominibus nostris regni angliae , pro nobis & haeredibus nostris in perpetuum , omnes libertates subscriptas , habendas & tenendas eis & haeredibus suis , de nobis & haeredibus nostris . these premisses are in the grand charter of henry the iii. commonly published in our printed statutes , nor in any word of moment is there a difference found 'twixt this of john and that of henry , until the prohibition of disparagement in marriage of young wards ; which thus commandeth , haeredes maritentur absque disparagatione : to this is added in a continued sentence ; ità tamen , quod antequàm contrahatur matrimonium , ostendatur propinquis de consanguinitate ipsius haeredis . the vii . and viii . chapters of widows and their quarentines , with that of the king's debtors , are also in like words following : but this of john hath this further additament . x. si quis mutuo acceperit aliquid à judaeis , plùs vel minùs , & moriatur antequàm debitum illud persolverit , debitum illud non usuret quamdiù haeres est infra aetatem , de quocunque tenet ; & si debitum istud incidat in manus nostras , nos non capiemus nisi catallum contentum in chartâ : who elsewhere seeks the true understanding of the statute of merton under title of usury , must still remain in an extravagant search , until he return to that exposition which lies here open . xi . si quis moriatur , & debitum debeat judaeis , uxor ejus habeat dotem suam , & nil reddat de debito illo ; et si liberi ipsius defuncti , qui fuerunt infrà aetatem , remanserint , provideantur eis necessaria , secundùm tenementum quod fuerit defuncti : & de residuo solvatur debitum , salvo tamen servitio dominorum : simili modo fiat de debitis quae debentur aliis quàm judaeis . xii . nullum scutagium vel auxilium ponam in regno nostro , nisi per commune consilium regni nostri ( according is a grant of e. . in thomas of walsingham 's history ) nisi ad corpus redimendum ( in the norman customary it is aide de rancon , which in an ancient manuscript of xxi ed. . in the case of robert of wentham , i have seen released between common persons ) and ad primogenitum filium nostrum militem faciendum , & ad primogenitam filiam nostram semel maritandam ; et ad hoc non fiet nisi rationabile auxilium : simili modo fiat de auxiliis de civitate londoniense . here is adjoyned the general franchises of london , other cities , boroughs , towns and ports verbatim as in the ix . chapter , which concluded ensues . xiii . ad habendum commune consilium regni de auxiliis assidendis aliter quam in tribus casibus praedictis , & de scutagiis assidendis , submoneri faciemus archiepiscopos , episcopos , abbates , comites & majores barones regni , singillatim per literas nostras ; et praetereà faciemus submoneri in generali per vicecomites & ballivos nostros , omnes alios qui in capite tenent de nobis , ad certum diem , scilicet ad terminum . dierum ad minus , & ad certum locum ; & in omnibus literis submonitionis illius causam exponemus , & factâ submonitione , negotium procedat ad diem assignatum , secundum consilium eorum qui praesentes fuerint , quamvis non omnes summoniti venerint . xiv . nos non concaedimus de caetero alicui , quod capiat auxilium de liberis hominibus suis , nisi ad corpus suum redimendum , & ad faciendum primogenitum filium suum militem , & ad primogenitam filiam suam semel maritandam ; & ad hoc non fiat nisi rationabile auxilium : unto the xviii . chapter inclusively of henries charter from hence , are in both almost the same syllables ; but whereas the printed close of the same chapter , is , salvis uxori ejus ( i. e. of one that is dead ) & pueris suis rationabilibus partibus suis , here is further : xv. si quis liber homo intestatus decesserit , catalla sua per manus propinquorum parentum & amicorum , per visum ecclesiae distribuantur ( see art. ix . in hen. . ) salvis unicuique debitis , quae defunctus ei debebat ; and in divers old written copies of the common and usual magna charta 's , the self same words continue that chapter ; all is in both alike unto the end of the provision for safe conduct of merchants ; but thereto in this historical report succeeds , xvi . liceat unicuique de caetero exire de regno nostro , & redire salvò & securè per terram & per aquam , salvâ fide nostrâ , nisi in tempore guerrae per aliquod breve tempus propter communem utilitatem regni , exceptis imprisonatis & utlagatis , secundùm legem regni , & gente contra nos guerrinâ , & mercatoribus , de quibus fiat sicut supradictum est . what follows in either is the same as well in words as sence . and as we have now in every man's hands a charter of the forest also distinct from the other , so had the barons then to them granted ; and very small or no difference is found between theirs and that , whose fore-front is since signed with king henry 's name . i suppose it fit place and time here to give remembrance of an escaped , and in every impression that i have seen allowed , fault , in the vii . article of the forest charter , which by little alteration , and thus pointing , is corrected ; nullus forestarius vel alius balivus de caetero faciat scottallum , vel colligat herbas , ( you may read garbas ) vel avenam , vel bladum aliud , vel agnos , vel porcellos , nec aliquam collectam faciat ( nisi , so is the print but in king john 's copy , and in divers manuscripts of our statutes , one having the subscribed authority of exam. per rot. i have warrant to read , and distinguish with a full period at faciat , and turning nisi into & go thus forward ) & per visum & sacramentum xii . regardatorum , quando faciunt reguardum ( taking away the point there ) tot forestarii ponantur ad forestas custodiendas , quot ad illas custodiendas rationabilitèr viderint sufficere ; how much the sence differs , small observation soon discovers . the concluding date of these granted franchises , and restored laws , john stow saith was , given by our hand in runingmede , betwixt stanes and windsor , the xvi . of june , the xvii . of our reign : unto which all the whole realm was sworn . but the fluxile nature of this deceitful prince , aided by pope innocent iii. and his nuntio pandulph , soon loosed that kind of royal faith and promise ; as quick were the barons ( they by oath had bound themselves to constrain him by arms , if their expectations in his future carriage were frustrate ) and ready to , and did , revolt . death of the king prevented their projects , which for this purpose in the ix . year of the succeeding henry fitz john ( as the first page of our printed volumes of old acts of parliament give to every reader testimony ) were with some ease attained , and by his posterity , as the main freedom of the english common-wealth , hath been since more than thirty times , by the true authority of the state , in their high-court , confirmed . soli deo gloria . chronologia huic nostrae inserviens epinomidi . ante christvm . m.c.viii . brutus ille , quem trojanâ aiunt , sed potissimum bardi , stirpe oriundum , à quo post samotheos ( magis semnotheos ) sumus auspicati , sed aliena nempe & dubia fide fertur adpulisse . ccccxii . dunvallo molmutius . ccclvi. martia r. guinthilin vxor. lv. julius caesar , is primum romanis ostendit britanniam , & territa britannis terga . ab incarnato deo. lii . claudio caesare deducta camalodunum colonia insulaeque pars in praesidialem redacta provinciam . clxxx . commodo imp. obsignatam recepit palingenesiam lucius rex ab elutherio pp . ab incarnato deo cdxlix . britanniam anglo-saxones advehuntur , theodosio jun. rom. imp. nec multis inde curriculis annorum interceptis heptarchas inter quae jam anglia dispertita . sed camdeno è fastis consularibus beda & ninnio rationibus subductis cdxxviii . floruere dlxi . aethelbertus rex cantii , primus anglo-saxonum ( foelicissimo ducta sibi in uxorem auspicio bertha francorum regis filia ) princeps christianus . dccclxxii . alfredus seu aluredus rex . dcccclix . edgarus rex . mlxvi . willielmus normanniae dux haroldum conserta in planitie juxta hastings in agro suthsexiensi manu , atque anglorum copias devicit . ii. nempe id. octobr. & regio se insignivit hic titulo . m.lxxxviii . willielmus rufus primi filius . m.c. henricus primus rufi frater . m.cxxxv . stephanus blesensis . ab incarnato christo m.c.liii . henricus filius matildis imp. & galfridi com. andegavensis . m.c.lxxxix . richardus primus henr. fil. m. c.lxxxxix . joannes r. richardi frater . finis . two treatises written by john selden of the inner-temple , esquire . the first , of the original of ecclesiastical jurisdiction of testaments : the second , of the disposition or administration of intestates goods . london , printed for thomas basset at the george in fleet-street , and richard chiswell at the rose and crown in s. paul's church-yard . mdclxxxiii . the contents . part i. of the original of ecclesiastical jurisdiction of testaments . chap. . the intrinsecal jurisdiction not given to the church by the civil law , page chap. ii. nor by the canon law. p. chap. iii. the extrinsecal jurisdiction by the civil law , in whom , ibid. chap. iv. in whom by the canon law , p. chap. v. of the intrinsecal jurisdiction in the saxons time , p. chap. vi. whence linwood thinks the jurisdiction intrinsecal came to the church , p. chap. vii . testimonies of king john and henry the third's time , that may serve to prove the extrinsecal jurisdiction then in the temporal courts , p. chap. viii . suits of legacies personal in the spiritual court from the beginning of henry the third , of the beginning of that course , p. part ii. of the disposition or administration of intestates goods . chap. i. in whom it was in the time of the saxons , p. chap. ii. in whom after the normans until king john's time , p. chap. iii. in whom after the time of king john , p. chap. iv. how that so granted by king john's charter in parliament hath continued in practice , p. chap. v. of that of bona intestatorum in manus domini regis capi solebant , p. part i. of the original of ecclesiastical jurisdiction of testaments . chap. i. the intrinsecal jurisdiction not given to the church by the civil law. the jurisdiction of testaments being either intrinsecal or extrinsecal , ( that is ) either touching probate , or recoveries of legacies : first for the intrinsecal , it is clear that it came not to the bishop by imitation ; or otherwise , from the imperial civil law : for by the elder part of that law , regularly the probate or aperture of wills was before the (a) praetor . and afterward the obsignation , insinuation and probate of them in rome , was before the magister census , or (b) apud officium censuale , as it were before the barons of our exchequer ; and that continued into later time . and the same officer by the name of (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or generalis in constantinople , had the same authority : but also afterwards as well the questor's seal , as that of the generalis became to be used at the obsignation , and his authority also in the probate or aperture . and the emperour leo (d) about the year . transferred all that herein belonged to the generalis into the questor's place ; yet so , that some other civil magistrates had the like authority : and what was done before these in rome and constantinople , was in other cities before their chief governours , as defensores or praefides : neither was the church permitted to have to do with the insinuation of testaments , but expresly forbidden by a rescript (e) of the emperour justin : nor is any thing that gives it either among the novells of the greek empire , or in the lombarda , or capitulares , which have (f) been reputed as parts also of the imperial law. chap. ii. nor by the canon law. neither in