〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉; OR, An Historical Discourse OF PARLIAMENTS in their original before the Conquest, and continuance since. Together with the Original growth, and continuance, of these Courts following, Viz. High Court of CHANCERY, UPPER BENCH, COMMON-PLEAS, EXCHEQUER, DUCHY, And other inferior Courts now in use in this Commonwealth. LONDON, Printed for Tho. Firby, near Grayes-Inne-Gate in Holborn. 1656. To the Reader THis treatise, though small, yet hath undertaken a subject of a very sublime nature to handle, the Author being unknown (by his person, though not for his pains) another hand hath presumed to insert a few marginal notes to it, with his authorities for what he sets down; if thou compare both together, thou wilt find that the notes and the text do help one another: when thou readest the book some of the notes will serve thee as an opened casement in windows, through which thou mayst see more distinctly that afar off which he doth see down without citing his Authorities; some others of them are as blinds upon windows (not to hinder thy light) but to direct and level thy eyes upwards towards Antiquity with more Infalability. But take not the Penman of the notes as one that hereby would detract any thing from the Author's worth (who ever he be) for it is easily seen by his Tract that he knew what he writ, and and we know that those who are no Novices in the Commonwealth of Learning upon perusal of this tract (though many of his authorities are not cited in the very pages) yet can judge of Hercules by his foot, and that this Author was of no ordinary stature in Antiquity. The notes than are to prevent such as are no great proficients in the school of the Ancients from saying, That the Authors ipse dixit is the warrant of some things he writ, and that it hath no other passable or current authority. If thou findest failings herein, I have but this to say to thee, Humanum est errare; and if thou be more than mere man, then let the Author and the World see thy perfect work that shall be subject to no error, and thereby thou wilt gratify mankind more than yet the World hath been Blessed with in any thing, except the Bible. But not to make the Porch bigger than the Church, I desire thee to be candid, and to read without prejudice. Farewell, J. S. An Historical Discourse of Parliaments and other Courts etc. AS without doubt ever since the first propagation of Mankind on the face of the earth; there were before the Deluge, Cain and cain's and proud Giants, and after the Food, Cham, Nimrod, Esau and such like mighty Hunters, and injurious Oppressors of the servants of God, so from time to time, God out of his paternal care and merciful providence, hath excited some of his own, endued and armed with Wisdom, Authority, and power, not only to preserve his little ones from the greedy and ravenous jaws of wicked persecutors, but also after a sort to resist their cruelty and chastise them for their excess and sury. For we read in Genesis that Adam; immediately after his Fall, had two sons (to wit) Abel and Cain, whom he taught in the knowledge of God; and Cain was a wicked person and slew his Brother, of which it grieved him not t●ll God had afflicted him with the fire and torment of his Conscience, and then he cried out Mayor est paena mea quam ut sustinere possim. Gen. 4.13. After Cain, succeeded Lamech (born in the house of Cham) who corrupted the institution of Marriage, by taking to his Wives Adah and Zilla. And besides them, many others lived impiously, even to the days of Noah, when all the Earth was corrupted; wherefore God destroyed all mankind with the rest of the Creatures from the face of the Earth, except Noah and those that were with him. Gen. 7.23. And again after that deluge, when the Earth was replenished with a multitude of people, and consequently contentions were become so numerous, that there was not found any one able to determine of their plaints and suits, nor place spacious enough to hear the suitors: then according to Jethroes counsel to Moses, the jurisdiction or charge of Administering Justice was divided among very many, and several places assigned for that especial purpose, that the people, as from so many Conduit-pipes, the aquam vitae the Law, that fountain wherein the life and liberty of the people is conserved, might receive. Wherefore the Israelites, that were the first people to whom any written law was given, were wont to pronounce their judgements in the gate of every City, that the plainness and indifferency of their proceed might appear; so that none might need to go out of the right way to seek for justice, and of purpose to show, that judgement was a divine thing; then afterwards in Curia & Foro the Athemians also in their temple called (by reason of a special judgement) Areopagus, and in the place called Palladium et Pritaneum: And albeit that the Cawls, our neighbours (now called Frenchmen) did hold their Assemblies for justice, only at Charnute and Charters, a place situate in the midst of their Country that all the people might have indifferent resort; after which order also the Britons of this Island did make their meetings, as it may well be gathered out of Caesar's Commentaries, where he plainly writeth, that these Druids (which then were the judges amongst the Galls) had fetched that their manner of discipline out of Britain, where we now dwell; yet Nevertheless the Saxons our Ancestors (which succeeded them in this country) they retained the manner of the old Germane their own elders (who as Tacitus writs Jura per pagos vicosque reddebant) and they made distribution of justice not in one town or in