any general council , or other part of the received canon law , doth any testimony occurr , that gives the church this intrinsecal jurisdiction . but in the fourth council of (a) carthage holden in the year . it was ordained , vt episcopus tuitionem testamentorum non suscipiat . and this being then established by two hundred and fourteen bishops , was afterwards made a part of (b) the decrees , or canon law , collected by gratian , and published and authorized by pope eugenius the third about . and the gloss upon that canon interprets tuitio for aperture or probate . so also pope (c) innocent the fourth understands it : publicatio ( saith he ) fieri non debet apud episcopum ; and he vouches that law , (d) consulta ducalia tit . de testament . to prove it . speculator , hostiensis and others of the same time , and generally the rest that follow them , make the civil law only the square of the jurisdiction of the probates ; and so it is truly affirmed in our books , that the probate belongs not to the church (e) by the spiritual law ; neither is any such thing given by any later (f) bull , or decretal from the bishop of rome . chap. iii. the extrinsecal jurisdiction by the civil law , in whom . for the extrinsecal jurisdiction that gave recoveries of legacies , by the imperial civil law , where the legacies were in pios usus , the (a) bishop of the diocess sometimes by himself , sometimes with the civil magistrate , provided for the execution of the testators meaning : otherwise the jurisdiction of legacies , and what else falls under testamentary disposition , was and (b) is the magistrates only . chap. iv. in whom by the canon law. but by the canon law , the general care of execution of testaments is committed to the bishop : yet i find not any canon to that purpose received into the body of that law , now in authority , before the time of the decretals ; which have out of some council of mentz these words , viz. (a) si haeredes jussa testatoris non impleverint , ab episcopo loci illius omnis res quae eis relicta est canonice interdicatur , cum fructibus & caeteris emolumentis , ut vota defuncti impleantur . out of what council of mentz this is taken , i have not yet learned ; (b) but in the same syllables it occurrs in burchard , that lived about six hundred years since , with the marginal note of ex concilio moguntino . what other texts are , touching the power of the canons over performance of testaments , have reference to that course ordained by the civil law , where any thing was given in pios usus , not to a general jurisdiction ; for so is the canon nos quidem extr . tit . de testam . neither is that canon vltima voluntas in c. . q. . taken out of s. gregory , otherwise to be understood , if you interpret it as you ought by those (c) places of gregory whence it is taken : but the canonists generally upon that canon si haeredes , take it , that executio testamentorum ad episcopos spectat . and so those old ones pope innocent the fourth , bernard , and others of the rest deliver ; and the (d) latter follow them , yet they commonly restrain it ( and that in practice in other states ) to legacies given in pios usus . and in the council of trent , where twice the bishops power over testaments is provided for , (e) nothing is spoken of but commutations of legacies , and of such as are given in pios usus : yet from ancient time both the intrinsecal and extrinsecal jurisdiction of testaments made of personal chattels in england , hath been and is in the church , except in places where special custom excludes it : the original whereof being not sufficiently found in either of these laws ( the civil and canon ) divers parts of which according to the various admission of several estates have been much dispersed through christendome , and some remain now exercised by imitation among us ; it rests , that disquisition be made for it in the monuments of the kingdom , that according as they together with the canons afford light , some conjecture may be had touching the antiquity and ground of it . chap. v. of the intrinsecal jurisdiction in the saxons time . the eldest testament that i have seen made in england , is that of king edgar's time , made by (a) one birthric a gentleman or thane ( it seems ) of great worth , and his wife elswith ; wherein they devise both lands and goods ; and in the end of the will sayes her husband . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; and i pray for gods love my leefe lord , that he doe not suffer that any man our testament do break . it may perhaps thence be collected , that the protection or execution of this testament was within the jurisdiction of the lords court , as also the probate ; and that especially , because divers lords (b) of mannors have to this day the probate of testaments by custom continued , against that which is otherwise regularly setled in the church . but the same testament being for lands as well as for goods , it may be that this clause had reference to the lord in regard of the land only , ( to the alienation of which , his assent might be requisite ) or to denote him for the testators best friend , as one chosen overseer of his will ; and indeed he desires all other good people to see his will be not broken ; which makes me only offer it , as what another mans fancy may work on : but i conceive not out of it enough to prove either way any thing touching the jurisdiction of testaments . nor in the saxon times appears any thing that can sufficiently direct us to know , how it was exercised here , unless out of that example of siwerth of durham's testament , in the (c) book of ely , you may collect , that the probate was supply'd in the life-time of the testator by inrolment , or leaving an indented copy of it with the alderman or sheriff of the county , in whose county-court the most of proceedings of temporal justice , and of the spiritual also ( for the bishop sate with him , as in his consistory ) were in the saxon times : for so much perhaps may be conjectured out of it , as we faithfully here relate it . siwerth in king edgar's time , lying sick at lindane in the isle of elie , makes his testament , and sends for brithnorth abbot of elie , and divers of the monks , and others of the gentry ; and the abbot writes the testament in tribus chirographis , coram ( so are the words of the book ) cunctis fecit recitari , lectumque fecit incidi , unamque partem chirographi retinuit siferthus , alteram autem dedit abbati , tertiam vero misit statim per praefatum brithelmum ( that was one of the gentlemen of the countrey then present ) ailwino aldermano , qui tunc temporis degebat in elie , & petiit ab illo ut suum testamentum stare concederet , quomodo abbas illud scripserat , & ordinaverat apud lindane coram praedictorum testimonio virorum . cum itaque ailwinus alderman hoc audisset , & chirographum vidisset , remisit illico ad eum wlnothum de stowe cum brithelmo , sciscitatusque est ab eo quid aut quomodo vellet de testamento suo : qui mox per eosd●m renuntiavit ei , sic suum testamentum absque omni contradictione vel mutatione se velle stare , sicut praefatus abbas illud in chirographo posuerat , quod ut ailwinus alderman audivit , totum concessit , ut staret sicut ipse siverthus testatus erat . but in deed , in it lands lying in durham were devised to the abbey ; and so , it was not only of personal chattels . the saxon laws are very silent of any thing touching testaments ; and we must remember , while we think of that example of siwerth of durham , that the ecclesiastical and temporal courts of common justice , held as one by the sheriff and bishop , were not severed as now , into the consistory , and county court , until the conqueror did it by a law yet remaining and elsewhere published (d) in what intercedes from this time , until about h. . i find not any testimony that gives light to this purpose ; as the saxon laws , so those of the conquerour , and of h. . and h. . mention nothing that tasts of either kind of jurisdiction of testaments ; only of a charter of h. . extant in matth. paris , and in the red book of the exchequer this occurrs , si quis baronum vel hominum meorum infirmabitur , sicut ipse dabit vel dare jusserit pecuniam suam , ita datam esse concedo . this may perhaps seem to denote , that the kings court determined of legacies , especially of the kings tenants . but indeed it proves not so much . but the eldest passage that proves clear enough here , is that which makes the intrinsecal jurisdiction to have been in the church , and the extrinsecal in the kings court ; i mean that which is found in the treatise attributed to randall of (e) glanvill chief justice under h. . where he sayes , that if a legacy be detained , the executors or other friends of the testator , were to get the kings writ to the sheriff , commanding quod justè & sine dilatione facias stare rationabilem divisum , ( that is , the bequest or legacy ) . n. sicut rationabiliter monstrari poterit quod eam ●ecerit , & quod ipsam stare dibeat , &c. and it is plain by the words there preceding and subsequent , that it hath reference to moveable or personal possessions , not to lands , &c. so that it seems clear by that in h. . his time , the jurisdiction of personal legacies was in secular courts . but if the issue in secular courts upon that writ came to be , whether the testament were true or no , or well made , or whether the thing demanded were in facto bequeathed , tum ( sayes he ) placitum illud in curta christianitatis audiri debet , & terminari , quià placitum de testamentis coram judice ecclesiastico fieri debet , & per illorum qui testamento interfuerint testimonia secundum juris ordinem terminari : that is , as it must be understood , that upon issue of bequeathed or not bequeathed , of testament made , or no testament , the tryal must have been otherwise than by the practice of the latter (f) law , wherein the testament is traversable , and the traverse tryable in the kings court by certificate to the temporal court from the ecclesiastical , as at this day , of institution , bastardy , and profession in religion , and the like : and thence may it be well concluded , that at this time by the practised law , the probate or the intrinsecal jurisdiction was in the church ; for as the institution , bastardy and profession are to be certified , because within the bishops juris●iction . some recorded testimonies remain of the first and third , and the nature of the marriage or cohabitation ( that directs in the second ) is to be judged of only in the spiritual courts ; so the validity of the testament , or the truth of this or that particular legacy was to be certified from the spiritual court , because the probate had there proceeded , and the copy there remaining was most authentick ; otherwise to what purpose should they have sent to the spiritual court in such a case ? but on the other side , as in the case of institution , profession and bastardy , the consequence of them , which are objects of their extrinsecal jurisdiction , as descent , exclusion from inheritance , gaining it by a descent cast , or legal making a church full , or the like are determinable only at the common law ; so the consequence of a testament , that is , the recoveries of legacies , and such like , as it seems by that writ , were in the temporal , not in the spiritual court. i know the authority of that treatise is suspected , and some of the best and ancientest copies having the name of e. de n. which i have heard from diligent searchers in this kind of learning , affirmed to have been sometimes e. de narborough , and not r. de glanvilla , it hath been thought to be anothers work , and also of later time . but , as on the one