the prince's palace; but also sundry other special places within the country. And truly the Normans, that invaded the posterty of the same Saxons here did not so much after the substance, as the name of this the Saxons order, which they found at their coming higher, for (in effect) they did but alter the word Gemote (which in the Saxon tongue signified in assembly or meeting together, into the french word Court or Cor (for so it is also found written) being a term of the self same force and signification. This court (or Cor) therefore is derived of the latin Curia, Cook Epist to his 4 Instit. Curia a cura qui a est locus ubi publicas curas gerebant, or Curia 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 from the Lord, and so it is the Ks. Court or Palatium Regium. which also is fetched from Cura, (as Valla writeth) whereby is notified, that heed and care ought to be taken in the decidings of Controversies: it signifieth properly both the assembly of men for the hearing of causes in variance, and the place also where that assembly is made; According to the first of which significations, the Saxons as I said, called it Gemote a meeting, of Gemettan, to meet, and agreeably to the second, the king's house was first called a Court, because the chief Court of justice was holden there. But now of Courts some were called ecclesiastical, some Lay, and other some mixed (that is to say) both ecclesiastical and Lay. Of this last sort I find but one namely the high Court of Parliament, which I call mixed, because it had the Bishops joined with the lay Lords to make up the second estate thereof, the first estate consisting of the Prince alone, and the third of the Commonalty, without any of the Clergy at all. Of which Court, albeit it was rather summoned to devise and create, reform and repeal laws, than to put them in execution: yet forasmuch as it both ministered the matter whereupon all the other Courts do work, and had in some causes ordinary jurisdictions also, I will speak first, and then pursue my division. That which we now (agreeing with the Scots and Irish) do call a Parliament, the Frenchmen do call Les Estates or assemble de les estates, because with them there (as with as also) the King, Nobility and Commons (which be the three Estates of the land) do meet thereat to consult: and the same in Germany is termed a Diet: for these other Courts that carry the name of Parliament in France, be but ordinary Courts of justice which as (Paulus Jovius writeth) are thought to have been planted by us, (and of which our own Counsels established in Wales, and in the North parts do bear the nearest show and resemblance.) This word Parliament (saith one) is Compounded of parium and lamentum, because (as he thinketh) Peers of the country did at those meetings lament and complain each to other of the enormities of their country, and thereupon provided redress for the same, but this is not very credible. But their opinion is more probable (as I think) which derive the Parliament simply from the French word Parlour, and that also from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 both signifying tospeake, and so by adding the termination, man (which is common in the french tongue, as well to many nouns, as adverbs) do make up Parliament, meaning thereby an Assembly of men called together to speak, or confer of their advice and opinion, and so also it may not unfitly be called Parliament for that every man there doth or should speak his mind: but Laur. Valla misliketh that kind of Etymology, Cook's 〈◊〉 stit. fol● 110. se● 164. yet my Lord Cook saith that it comes from parlour lament, to speak one's mind and his authority is not mean. I will not take upon me to set down the very time, The beginning of the word Parliament. in which the word Parliament came first in use, but forasmuch as it was transported out of France, it is not unprobable to guess that it began here shortly after the time of the Norman Conquest, One of the most authentic reports, The name Parliament was used before the conquest in the time of Edw. the Confessor, Cook 1 Instit. sect. 164 page 110 that I think can be sound of that name Parliament, is in the statute made 3. E. 1. and commonly called— where that assembly is said to be le Primer Parliament general, apres coronement le Roy but yet that is not the very first use of the word, for in the statute called Articuli clori and published 9 E. 2. these words are read amongst others, Tempore progenitorum nostrornm, quondam regum Angliae in diversis Parliament is sum is, etc. which word progenitorum and quondam regum must needs reach higher than to E. 1. that was but father to him that spoke it. So that I can willingly herein subscribe to the opinion of Polydore Virgil who in the eleaventh book of his English history which containeth the reign of King Henry the first, that was son to the Conqu. writing of the great assembly at Salisbury, saith thus, at illud apposite habeo dicere reges ante haec tempora non consuevisse populis conventum consultandi causa, nisi perraro facere, adeo ut ab Hemico id institutum jure manasse dici possi●, etc. and a little after, more galico vulgo Parliamentum appellant etc. and this is so much the more credible, as that King laboured by all means, and especially by restitution of the ancient, laws, (as all histories do agree) to heal the hearts of the English men, which were before deeply wounded by the oppressions of his father and brother William, to the end that he might thereby the better keep the Crown, of this Realm against his elder brother Rob. Witenage Mote Michall Sinoth, and Michael Gemote, names, of Parliament before the Conquest. Cook