side , i dare not be confident , that it is glanvills , so i make little question , that it is as ancient as his time , if not his work. the tests of the precedents of writs under his name , the language , especially the name of justitia alwayes for that which we now from ancient time call justitiarius ; and justitia was so used in (g) writers under h. . and the law delivered in it tasteth not of any later age. and howsoever it comes to pass , the regiam majestatem of scotland published by command of david the first under the time of our hen. . hath for the most part the same syllables with this supposed glanvill , and expresly (h) the very passages and the writ that we have now here noted for testaments . that extrinsecal jurisdiction of those times in the secular courts , was perhaps denoted by those words in the testament of theobald arch-bishop of canterbury under king stephen , (i) supremis ( saith he ) deficientium voluntatibus suum accommodant jura favorem , where he devises only personal things and uses . i think , jura is rather to be taken for the common law , than the spiritual ; which is , in the most usual phrase of that time , designed by canones . in this time of hen. . divers fierce controversies fell between the law and spiritual jurisdiction , and the particulars of them are largely related at the end of quadrilogus , in gervase of dover , in roger of wendover , in john of salisbury , and matthew paris , but in him most abruptly ; yet not the least mention is in them touching any matter of this jurisdiction ; and in the main cases of our spiritual courts depending under h. . and sent by appeal to rome , which yet remain in the epistles of john of salisbury , there is not one that touches upon either of these jurisdictions of testaments in the church ; but indeed there is one that may seem somewhat to prove for that which we note out of glanvill , concerning the intrinsecal jurisdiction at that time in the temporal court : for in an appeal sent to pope alexander the third , the case , as john (k) of salisbury relates it , was , that one richard de anestia in foro secularium judicum petitionem haereditatis ad bona avunculi obtinenda instituit , against mabile de franckvilla , being daughter to william of sackvill , to whom the plaintiff was nephew by his sister : and the point of the issue between the daughter here and the nephew , being upon the bastardy of the daughter , the spiritual court had the tryal of it . if ( bona ) here be understood for chattells , as in our law it is , and so restrained , then was this petitio haereditatis , as a suit for sackvill's goods , grounded also , as it seems , upon a testament of his : for in the relation of the case also , richardus insistebat , sayes the author , institutioni avunculi , petitionem haereditatis instituens ; and on the other side , mabile maxime patris novissimae voluntati innitebatur : which shews , that here was a testament in the case , and a suit for what was challenged by it in the temporal court : but haereditas and bona , it is likely , included here ( as by the civil law ) all possessions of the ancestor , both real of inheritance , and personal , that is , the universum jus defuncti , and not only our inheritance ; although it doth also amongst some (l) civilians denote no more , if at least they understand aright what they say , while they write , that consuetudo est in anglia quâ primogenitus succedit in omnibus bonis : and in this case , if the issue had been upon the truth of the testament , as it was upon the bastardy , it had been referred also to the spiritual judges . chap. vi. whence linwood thinks the jurisdiction intrinsecal came to the church . by what is before delivered , it appears , that the intrinsecal jurisdiction or probate was in the church ; and that by express testimony , as anciently as the time of h. . and by all probability it was in setled use before that time , being spoken of in that treatise called glanvill's , as a known course of proceeding : although indeed yet i could never see an express probate in any particular case , elder than about h. . but the beginning or course of this intrinsecal jurisdiction in the church , is not for ought i have yet learned , extant : however fairefaxe tells us , that it was by an act of parliament , which perhaps he took from that of linwood ; haec libertas ( ecclesiae ) quoad approbationem hujusmodi ( saith linwood ) fundatur super consensu regio , & suorum procerum ( in talibus ) ab antiquo , concesso . where he means by in talibus , their power of committing of administration of intestates goods , as it is plain by his quotation of that constitution of arch-bishop stafford tit . de immunitate eccles. accidit . novitate perversas quidam etiam : that power was given , as i guess , by parliament in king john's time : but thereof more in due place . and linwood addeth , item fundatur super consuetudine in ea parte de scientia regum angliae , diutius conservata : which is indeed , that it is founded upon the common law or customary law of the kingdom ; or that it hath like antiquity or original as other parts of the common law , that is , immemorial custom . for though it be exercised according to the civil and canon law in the spiritual courts , with some reference had to the customs of england ; yet it is clear , that the power which the spiritual courts have to exercise it , is meerly by the common law ; although we find not when it came first to them , no more than we find divers of our setled courses and maxims in the common law ; touching which yet we can without much difficulty prove , that at such or such times they were not in practice ; as perhaps in the more ancient ages , this was not in these courts . but that it was originally belonging to the crown , that is , to the temporal courts , which are all , and ever were derived from the dignity royal , is affirmed also , as in that cited in hensloe's case , out of jocelin's history of the arch-bishop of canterbury , in a writ (a) h. . that prohibiteth the arch-bishop of york to call the executors of the tenants of s. leonard's hospital to prove their wills before him ; because as the words are , placita de cognitionibus scriptorum in regno nostro angl. ad nos , co●onam & dignitatem nostram specialiter pertinent : and also they had time out of mind used to prove them before the masters and brothers of the hospital . here we see the testaments reckoned as other evidences , the tryal and conusance whereof belongs only to the temporal courts : and at this day by special custom many lords of mannors have like probate in their courts baron . by the way , for that which fairefaxe , and others following him , tells us , that in all other countries the probate belongs to lay-judges , he is deceived , and deceives his readers . indeed , in the most places of other states it belongs to the lay-judges : but in france (c) generally the spiritual judges , both before fairefaxe his time and since , had this jurisdiction of probate , and so have had without controversie ever since the disputations about it and other parts of jurisdiction had with some clergy-men , by coniers attorney general to philip valois , and peter dreux in behalf of the duke of britain , at such time as the clergy had there so extended their jurisdiction , que les fauxbourgs estoint trois fois plus grands que la uille , as pasquire speaks of them . chap. vii . testimonies of king john and henry the third's time , that may serve to prove the extrinsecal jurisdiction then in the temporal courts . for the extrinsecal jurisdiction , as it seems by glanvill and other testimonies , that it was in the kings courts under h. . and so by all probability before : so out of other records of following time , somewhat may perhaps be collected to prove , that it continued long in them , as out of the patent of king john for oliver of rochford's testament , sciatis ( sayes (a) the king ) nos concessisse testamentum oliveri de rupe forti sicut rationabiliter conditum est , & apud s. florentiam veterem & rupem fortem scriptum & ordinatum . quare volumus & firmiter praecipimus quod nullus executorum testamenti ipsius impediat quin illud sicut rationabiliter conditum est faciant . then out of that of peter de roches bishop of winchester , and chief justice of england , touching the will of adam of gurdun , rex (b) dom. p. winton . episc. justic. angl. &c. mandamus vobis quod teneri facias testamentum adae de gurdun quod fecit de rebus suis mobilibus & omnibus aliis in angl. secundum dispositionem testamenti excepta terra quam de domino nostro habuit septimo augusti . teste meipso : this expresly gives some legal execution of a testament made of personal things unto the chief justice of england . and in (c) h. . robert of lexinton having the possession of all the goods of philip de vletott the testator , a writ goes out to him to pay william earl of salisbury a debt of ninety marks out of them , and that the rest should be delivered to the executors ad faciendum testamentum ; and another writ was sent , that he should per visum & testimonium execut. sell all vletott's goods , & denarios quos inde fieri feceritis , salvo faciatis reponi sub sigillo vestro & sigillo executor . praedict . donec aliud mandatum nostrum inde habueritis . and in hen. . a writ is directed to the sheriff of lincoln , (d) reciting , that whereas it appeared , that richard fitz-dune dyed not intestate , ideo tibi praecipimus quod omnia catalla ipsius richardi in manum nostram capta in balliva tua sine dilatione habere facias priori de noketon , and other executors of his testament ad faciendum inde rationabile testamentum : and other like writs occurr in the rolls of king john and h. . chap. viii . suits of legacies personal in the spiritual court from the beginning of henry the third , of the beginning of that course . but however it may seem by those testimonies , that the temporal courts had some extrinsecal jurisdiction of testaments in the time of king john and hen. . it is clear , that in the beginning of h. . suits for legacies personal were in the spiritual courts , and that it seems from custome setled in practice of the former times that were then newly past . and perhaps it might be in the more ancient times fori mixti , and as well exercised in the one , as in the other court ; as we have elsewhere shewed of the more ancient jurisdiction of tithes ; or it may be , that those writs in the former chapter , and the like , were but in case of tenants being testators , upon whose deaths all their goods were to be seised by the sheriff , or other such officer , and the debt ( if any were ) paid to the king , et residuum relinquebatur executoribus testamenti defuncti , as the words are , both of the charters of king john and h. . (a) and perhaps by that chapter of the charter those writs may be interpreted , and faciatis teneri testamentum may be but only an amoving of the kings hands from the goods , that so the executor might perform the testament ; for that the spiritual court did from the beginning of h. . exercise a jurisdiction for recovery of legacies , is infallibly proved by (b) cases of , , , & hen. . and the attachments upon prohibitions extant in records of that time , are , quare secutus est placitum in curia (c) christianitatis de catallis quae non sunt de testamento vel matrimonio : and many such more are both in the rolls and in matth. paris . it appears also in h. . in the case of symon fitz-simon , that even that suit for deviseable land being devised , was thought to be good in the spiritual court ex causa testamentaria , as if laicum feodum versum esset in catallum , until the devisee had recovered it : and after the recovery , iterum incipiebat esse laicum feodum — as (d) bracton sayes , where his printed copy is exceedingly corrupted . but it was clear law in the time of this bracton , who was a judge in the common pleas in the latter part of h. . that locum (e) non habet probatio in causa testamentaria si catalla legentur & inde agatur in foro ecclesiastico : and he reckons that of testaments inter spiritualia , & spiritualibus annexa , which agrees exactly in the known and practised consultations in the (f) register , placita de catallis & debitis , quae sunt de testamento & matrimonio , ad forum ecclesiae specialiter dignoscimus pertinere , &c. and although in case of legacy , as in case of tithes , the jurisdiction that gave the recovery of them , was sometimes in the one , sometimes in the other court , before it was restrained to the spiritual only , yet it seems by those cases of henry the third's time , which are testimonies beyond exceptions , that the spiritual jurisdiction over legacies , was long before in practice ; otherwise i guess that exception de testamento , & de matrimonio , had not been so familiar in the prohibitions of that age. and notwithstanding those cases out of the records of king john's and henry the third his time , the temporal court not only prohibited not the spiritual court , espec●ally in h●nry the third's time , but also had not any conusance of suits for personal legacies ; for neither have i ever met with any suit in that kind in the plea rolls of h. . or king john , or richard . ( but very few are extant of the time of the two last ) neither doth bracton admit any such thing . and the author of fleta in the time of e. . tells us expresly , (g) de causa testamentaria sicut nec de causa matrimoniali curia regis se non intromittet . but the beginning of that practice of the extrinsecal jurisdiction in the spiritual court , is even as difficult to find , as that other of probates . linwood tells us , that (h) libertas quoad secundum scilicet , puniendum impedientes quo minus testamenta & ultimae voluntates defunctorum procedant , ortum habet à privilegiis etiam in ea parte concessis , & à consuetudine similiter de scientia regum angl. diutius observata : and further , potuit ( saith he ) habere ortum out of those (i) laws in the code that made the bishop a protector of legacies in pios usus . it might be also in regard of the purpose of those laws in themselves ; and it were no great wonder , that the ecclesiastical court might have gained jurisdiction over all personal legacies under colour of such as were given in pios usus : but perhaps it will not be admitted for probability enough , that any part of the code being of the imperial or civil law , was ever so received here in england , as that it could induce any alteration touching the jurisdiction of the crown , that is , touching this extrinsecal jurisdiction which ( as is shewed ) did belong to the temporal courts : but whosoever will not admit of any such conjecture , must yet remember , that presently from king stephen's time , when the civil law was new born into the light , it having lain forgotten by the space of six hundred years before in the western empire , the code and other parts of that law were familiarly read by our english lawyers ; and i think as well by our common as canon lawyers : to omit that case of mabile of franchiville , wherein , it seems , a special regard was had to the civil (k) law , that permits not a meer bastard and succession ex testamento against a lawful heir of blood ; for otherwise how could richard the uncle's institution , as it seems by a former will have made colour of right for him , against the latter will which mabile pretended , unless he relyed upon her being a bastard . but i should think it probable enough , that the original of this jurisdiction for legacies , was out of the canon law. and that especially from that canon si haeredes , &c. before cited ; for although the decretals , wherein it stands now authorized for a general law , were first published but in h. . by gregory the ninth , and that we see by infallible testimony already brought , that legacies before that time , were recoverable in the spiritual court , yet by likelihood that very canon was inserted in all or some of those eight more ancient compilations of the canons authorized by some former popes ; ( which is the more probable , because we find it also in burchard ) and so it might be , long before sufficient ground of this extrinsecal jurisdiction in the ordinary ; but i sought here for authority more than i durst be bold in conjectures , which i leave to every mans judgement . part ii. of the disposition or administration of intestates goods . chap. i. in whom it was in the time of the saxons . in the saxons time it was in the lord of him that dyed ( understand the chief lord ) in case the intestate were a tenant , and dyed at home in peace : but in case he were no tenant , or dyed in his lords army , then it was ( it seems ) as other inheritance under the jurisdiction of that temporal court within whose territory the goods were : this may be proved out of the laws of that time , which ordain , that upon the death of an intestate , whom they call cwiale awe , the lord (a) is only to have the heriotts due to him , which are also appointed by (b) the laws of the same time , that by his ( the lords ) advice or judgement his ( the intestates ) goods be divided among his wife and children and the next of kin , according as to every one of them of right belongs , that is , according to the nearness of kindred , if no children or nephews from them be ; for it must , i suppose , be understood , that the succession was such , that the children excluded all their kindred , and of their kindred the next succeeded , according to that in tacitus (c) of his germans , whose customs were doubtless mixt with our english saxons , haeredes , sayes he , successoresque sint cuique liberi , & nullum testamentum . but it seems , christianity afterward brought in the free power of making testaments amongst them , si liberi non sunt , proximus gradus in possessione fratres , patrui , avunculi . but this is exprest only in case the tenant dyed at home and in peace ; for if he dyed in his (d) lords army , both the heriott was forgiven , and the inheritance both of goods and lands was to be divided as it ought , which was , it seems , by the jurisdiction of the temporal court within whose territory the death or goods were ; for in that case , it is not said , that the lords judgement was to be used , but that the heirs should divide all ; or , as the words in the confessor's law are , habeant (e) h●redes ejus pecuniam & terram ejus sine aliqua diminutione , & recte dividant interse ; where the right of the heir both to lands and goods is expresly designed , but the judge that should give it them , not mentioned . therefore it seems , it remained as other parts of the common law , under the temporal jurisdiction , as by the (f) civil law it is under the pretors . chap. ii. in whom after the normans until king john's time . until king john's time it seems the jurisdiction over intestates goods , was as of other inheritance also , in the temporal courts : yet no sufficient testimony is found to prove it expresly ; only when the common laws of those times speak of intestates , they determine the succession by like division as those of the saxon times . in laws attributed to william the first we read , a si home morust sans devise , si departent les infants l'erite inter sei per ovell . and afterwards in h. . (b) laws , si quis baronum vel hominum meorum praeventus vel armis vel infirmitate pecuniam suam nec dederit , nec dare disposuerit , uxor sua , sive liberi , aut parentes , & legitimi homines sui pro anima ejus eam dividant , sicut eis melius visum fuerit . here is the first mention , as i remember , of any thing occurring in our laws or histories , of the disposition of the intestates goods , pro anima ejus , which indeed might have been fitly subjected to the view at least of the church . but no mention as yet being of any ecclesiastical power that tends that way , i rather think that heretofore no use or practice was of administration committed , direction given , or medling with the goods by the ordinaries ; but all was by the friends or kindred juxta consilium discretorum virorum , as the words are in (c) the statutes made for such as should dye in the holy war with richard the first . neither doth that of glanvill , which was written under h. . tell us of any thing of the ordinaries power in this case , although it hath express mention of testaments , and the churches jurisdiction of them . indeed we there find , that if no executor be named , then (d) possunt propinqui & consanguinei testatoris , take upon them the executorship , and sue in the kings court against such as hinder the due payment of legacies ; which also agrees well enough with that before cited out of the laws of h. . neither is there in gualter mapes his apocalypsis ( being a bitter satyr against the abuses of the spiritual courts in henry the seconds time ) nor in john of salisbury's epistles , that have many particulars of the exercised jurisdiction of the church , any thing occurring , that touches upon any ecclesiastical powers of this nature . chap. iii. in whom after the time of king john. but in that charter of liberties both for the church and laity made to the baronage of england in the seventeenth of king john (a) in reningmead an express ordinance is , that if any free-man dyed intestate , his chattels were to be disposed of by the hands of his next of kin , by the view of the church , that is , direction and advice being thereto given by the ordinary , as i understand , saving to all creditors their debts : the words of it were , si aliquis liber homo intestatus decesserit , catalla sua per manus propinquorum , parentum , & amicorum suorum , per visum ecclesiae distribuantur ; salvis unicuique debitis , quae defunctùs eis debebat . that charter of king john is almost the same syllables with the common one that we now use by the name of the grand charter of h. . exemplified by the kings patent of e. . but this of intestates , and two or three other chapters for the subjects liberty , are more in that of king john's , than is found in the exemplification of e. . however matthew paris and roger of wendover when they speak of h. . granting it , so refer their readers to this of king john , that they tell us , that that of h. . was the self same in every particular ; and therefore omit the repetition of it . and indeed , although in the common printed magna charta of h. . and in the roll also of ed. . in the tower , where the exemplification is , this ordinance touching intestates be wanting , yet in very many of the ancientest manuscripts of the old statutes , that of h. . hath the same words as we have here transcribed it from king john's , and that in the same place of his charter as that in king john's ; that is , between the eighteenth chapter , si quis teneus , &c. and the nineteenth , nullus constabularius , &c. and it is to be understood , that the greatest prelates of the clergy of that time , as canterbury , london , winchester , pandulphus the popes nuncto , the master of the temple , and divers other bishops were on the kings part , when that of king john was granted . and it is probable enough , that when they saw that a charter of liberties must of necessity be granted to the baronage , they so wrought also , that they might insert this one for the advantage of their episcopal government . and they had good colour to think and perswade , that some such thing was fit for them , in regard it was now