Inslit. fol. 110 who both had good right, and had moved his claim thereto: but what time soever this Court began to be called by the name of Parliament, this is certain, th●t the same was before known to the Saxons (or English men) some times by the word Sinoth and Micell Sinoth, of the Greek Synodos (now appropriated to ecclesiastical meetings only, and sometimes by these terms, micel-zemoce wizenazemoze and aupa-picena zemoze, (that is to say) the great meeting, the meeting of all the wise men, for wizan signifieth a wise man, and Gemote, a meeting: of which last word the names Shiyremoote, folemoote, and halymoote (that is to say) the assembly or meeting of men of a Shire of the men of a Town and of the tenants of a Hall (or Manor) had their beginnings also. And as Synoth is more used in the acts of Parliament themselves, so Gemote is more familiar to the histories: thus much as well of the present as of the ancient usual name, now let us look, into the thing itself. Like as in war where the King is present in person, The conformity and the reason of the Estates in Parliament and with him the Nobility, Gentry, and Yeomonry, there is the force and puissance of the Realm: even so in peace, wheresoever is the prince (as the head) to give life (that is to say, yield the highest and the last assent, and where the Barony consistting of the Lords spiritual and temporal, and the Commonalty made up of the Knights and Burgesses) be (as the body) present at his commandment, to deliberate, confer, consult and consent, there is also the Council and policy of the Realm, so that forasmuch as every man, (from the highest to the lowest) is there either in person or by procuration, therefore of right every man is said to be bound by that law which doth pass from such an assembly. And this frame of policy, is both Natural and Harmonical: 1. Natural, in that it hath an imitation of the natural body of man, truly called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a little world, out of the 3 cells whereof, namely, the head, breast and belly, the whole three powers of the soul do open and utter themselves: 2 Harmonical, because from such and so tuned a Base, Mean, and Triple; The beginning of the Parliament there proceedeth a most exquisite consent and delicious melody, the beginning of which manner of consultation, Parliaments holden long before the Conquest. Mirror c. 8 sect 2 and namely, with us of this Realm I see not how I can derive it from any other time then from that in which the Germans or English nation did set their first foot on this land to invade vade it, for Cornelius Tacitus writeth thus nec regibus infinita potestas, de minoribus rebus principes consultant, de maioribus omnes. Neither did they (together with the change of the soil) make change of this their wont manner of deliberation: for it is yet extant in monuments left behind them, The continuance of the Parliament until the Conquest. that after their coming hither, they frequented the same order in counselling which they had used in their own country before, These two Kings are great exemplars of grave wisdom, and would not trust their own judgements in a ●●tter of so ●●gh concernment, but consulted their wisemen about it knowing that plus vident oculi quam oculus. for proof whereof I might call Beda the Saxon historiographer to witness, who (reporting that the Christian faith took root by little and little amongst them in their particular Kingdoms within this land) writeth that King Edwyne of Northumberland would not embrace the preaching of the Gospel before he had communed and consulted with his friends and Nobility, and Wisemen, and that Sigeberth the King of Eastsex, being likewise moved to be baptised, did first call a Council of his subjects, and finding them all to favour the motion, did then himself also assent unto it. But because the Synods (or Parliaments) themselves be most faithful witnesses of their own do, and for that also the kingdom of the west saxons prevailing over the rest, and meeting (as it were) all their crowns to make on for herself, did in the end become mistress (or Monarch) of the whole Heptarchy (or seven Kingdoms) into which this Land was first divided, I will for a while leave historians, and come to the Synods, first showing by one or two examples, what persons were wont to be present at the parliament of that kingdom, and then confirming the like to have been used, after such time as the whole land was reduced to one entire estate and monarchy. Ine the King of Westsex who began his reign, about the year of the Incarnation of our Lord Christ 712. beginneth his Parliament thus: I Ine by God's gift King of the west Saxons, with the advice and teaching of Cenred my father, Ireledde my Bishop, and Ercenwold my Bishop, and with all mine Aldermen and eldest wisemen of my people, and also a great assembly of God's servants was careful concerning the health of our souls, and the establishment of our kingdom etc. Now let us see if three estates of Parliament (that is to say) the King, the Nobility, and Commons, may besound here. First the King's name is expressly added, the nobility is signified under these Bishops and Aldermen; for before the division of the Realm into Shires, every large Territory had an Alderman or governor: who was after the allotment into shires for the most part an Earl, in token whereof all our Earls to this day do bear the name of one shire or other. The Commonalty is partly included in the words: the Eldest wisemen of my people, which betoken the laiety, and partly in the words, A great assembly of God's servants which do notify the Clergy so called then, as