clearly taken , that some distribution was to be made pro anima intestati , the care of souls being the chiefest part of their common pretences for increase of their power and greatness . and hence i suppose , it soon came to pass , that the next of kin had the power of disposition committed by the ordinaries , and that in letters or otherwise by vertue of that per visum ecclesiae , which was , i think , the textual ground of right of committing of administration by the clergy : this of king john's being iterated in henry the thirds charter ( however omitted in the exemplification ) was it seems that provision spoken of in cardinal othobon's legatins , proinde super bonis ab intestato decedentium , (b) so are the words , provisionem quae olim à praelatis regni angliae cum approbatione regis & baronum dicitur emanasse , firmiter approbantes , districtius inhibemus ne prelati vel alii quicunque bona intestatorum quocunque modo recipiant , vel occupent contra provisionem praemissam . what provision is it more likely that this was , than that of the grand charter both of king john and h. . and the words à praelatis dicitur emanasse , justifies what we have conjectured of the purpose of the prelates , when they saw they could not but yield with the king , to an establishment of laws , by that charter , made indeed in a parliament of that age . the same i suppose that which is meant in the (c) constitution of arch-bishop stafford , where it is taken for granted , that the churches power of disposition of intestates goods pro salute animarum & in pios usus , was a thing consensu regio & magnatum regni angl. tanquam pro jure ecclesiasticáque libertate ab olim ordinatum , &c. where linwood modestly confesses , that he could not find in what kings time this ordinance was made . but johannes de athona , upon that of othobon , though he rightly call that provision , provisio parliamentalis : yet most ignorantly and ridiculously (d) tells us , that the provision there understood , is the statute of westminster , . cap. . cum post mortem , which he makes also to have i know not what reference to the statute of glocester . but this slipt from him either in a dream , or through the utmost neglect of those infallible characters of truth , that the denoting of times affords us , for that legatin of othobon was made in london in (e) h. . and at such time as that provision was yet extant in the magna charta , used by our lawyers . but the statutes of westminster the second , and of glocester were under e. . the one in the sixth , the other in the thirteenth of him ; how then could othobon think of it in his legatin , or could john de athona have thought so , if he had allowed the title of his gloss , which supposes in the point , that the constitutions of othobon were published in the year . which had it been in . had agreed with truth ; but doubtless the numeral letters of mcclxviii were transposed into mccxlviii . and thence only that error . chap. iv. how that so granted by king john's charter in parliament hath continued in practice . after that law of the seventeenth of k. john , it seems the next of kin disposed of intestates goods by the testimony and direction of the church ; for so per visum denotes , as we see in per visum proborum & legalium hominum in writs of summons and the like : but i have not seen any practice of it testified in king john's time . and under h. . however it were omitted in his charter at the exemplification , the same visus ecclesiae continued ; so sayes bracton that then lived , and was a judge of that time , si (a) liber homo intestatus & subito decesserit , dominus suus nil intromittat de bonis defuncti , nisi de hoc tantum , quod ad ipsum pertineret , ( sc. quod habeat suum heriott . ) sed ad ecclesiam & amicos pertinebit executio bonorum . yet it seems also , that notwithstanding the right of the church thus ordained , and the succession of next of kin so included in the ordinance , both the lords in some places , according to their former right , still usurp some power over the disposition of intestates goods , against the will of the ordinaries : and on the other side also , the ordinaries , instead of giving direction for a true disposition of such goods , get possession of them , and commit them often , or at , least too great a part of them , to the use either of themselves , or of the church , and so defrauded those to whom by the right of natural succession they pertained . for that of the lords , bracton his noting it as a thing denyed them , compared with what we find among articles granted in the synod of london held under boniface arch-bishop of canterbury in h. . proves it , idem quod mortuo ( so is the (b) article ) laico sine testamento non capiantur bona ipsius in manus dominorum . sed inde solvantur debita ipsius , & residua in usus filiorum suorum , & proximorum indigentium pro salute animae defuncti in pios usus per ordinarios committantur , nisi quatenus fuerit domino suo obligatus . here we see by the way plainly that the distribution in pios usus , was the devising them among the next of kin , according to their nearness and want ; not an imploying them to other uses , at the ordinaries arbitrary disposition . but also that the ordinary did in this age sometimes usurp the goods of intestates against the next of kin , is enough proved out of that legatine constitution of othobon , cum mortis incerta , &c. where it was ordained as you see before ; so in the words of it , that they should not dispose of them otherwise than according as that grant was in the grand charter ; that is , to the benefit of the next of blood : but the ordinaries had about this time , against the intent of that charter , so abused the right of succession , that it was related (c) for a constant truth , that the custome in britania was , that tertiae pars bonorum decedentium ab intestato in opus ecclesiae & pauperum dispensanda , &c. as innocent the fourth his words are , who lived and wrote in the time of h. . what other ground than the ordinaries ill dealing with the next of blood was for that tertia pars i conceive not ; unless the pope had some such other testimony touching it , as we find in an old manuscript volume titled (d) statuta synodorum written in an hand of near seven hundred years since , being a collection out of the fathers and old councils , made as it seems by some britain or irish-man , as we have elsewhere conjectured . in that statuta synodorum occurrs orig. in lib. de haeredibus : pater moriens det tertiam partem filiis , & tertiam caesari , & tertiam ecclesiae ; si non habuerit ecclesiam , det pauperibus , & si non habuerit caesarem nec ecclesiam , dividat inter filios & pauperes . but what author this is cited out of , i am equally ignorant , as i know not at all who was the author of the whole collection , or whence he had many other of his authorities . and other things that volume hath out of some old synod of ireland , which makes to our present purpose , if the canons of that synod had been at all binding in this state. and it was no such wonder , that some such practice might be under h. . for since also in the time of e. . the church so usurped in their jurisdiction of probates , that they made the executors wait on their officials at uncertain and remote places , and then also put them , at times , to the ransom of the fourth or fifth part of the testators goods , before they would give them probate ; which was complained (e) of in parliament amongst the grievances of the commons . chap. v. of that of bona intestatorum in manus domini regis capi solebant . for that of bona intestatorum in manus domini regis capi solebant , for which is cited (a) the close roll of h. . rot. . it is also most true , if rightly apprehended . all that appears in the record is , that the king wrote to the sheriff of lincoln , that constat nobis per inquisitionem nobis missam sub sigillo stephani de segrave , & aliorum proborum & legalium hominum , quod richardus filius dunae non obiit intestatus , and therefore he commands , that the sheriff should deliver all the goods of the said fitz-dune in manus nostras capta , to the prior of loketon , and others his executors , ad faciendum testamentum : neither are there any words that tell us of any capi solebant , or that these were taken in regard of dying intestate only . indeed it appears not sufficiently in the writ , why they were taken ; but it is most probable , that the seisure was for some debt due to the crown from the intestate , which afterward not appearing , or being satisfied , or it appearing that the executors by the taking upon them the execution of the testament , would subject themselves to the payment of it , it was fit enough to amove the kings hands , and deliver all over to the executors : he that well considers the statute of magna charta cap. . si quis tenens , and compares it with that of bracton , where he tells us , that the law was clear , that if any man dyed indebted to the king , the sheriff might (b) imbreviare , & attachiare cattalla defuncti , will soon see the probability of this , howsoever the words of the statute are only of the kings tenants : and it concludes also , as if it were only in case of the death of a testator in regard of relinquatur executoribus ad faciendum testamentum defuncti ; but plainly , that ad faciendum , &c. hath equal reference to the intestates as to testators : for no name of an administrator being then usually known , all were called executors that medled with the intestates goods ; and those executors were executores qui faciebant testamentum , that is , which instead of the intestate (c) did take such order after his death with his goods , as they thought he would have done if he had made a testament ; which may be conceived also out of the use remembred in that time , wherein sick men being unable , neither having time to express their meaning , chose out some friends that might be super (d) hoc expressores & executores ; which friends appointing of legacies ( as if the intestate had given them ) and making disposition of intestates goods , were as testaments of those intestates ; and they did truly as executors facere testamentum defuncti , in which sense it might be spoken of any executors or administrators that intermedled in those times . and many writs occurr in the close roll of king john and h. . that have expresly in them the amoving of the kings hands from the goods of the dead , when the seisure had been only for the debts to the crown , according to the statute of magna charta ( which in substance is the law at this day ) and bracton , by reason whereof , i see not cause enough , why we should understand that of h. . to prove any such thing , as a custom of the kings disposing or seising of the intestates goods , especially in regard that in the passages of the law , lawyers and records of that time , no mention is of any thing that affirms it to be a custom , or touches it as a common use . but admit that in fitz-dunes case it had been so , that the taking of the goods into the kings hand , had been because of his dying intestate only . it may therefore be accounted rather as a particular of the irregular practice of that time , than any example to prove a custom ; and whosoever is but acquainted with the course of the records of king john and henry the third his time , must soon see writs enough that agree not so much as with any setled course of law , but taste rather of some sudden or arbitrary course of granting them . indeed some two years before that of fitz-dune , there is an example in bedfordshire , that might seem more fully to prove what is collected out of the other : the writ is thus , rex (e) vicecom . bedford salutem . praecipimus tibi quod blada & catalla quae fuerunt roberti de insula & rossiae uxoris ejus defunct . in wahall & brokeberge arestari facias & salvo custodiri , donec discussum fuerit in curia nostra ad quem catalla illa pertinent , & aliud inde praecipimus ; but this is often enough seconded with other examples that have for the most part a mention of the defuncts debts to the crown , that it cannot otherwise be understood , but either as founded upon that law of seising upon the goods for debt to the crown by prerogative , or as an example ( amongst many of other kinds ) that discovers a more arbitrary course sometimes in proceeding , than later time hath permitted . and according to one of those wayes ( but the first that is upon the statute of the grand charter is the fittest and most probable ) must that also be interpreted , where (f) h. . sends a writ to the sheriff of rutland to command him , that notwithstanding that robert de weston a parishioner of weston were drowned , and dyed intestate , he should yet facere willielmo de s. lando ( that is , to the parson of the parish ) habere nomine ecclesiae suae id quod ad eum pertinet , habendum de catallis quae fuerunt praedicti roberti , secundum consuetudines partium illarum : that was for the mortuarie , which properly and under that name then was determinable in the spiritual court. but surely we must conclude , that if there were any such practice by the officers of the crown in the time of hen. . to seise intestates goods generally , it was not so much the law of the time ; for if so , the records could not be but as full of examples of it , as the time was of the death of intestates , which questionless were very many ; but some such temporary usurpation , as in h. . pope innocent the fourth here had for a while executed by his ministers the franciscans and dominicans , in not only getting into his own hands , but also to his own use , all the goods of the clergy-men that dyed intestate through england , which as matthew paris that then lived , relates it , (g) cum audisset dominus rex , detestans romanae curiae augmentosam & multiplicem avaritiam , hoc fieri prohibuit , comperiens illud ad damnum regni & suum redundare praejudicium . afterward in the time of edw. . it appears by the statute of westm. . cap. . cum post mortem , &c. that the goods of intestates did come ad ordinarios disponend● ; which agrees with that of bracton before cited , and iterated in the same syllables in fleta (h) which was written under e. . and the disposi●ion of intestates goods was enquired after in those dayes (i) an ongst articles of ecclesiastical jurisdiction . and afterwards by the statute of e. . the ordinary was compelled to commit the administration of intestates goods to the next of kin : after which statute the name of administrator was common as their office ; and by that name such to whom the ordinary committed were sued , although before that time they were suable by the name of executors , and perhaps also by the name of administrators : (k) but that name is scarce found ( as i think not at all ) given a defendant to an action brought before seven years after the statute of e. . and in the parliament rolls of ed. . the administrators are designed only by the ceux quesont per l' evesque ordines en lieu des executors , where a petition is offered (l) by the commons , that such might have the like actions as their intestates : but the king answers , quant à ceux qui devient intestate le roy voet que l' evesque eit action en tien case depuis que il doit responder as autres . but from that of e. . saving only the alteration by h. . the law hath continued uniformly to this day . finis . notes, typically marginal, from the original text notes for div a -e senec. controv . lucret. l. . eno. annal. l. . plutar. de audiènde . plutar. lib. orac . pyt● . marcian . heracleot . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . philip. honor . thes. politic . lat. & ital. machiavell in principe & comment . ad liv. l. . c. . & . cujacius . al●er . gentil . l. . c. . de jure bell . h. cardan . in ptolem. l. . judic . astron . text . . stat. . silv. claudian . in laud. serenae uxor . stilic . l. . sect. . omnia . c. de vet . jur . en●cl . virg. aen. . lucret. l. . de rer . nat . virg. l. . aeneid . aristoph . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . hegesand . delphus ap . athen. dipnos . . horat. carm. . od. . plin. epist. ad nat. hist. senec. praef . ad controver . ovid. fast. . notes for div a -e ptol. . geogr. & . quadrip . & pausan. l. . jornand . de reb . goth. c. . steph. ad laert. aug. de civ . dei , l. . c. . laert. lib. . soph. in oedip . in colon. plut. in lib. de exilio . nat. comes , mythol . l. . c. . plut. de iside & osiride . odyss . . exod. . psal. . paral. . munst. ad gen. c. . plut. de serâ dei vindictâ . camden . senec. epist. . gen. . bodin . l. . daemononian . forcat . l. . de gall. imp. serv. ad . aeneid . norden in brit. specul . senec. nat. quaest . l. c. athen. dipnos . l. . jos. scal. in elench . orat. chroa . d. par. trithem . lib. de secundis . ovid. . fast. heuter . de vet. belgio . l. . c. ● . ovid. metam . . herodot . in euterpe . stat. hen. ● . c. . justin hist. l. . arist. . eth. ff . de orig. jur . l. . metam . . & lucr. l. . cum poetarum turba . august . de civ . dei l. . c. . hom. iliad . . senec. ep . . plut. de isid. & osirid . joseph . adv . app. l. . plut. in lib. de homero . plut. lib. de musicâ . plato in minoc . sol. polyhist . cap. . eunap . in vit . porphyr . plin. nat . hist. l. . c. . gorop . in gal. paul. merula , in cosmogr . part . . lib. . num. . . ezra . . strab. geogr. lib. . caes. de bello gall. l. . vulcan . in app . ad jornand . goth. munst. cosm. l. . caes. bell . gal. l. . flotoman . c. . franco-galliae . caes. bell . gal. l. . lips. elect. lib. . cap. . & quaest . epistolic . l. . c. . plin. nat . hist. l. . c. . plut. de orac . def . herod . euterp . eustath . ad . iliad . senec. in apocol . plin. l. . c. . br. tuin . apolog . antiq . academ . oxon. l. . §. . reuch . l. . de arte cabalist . lips. stoic . physiolog l. . dissert . . & vide forcatulum l. . de gall. imperio . laert. l. . & plut. orat . de esu carnium . senec. epist. . clem. l. . strom. apud p. merulam in cosmogr . part . lib. . camden . bodin . de repub . l. . c. . in praesat . ad l. . relat. liv. lib. . plut. de virtut . musicr . aug. de civ . d●i l. . c. . athenaeus . paul. aemil. hist. franc. l. . ovid. de arte amandi l. . tac. in vit . agric . & annal. l. . eurip. in medeâ . bodin . de repub . l. . c. . pomp. mela , l. . c. . gorop . in francicis . malmesb. gest . reg . l. . c. . connub. tam. & is●s . plato de rep . lib. . arist. polit. l. . c. ult . trismegist . solin . polyhist . cap. . v. plut. quaest . centuriat . rom. . br. tuin . apolog . oxon. l. . §. . v. plut. sympos . l. . c. . laert. l. . plut. symp . l. . c. . georgic . . athen. dipnos . l. . & . suid. in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . euseb. praepar . evang. l. . apud abrah . ortel . in theat . mundi . munster . boëmus , &c. theocr. eidyll . . plaut . cur●● id. amphitr . id. casinâ . plut. de aud . poet. ovid. de art . am . l. . bald. l. . consil . . alber. gentil . de nupt . l. . c. . ovid. amor . l. . eleg . . id. l. . eleg . . id. de remed . amor . l. . virg. in ceiri . malmesb. de . gest . reg . l. . c. . dio hist. rom. l. . senec. in octav. act . tac. annal . l. . dio hist. l. . camden . & lips. ad l. . tac. num . . agell . l. . c. . camden . colonia castri , whence the river called coln . senec. ad alb. c. . lips. de mag . rom. l. . c. . gild. in epist. de excid . brit. notitia provinc . tacit. vit . agric. juvenal . sat. . plati● . in vit . eleutherii . ovid. fast. l. . jo. fox hist. eccles. l. . zofim . l. . notit . provinc . utr . imper. l. . comm . c. . & l. . comm . pancir . c. . ja. douz . annal . holland . l. . & . procop. bell . goth. l. . aethelwerd . lib. . fo . . adam brem . hist. eccles . brem . & hamburg . c. . ex bibliotheca henr. ranzovii . nithard . l. . munst. cosmog . l. . plut. in sympos . plaut . in aulul . act . . martial . l. . epig. . callimach . epig. . plaut . in asinar . anacreon . carm . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . et tacit. caes. de bell . gall. l. . senec. de benefic . l. . c. . proverb . . juvenal . sac. canut . legi can . . theognis . odyss . . . in allegoriis homeric . martial . l. . epig. . bracton . de coronâ l. . c. . an. ed. . fol. . à briton . cap. . ovid. metamor . l. . matth. paris in h. . pag. . vid. l. . art . . aluted . leg . can . . dion . halic . lib. . flor. hist. rom. l. . c. . lamprid. v. bodin . de rep . l. . c. . & franc. hotom . disp . feud . cap. . bed. hist. eccles . l. . c. . fest. verbo pecul . & verbo ovibus . v. inae leg . cap. . malmsb. de gest . pontif. l. . ranulph . higden in polychron . joan. carnotens●s de nugis curial . l. . c. . caxt. cap. ▪ rotulus wintoniae . hist. cantuariensis . canut . leg . . leg. fdw. confess . cap. . bract. de coronâ , l. . c. . pont. heut . de vet . belg. l. . c. . jul. pollux . l. . c. . . edw. iii. itin. north. tit . coron . . edw. . itin. cant. * perhaps it should be tincham . bract. lib. . de coronâ c. . an. . ed. . alured . rhivallens . ap . tuin . apol. ant . oxon. l. . §. . dionysius . aeneus . malmsb. lib. . de pontif. & de gest . reg. . bract. lib. . de coron . cap. . ingulphus . joh. pris. defens . hist. brit. camdenus è sarisburiensi . c. de donat . inter virum & uxorem . l. . in epist. ad l. . relat. anno dom. . ingulph . matth. paris hist. major . pag. . ingulph . ralph holinshed in hen. . chart. archiep . cant. see the charter of edw. conf. in english rhyme , camden in essex . ingulph . ingulph . * the saint , to whom the monastery was dedicated . notes for div a -e gerv. tilb. de scacc . cap. . camden . guil. le rouille alencon . claudian . in . cons. honorii . dooms-day . horat. art . poetic . leland . matth. cantu . in antiq. eccles . britan. tuin . apol . an t oxon. lib. . §. . camden in ord. angl. macrob. saturn . lib. . cap. . vopisc . in aurel. lips. ad . annal. tacit. num . . ingulph . m●lmsb . lib. . cap. . a. ch. . guil. mapaeus . camden . lib. feud . . tit . . stat. ed. . cap. . matth. paris . polydorus . coverfeu . alberic . gentil . de jure bell . lib. . c. . august . de civ . dei. l. . c. . pausan. atticis . terms . justices of peace . a. m. . in bot. chart . rich. . pro decan . & capit . eccles. lincoln . leg. edgar . cap. . petron. arbit . basil. concil . sess . . duaren . de benef. l. . c. . vid. platin. in joh. . vitâ . canut . leg . cap. . & ed. confess . bracton . lib. . cap. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in novell . lev. . hotoman . in verbo feudal . beleu . carol. sigon . de reg . ital. lib. . v. hotom . comm . ad . lib. feud . mariana hist. hispan . lib. . cap. . canut . cap. rich. . tit . testament . . lind provin . constit . de testam . c. stae●urum . & de immun . eccles. c. accidit , verb. abolim . glanvil . l. . c. ● . c. de testam . l. consulta divalia . hotom . feud . hauber●ic . in diction . morus in utopiâ , l. . de mirac . thom. ap . fox hist. eccles . lib. . guli . gemetic . de ducib . norm . lib. . cap. . fest. latro. heb. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 latro à 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 latus . bodin . de rep . l. . c. . dist. . c. . ff . ad leg . corn. de sicar . l. . §. ult . bract. lib. . tract . . c. . & stams . plac . coron . l. . c. . stow , & v. malmesb. l. . de gest . reg . fol. . spec. just. cap. des articles , &c. lamb. itinerar . cant. west . . c. . pat. ed. . ovid. art. am. lib. . v. leg. athelstan . . bellarm. l. . de rom. poutif . c. . polycrat . l. . c. . rot. parl. rich. . camden . a. . metamor . l. . v. rog. hoveden . fol. . coke praesat . ad lib. . assi● . pl. . & . ed. . ti● . barr. ● . annal. hiber . . sub henr. . malmsb. l. . de gest . reg . c. . & ingulph . fol. . malmsb. l. . de gest . pont. caes. germ. ad arat. in aquario . pindar . olym. . lips. poliorcet . lib. . dissert . . chauc . in prolog . of the sumners tale . pet. blesens . app . ad ingulph . c. de poeni● . l. . sancimus . v. canut . leg . . fox . in hist. eccels . ed. . rescript . dat . . ral. maii ap . veterem urbem , pontificat . . caes. comm . l. . ath. dipn. l. . feud . l. . tit . . otho fris. lib. de frederic . . radevic . l. . c. . bract. l. . de essoniis , c. . & ed. . fo . . a. ed. . fol. . . v. ed. . tit . attaint . . ● ed. . tit . challenge . . plo. com . fol. . h. . fol. . bract. tract . de coron . l. . glanv . l. . c. . polydor. hist. l. . matth. park . in vit . rob. archiep. cant. malmesb. l. . de gest . pontif . lact. instit. l. . de divi● . praem . c. . hoveden . annal . l. . coel. rhod. antiq . sect . l. . c. . sophocles in antigone . arist. ▪ de coelo . iliad . . deut. . zanch. de nat . dei , l. . c. . reuchl . de verb. mirif . l. . c. . psalm . hebr. . . aeneid . . anthol . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . epigr. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . polyhist . l. . c. . ovid. fast. . senec. ep. . mart. del rio disq mag . l. . sect . . & . ovid. fast. . pic. mirandula in heptaplo . pindar . olymp. . vitâ roberti . decret . tit . de vulgar . purgat . caus . . quaest . . bract. l. . tract . . c. . & canuti leges . matth. paris . v. britton . cap. d' appeales , and temp . ed. . tit . quod permittat . . temp. ed. . tit . attorney , . polyd. hist. angl. . tuin . com. de reb . albion . dav. pouel . in epist. guli . fléetwode . caes. l. . de bell . gall. paul. merula . ingulph . camden . polyd. hist. angl. l. . mod. ten . parl. jo. caius antiq . cantabrig . l. . v. ed. . fol. . august . de civ . dei , l. . c. . ethelwerd . l. . c. . hist. eliens . camd. in northampt. v. kel . relat . hen. . fol. . stat. rich. . c. matth. paris , pag. . brook tit . prerogative . . fr. thin . in contin . chr. eliz. matth. cant. in odonis severi vitâ . camden . huntingd. hist. l. . camden . leg. edw. . & canut . . leg. edgar . cap. . synod . antioch . c. ● . dist. . c. . malmesb. de gest . reg . l. . ad leg . . de origin . jur . roger de hoveden in h. . notes for div a -e lucan . notes for div a -e v. sr. w. raleigh fol. . beros . antiq . chald. lib. . & ad cum annius de viterbo . diog. laert. in vita philosop . lib. . & vide basingstocke hist. lib. . flor. hist. aetat . . hist. pag. . georgic . . senec. epist. . herodot . l. . officium erat imperar● , non regnum , seneca . plat. in minoc . iliad 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 & saepius alibi . joseph . contra appion . lib. . plutarch . in lib. de homero . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . & hesiod . in theolog. aeneid . . & . summa foelicitas erat gentium in quibus non poterat potentior esse nisi melior . senec. epist. . l. . ff . orig . juris . ranulph . cestren . in polychronico . galfred . monumeth . lib. . cap. . & matth. westmonast . fo . . camden in rom. in brit. * v. spelmans gloss. del ley molmutii , tit . lex . . galfred . monumeth . lib. . cap. . & flor. histor . pag. . camden in append . ad . cornavios . notes for div a -e caes. de bello gall. lib. . & strabo , lib. . geograph . l. . ff . de orig. juris . juxta item lex civilis & canonica . extra de except . c. except ( de sacrosanct . eccles . ) li. placet . strabo , lib. . geograph . caesar de bell . gall. lib. . hotoman in francog . cap. . absolvent te lectori si consulas , aldus manutius ad lib. . caesaris , hotomannus in franciogalía , paulus merula in cosmogr . part . . lib. . cap. . & de caeteris , quae hic ad caesarem , juffus lipsius in comm. ad tacit. hist. lib. . sect . . & in quaest . epistolic . lib. . cap. elect. lib. cap. . caesar de bell. gall. lib. . in prim. incol . bodin . lib. de rep . ca. . just. instit . tit . de patriâ potestate . inde wapentach . liv. lib. . plutarch . lib. de virtut . mul. women's rule . tacit. in vitâ jul. agricolae & vide aristot. polit. lib. . cap. . caesar , lib. . de bell . gall . money . cambd. . timon apud athen. lib. . & . dipnosophist . dio cass. hist. rom. lib. . se●ec . in octa. act . . tacit. annal . lib. . dio cass. lib. . colonia haec victircensis dicta in antiqua inscript . apud lip. & camdenum . spens . in ruinis temporum . tacit. annal . lib. . camden in cornaviis , dovunis , brigantibus . agell . noct. attic. lib. . cap. . camden in brigantibus . lambard in archaenom . ovid. . fast. galfred . monumeth . lib. . cap. . notes for div a -e de germanis vid. plura apu● ca●sarem lib. . d● bell. gall. quae verò huc non proximè spectant . tacit. lib. de morib germ. vide leges ed. confess . ap . lamb. lips. in not . ad tacit. ibid. haec debemus virtutibus , ut non praesentes solum illas , sed etiam ablatas è conspectu colamus . senec . lib. . de benefic . ca. . vide epistolam bonifacii ad aethelbald . terre nient devisable . einhard ap . adam . bremens . in histo . eccles. cap. , & . bed. eccles. hist. lib. . cap. . malmesb. de gest . reg. lib. . cap. . gen. cap. . rotulus wintoniae . * al. absolutus . malmesb. lib. . de gest . reg . c. . athen. lib. . deipnoloph . stat. jac. cap. . ingulph . hist. pag. . & . feud . lib. . tit . chart. archiep . cant. vide etiam camden . in cantio pag. . & chartam aethelulphi super altare oblatam apud ingulph . pag. . in praefat. ad lib. . resp. notes for div a -e gervas . ti●b . de scac. ca. . conferas quae è guil. roville alenconiens . in tract . de duello transcript . cap . camden in divis. brit. hoveden . pag. . roger hoveden . in vit. h. . fo . . florent . wigorn. domesday . will. . gervas . tilb. cap. . rob. glocest. in hist. poet. matth. paris in guil. . pag. . camden . in norm . astipulatur matth. west . flor. hist. lib. . gervas . tilb. de scac. ca. . ingulph . hist. fo . . s● . e. . cap. . matth. paris . polydor. virg. hist. lib. . hen. hunting . lib. . hist. fol. . bract. lib. . tract . de coron . cap. ● . polydor. hist. lib. ● . lamb. explicat . verb. camden in norman d. ed. coke in p●aefat . ad lib. . notes for div a -e polydor. lib. . hist. matth. paris . malmesb. lib. . de gest . reg . notes for div a -e matth. paris , pag. . v. glanvil , lib. . cap. . lind. provinc . constit . de immunit . eccles. lib. . & de testament . statutum § ecclesiast . rich. . testam . . v. inf . in stephan . . c. tit . de testament . l. consulta divalia v. in johann . art . . v. hotoman . verb. feudal . hauberticum feudum . malmesb. lib. . de gest . reg . atque alibi antiquitus quod docent isocrates in oratione contra lochic . sen. epist. . lamprid . in alex. severo & alii , caeterum an in bonos motes , remque publicam . conducat , disputant : quin & ausi sunt negasle , frisius in lib. de rep. tho. morus , in utopiâ , &c. ex lib. monarch . cant. de m●rac . b. tho. apud foxum . in hist. eccles. lib. . fo . . malmesbur . guil. gemiticens . de ducibus norm . lib. . ca. . & contin . ad florent . wigorn . pag. . roger de hoved . annal . . fo . . malmesb. l. . math. westm. lib. . flor. hist. malmesb. l. . de gest . reg . mat. paris pag. . stovaeus annal . p. . flor. hist. l. . polyd. hist. lib. . halicarnass . . antiq . rom. & v. sueton. in caligula cap. . zas . in comm . ad lib. . f. de orig . turr. polyb. lib. . hist. ang. notes for div a -e malmesb. l. . hist. novell . guil. neubrigens . lib. . rer . anglic. cap. . huntingd. l. . hist. hoveden part . . f. . ibid. jo. salisburiens . polycrat . lib. . cap. . v. disceptationem de castellis episcoporum apud malmesbur . lib. . hist. novel . r. . rot. parliam . notes for div a -e guil. de novo burgo lib. . rer . anglic. cap. . matth. paris fol. . v. in johan . art . . vide verò rogerum hovedenum pag. . ex ms. vita thom. cantuar . robert glocest . hist. poet. reg. indic . fol. . fest. in verb. hemones . paul. merul. ad lib. . annal . ennli . pind. olymp. . lipsius lib. . poliorceticon chauc in prolog . and in the somners talc . matth. paris pag. . roger de hoved . annal . . fo . . matth. paris . hoveden part . . p. . quadripartitam etiam regni ad hunc modum sub eodem principe habes divisionem apud eundem , fo . . v. camden in ord. angl. pag. . quicum conferas feud . lib. . tit . . & . quin & malmesb . hist. nov. lib. . fol. . l. . solidatus , &c. reg. brev. judic . fo . . in hab. fac . vis . ranulph de glanv . lib. ● . ca. . bract. lib. . de acq . rer . dom . cap. . sect . . v. camden in ordin . angl. casum item nevillae in libr. . relat. d. e. coke huc refer . matth. paris pag. . rog. de hoved . part . . f. . notes for div a -e roger de hoveden , par . . fo . . leg. ed. confess . cap. . vide guil. de novo burgo rer. angl. lib . cap. . guil. neubrig . lib. . cap. . matth. paris . post hovedenum pag. . lib. rub. scace . roger de hoveden , pag. , & . matth. paris , pag. . hoveden part . f. . tempore e. . tit avowry ● . & reg. orig . so . . a. ●o . li. . avowry . . li. . fo . . b. hoveden part . fo . . * al. renovationem . notes for div a -e roger de hoveden pag. . matth. paris pag. . idem pag. & . hen. . idem pag. ● . camden in agro middlesex . matth. paris pag. . & seqq . v. stat . west . . cap. . art . cler . ca. . de election . merton cap. . confer . . li. . fo . . plo. com. fo . . bract. lib. . cap. . sect . . & indicem ad plo. comm. part . walsing . hist. e. . v. in h. . art . . in bibliotheca d. ro. cotton à connington eq. aurati . stat. annal. pag. . notes for div a -e (a) ff . test. quemadmodum aperiant . per tot . et vide etiam auth. . c. . sit igitur licentia . (b) de episc. l. . & tit . de testam . l. . & . & caput theodos . li. . tit . . l. . ubi visendus interpres vetus . (c) authent . . & ibid. cujacius , & videsis gloss. graeco-barb . ●eursii in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . (d) novel . formulas vet . testam . aperiendorum , videsis i. paul regest . senrent . l. . tit . . & marculph . formul . l. . c. . & . (e) c. de episc. & c●er . l. . repetita . (f) hostiens . in prooem . sum . & vetustio●es canonist . passim . (a) cap. . (b) dist. de secular . negotiis , cap. . (c) ad c. nos quidem extra tit . de testament . (d) tit. de instrum . edit . s. ostens . . vid. d. d. ad c. nos quidem , &c. si haeredes extra tit . de test . & linwood de test . c. item s. infin . & cap. stat . s. approb . (e) r. . test. . h. . fo . . b. (f) quod discimus ex bullarii summa quam edidit s. guaranta . (a) c. de episc. & cler. l. . nulli , & l. . si quis ad declinand . authentic . . c. . & vid. c. . (b) ff . de petit. haered . & tit . de legat . (a) extr. de test . c. . (b) lib. . c. . (c) videsis greg. lib. . epist. . & lib. . epist. . (d) vid. gonzal . zuarez prax. eccles. lam. . praelud . . sect. . & zerula prop. episcop . verb. leg . ad quaest . . (e) sess. . de reform . cap. . & sess. ult . de reformat . c. . (a) lamb. peramb . cant. p. . (b) hensloes c●se . rep. b. (c) in bibliothec. cottoniana . in lib. concessisset . (d) v. spicilegia in eadmerum . (e) lib. . cap. . & . (f) ed. . . a. ed. . . a. perk. . h. . . (g) ita jo. salisburgensis de nugis curial . lib. . cap. . & . (h) regiam majestar . lib. . cap. . (i) jo. sarisburg . epist. . (k) epist. . (l) barth . ad tit . de summa tr. l. . num . . r. . tit . testam . . tit. de test. c. stat . verb. ecclesiae libert . (a) cod. ms. hosp. s. leonardi in biblioth . cottoniam . hensloes case apud v. cl . ed. cook par . . fo . , , . that in france probates are in the spiritual courts . (c) choppin . de dom. franciae lib. . pag. . edit . . & videsis restam . leolodi abbatis floriani helgundi initio . (a) patent . . reg. johan . membr . . (b) rot. claus. joh. membr . . (c) claus. h. . part . . m. . & . (d) claus. h. . part . ● . membran . . idem . id ipsum est quod habetur in commentario . v. c. ed. cooke , f. . . sumptum est . (a) cap. . magn . char. quam etiam donavit johannes rex , uti videre est apud matth. paris . (b) h. . tit . prohib . . h. . ibidem . . h. . ibid. . h. . ibid. . (c) mich. & h. . rot. . &c. & h. . coram w. de raleigh , &c. rot. . in arce londinensi . (d) lib. . tract . de exceptionibus , cap. . pag. . b. (e) idem fo . . (f) register . orig. fo . . ( b ) &c. (g) fleta lib. . cap. . sect. executor . (h) ad tit . de testam . c. statut. verb. ecclesiast . libertat . (i) de episc. & cler. & nulli . & siquis ad designandum , , &c. (k) cod. de lib. natur. l. . matr. & author . , &c. notes for div a -e (a) canuti . leg . cap. . (b) ejusdem leg . cap. . (c) de moribus germanorum . (d) canut . legibus , cap. . (e) leg. ed. confess . cap. de heretochiis . (f) f. s. instit. de bonorum possessione . a adjiciuntur ingulph● crolandensi ms. in bibliotheca cottoniana . (b) apud matth. paris . (c) will. novoburg . hist. l. . c. . (d) glanvill . li● . . cap . (a) reperiuntur seorsimsaepius exemplaria illius diplomatis & penes math. paris , rogerum wendover ms. & thom. rudburne ms. extant , sed in archivis non extant . v. manuscriptum nostr . de magn. charta , cap. . in fine . (b) cap. cum mortis incerta . (c) provinc . constitut . tit . de immunitate ecclesiae , c. accidit novitate . (d) jo. de athona ad legat. othobonum c. cum mortis incerta . (e) praeter annales obvios , linwood ad c. quia verb. octoboni , tit . de constitutionibus . (a) bracton . lib. . de acq . rer . dom . cap. . sect . . (b) in annal. burtonensis coenobii penes v. cl . thom. allen oxoniensem ms. a. . (c) innocent . . tit . de simionia , c. ad apostolicum . (d) ms in thesauro cottoniano c. . de divisione hareditatis . (e) parl. e. . cro. hill. art . . & consule si vis parl. octab . purif . e. . art . . in archiris . (a) hensloes case apud v. cl . ed. coke part . sect . , . (b) ●racton . lib. . de acq . rerum dom . cap. . sect . . (c) ita facere testamentum nomine defuncti sumitur apud canonici juris peritos . videsis zebulam prax . episcop . verb. legatum , sect . . (d) mos iste reperitur apud matth. paris , histor . major , pag. . ubi de pontificia constitutione de intestatis edit . londinens . (e) clauf . h. . par . . memb . . (f) claus. h. . memb . . (g) matth. paris , fo . . edit . londinens . (h) fleta l. . c. . (i) quod videre est in cro. wigorn. ecclesiae in biblioth . cott. sub initio e. . e. . fo . . a. (k) videsis e. . fo . . a. sed & plura in l. . vir. cl . e. cook par . . fo . . & par . . f. . & . & ed. . tit . covenant . . (l) quindena pasch. e. . artic. . the case of the lord jeffreys, and the lady charlotte, his wife, sole daughter and heir of philip earl of pembroke, deceased, in relation to a bill entituled, an act to set aside several amendments and alterations made in the records and writs of a fine and two recoveries in the grand sessions, held for the county of glamorgan. jeffreys of wem, john jeffreys, baron, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing c a estc r this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the case of the lord jeffreys, and the lady charlotte, his wife, sole daughter and heir of philip earl of pembroke, deceased, in relation to a bill entituled, an act to set aside several amendments and alterations made in the records and writs of a fine and two recoveries in the grand sessions, held for the county of glamorgan. jeffreys of wem, john jeffreys, baron, - . sheet ([ ] p.) s.n., [london? : ] imprint from wing cd-rom, . publication date according to lady day dating. docket title reads: the case of the lord jeffreys. to be heard at the bar of the house of lords on friday the th of february, . reproduction of original in the folger shakespeare library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng jeffreys of wem, charlotte jeffreys, -- baroness, or - -- early works to . jeffreys of wem, john jeffreys, -- baron, - -- early works to . estates (law) -- england -- early works to . inheritance and succession -- england -- early works to . land tenure -- england -- early works to . - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion the case of the lord jeffreys , and the lady charlotte , his wife , sole daughter and heir of philip , earl of pembroke deceased , in relation to a bill entituled , an act to set aside several amendments and alterations made in the records and writs of a fine and two recoveries in the grand sessions , held for the county of glamorgan . philip late earl of pembroke , being seized in tail male , with remainder over to the present earl , of several mannors and lands in the county of glamorgan , in consideration of a marriage to be had between him and henriette querovalle , and of l. portion , did by articles of that date , covenant with robert earl of sunderland , and sidney lord godolphin , to settle on her l. per annum , during her life , out of those mannors , in lieu of a joynture ; and entred into a statute of l. penalty to make good those articles . the marriage took effect , and the portion was paid ; and the late earl , to enable himself to make such settlement , employs mr. rider and mr. negus , his own servants , to get a fine and recovery , levied and suffered at the grand sessions held in glamorgan-shire in april . and accordingly commissions of dedimus potestatem were taken out , and directed to mr , herbert salladine , mr. francis negus , and others , as commissioners to take the earls acknowledgment of the fine , and warrant of attorney for the recovery ; which were by salladine and negus duly executed and return'd . that mr. rider coming to the grand sessions was informed , that there were several freehold leases on several parts of the estate , and that the recovery would not bar the entail of those lands , unless such freehold leases were first surrendred ; and therefore mr. rider agrees with the compounder for the king's silver , to pass the fine and recovery at that time for l. composition money ; which was also to be a satisfaction for a second fine and recovery , if any were esteemed necessary , for the tenements contained in such freehold leases : and in april . a fine and recovery of the estate passed , and a chirograph of the fine , and an exemplification of the recovery were brought to sir john king , in order to have the settlement drawn by him ; and by his direction and advice the freehold leases were surrendred , and a fine and a d. recovery duly suffered of those lands , at the grand sessions held in august after . and thereupon a chirograph of that fine , and an exemplification of that recovery were brought also and delivered to the said sir john king. that thereupon the earl by indenture , dat . . sep. , reciting both fines and recoveries to be duly levied and suffer'd , declar'd the uses thereof to himself and his heirs . and in pursuance of the said articles , and subsequent agreement secur'd to his countess a jointure of l. per annum , out of the said mannors and lands , of which the said fines and recoveries had pass'd . and upon the execution of the said fines and recoveries , and the said conveyances , the trustees of the countess delivered up the stat. of l. to the earl to be cancell'd . that in aug. . earl philip dyed without issue male , leaving only one daughter , viz. the lady charlotte now wife of the lord jeffreys ; to whom all the said mannors and premisses , of which the said fine and recovery were suffer'd , descended ; and by whom after the earl's death , the premisses were enjoy'd , subject to the said jointure of the countess of pembroke . that the records and writs relating to the fines and recoveries are so carelesly kept in the county of glamorgan ; that many of them are torn , defac'd , rotten , lost , or otherwise embezzelled , by the neglect and default of the officers in the courts there . in hil. ter. . tho. earl of pembroke , now lord privy seal ; hoping to take advantage of the misprision of the clerks in entring the said fines and recoveries , or of their negligence in keeping them , brought three several writs of error to reverse the first fine and both recoveries , which were return'd accordingly . that upon this occasion the countess being advised ; that the mistakes in the said fines and recoveries were amendable , and that upon a writ of error brought the court usually ordered amendments to be made , did , by the advice of her council , move the justices of the grand sessions of wales ; that the mistakes in the said fines and recoveries might be amended , and the several writs and parts of records , that were rotten , eaten by vermin or desac'd , might , as usually in like cases , be supply'd upon the testimony of living witnesses , who were concern'd in the said fine and recoveries . that upon this motion , the usual rule was made for amending and supplying the said writs , unless the earls council should at a time appointed show cause to the contrary . that upon hearing of council on both sides , and upon fight of many precedents of the like amendments in westminster-hall , and upon the opinion of many eminent council , and the oaths of several living witnesses , that commissions had issued , and were returned for the earls acknowledging the fine and recoveries , and that the usual writs and proceedings had been made in prosecuting and perfecting them , and that the records were kept in a confused manner , and in such places , that they were rotten , defac'd , or lost : and that whatever writ , or part of records was wanting , was rotten or eaten by vermin ; such of the defects , as were usually amendable , were by rule of court amended , or supplyed . since which proceedings the amended records are removed into the king's bench by certiorari , and by the rules of law the errors cannot be further proceeded in until the lady charlotte comes of age. the present earl hath now brought a bill in parliament , to set aside all these amendments by the legislative power , and to disenherit the heir at law. now forasmuch as these mistakes occasioned by the misprision or negligence of the clerk in making or keeping records have usually been amended and supplied . and forasmuch as many good laws have been made for the encouragement of amendments in the reigns of several of their majesties predecessors , which do yet stand in force . and forasmuch as a common recovery is favoured in law , more than any judgment or proceedings in any other real action : as being a common assurance made by the mutual consent of parties , and upon which most of the settlements in england , and the titles of purchasers do depend , and therefore hath been , and is usually amended and supported . and forasmuch as this precedent will be of fatal consequence to most of the estates in england , and more especially in wales , if the neglect , or misprision , or indirect acts of the clerks shall set aside all titles and settlements , contrary to the plain words of the deeds , and the testimony of many witnesses yet alive , and the known consent and meaning of the parties , without any relief , or amendment of those mistakes : and the rather since it cannot be denied , that the records in that county are kept in such place and manner , that there are no whole and entire proceedings in any fine or recovery , suffered and levied in the county of twenty years standing . it is therefore humbly pray'd , that this bill may not pass into an act. notes, typically marginal, from the original text notes for div a -e dec. .