it may appear by the first Chapter of the very same laws, for that they were consecrated to God's service. And lest any man should think that these estates were called together more for their advice and counsel, to be given to the king, then for any authority (or interest) that they had in making the law, the preamble calleth those laws, our dooms, or judgements. And the purveiw saith, we bid or command, in the plural number, which also may not be restrained to the King only for honour sake, as we now use to speak, for he is there named I Ine, in the singular only: Thus much I note once for all. That I be not hereafter troubled to repeat the same thing often. About one hundred years after the death of this Ine, one Aldred a King of the west Saxons also, as he calleth himself, but rather King of the English men and Saxons (as Asserius sayeth that written his life) did as he telleth in his preface to his laws, gather together and put in writing certain ordinances made by wise men in sundry Synods of sundry former Kings: as namely Ine aforesaid, Offa King of middle England, and Ethelbert of Kent, the first christened Prince of all the Saxon nation; which collection of laws he also sayeth that he shown to all his wise men, and they also thought them meet to be observed, but what maketh it to the three estates (will some man say) that the kings and their wisemen (which may well seem to be but their privy Counsellors) did establish laws. yes very much: for here the word Witena. (wisemen) doth include the Nobility and Commons because they be Counsellors of the Realm for the time in respect whereof the assembly of them was of some, called Witena Gemote a meeting of the wisemen as I told you, And of other it is termed Commune consilium Regni, the common counsel of the Realm, and that this must be so understood in this place, I will use none other argument, than the testimony of Alfred himself drawn out of the same place; for he saith (as you have heard) that the laws of the King Ine were made by a Synod of wisemen, and what those wisemen were, you here also understand by the report of King Ine himself And the stile of his own laws (that is to say) by the Nobility and Comunalty besides the King. Furthermore that I lose not another advantage offered me by this authority, I must also gather hereby, That not only the Kings of Northumberland, Essex, and Westsex used the three estates in making their Laws, but also that they of Kent, and middle England, maintained the same order: for King alfred's words (as you see) are one and the same for them all, and then consequently their manner was one and the same through all. But now that I may at the length leave these heptarchies or petty Kings, and pass to the Monarchies and great ones, the same Alfred after that the whole nation had yielded themselves unto him, and were shrouded under his protection against the furious storm of the Danish invasion, did at one time conclude a peace with Guthrum the King of the Danes, the stile whereof beginneth thus: This is the peace that King Alfred and King Guthrum and all the wisemen of the English nation have taken etc. Lo here you see (Ealra Witena Gemote an assembly of all the wisemen) After him, Edward called his wisemen to Excester, and consulted with them for the better observation of the peace of his own Realm, And he also at another time by the advice of his wisemen renewed and confirmed the league that Alfred had before taken with the Danish Captain. King Ethelstane concludeth his famous Parliament holden at Grateley thus: All this was ordained in that great Synod at Grateley, at the which was the Archbishop Walfhelme with all the Noblemen and Wisemen, that King Ethelstane gathered together, and the same King did also afterward call another assembly of his wisemen, to Excester to consult for the better execution of those former Ordinances. Edmond the King summoned a great Synod at London both of the order of the Spiritualty and Temporalty, the which (in the second part of the Law there made) he called by a general name, his (Witena) wisemen, and thanketh them all for their help in that advice. And after him King Edgar published certain laws which were made (as he saith) by the Counsel of his wisemen. K. Edgar made laws frequenti senatu, he began to reign, 959. Lambard. f. 62. Etheldred had consilium sapientium and be began to reign 979. Lam. f. 88 The like title and conclusion have those statutes also which King Etheldred ordained at Woodstock and the league which he made with Anlaf, another of the Captains of the Danish army, is entitled to be made by him and his wisemen. And certain other acts there be (though hitherto not imprinted) of a Parliament that was assembled in the year of Chest 1008. which fell under the reign of the same King, which are there reported to have passed under the authority of the King and his wisemen, both spiritual and lay, in which said last ordinances, this one thing for this purpose is worthy of observation: That whereas in the beginning of the laws all the acts are said to pass from the King and his wisemen both of the Clergy and Laiety, It is also supposed that the senatus consultum de monticolis Walliae, was in this King's time, the title is Consultum quod Angliae sapientes & Walliae consiliarij de monticolis fecerunt. Lamb. 94. in all the body and process of the law each statute saith thus: And it is the advice of our Lord and his Wisemen so (as it seemeth plainly) that it was then a received speech, to signify both the Spiritualty and Laity that is to say the Nobility and Commons, by the only word, Witena. (or Wisemen.) Finally those laws of the great King and Monarch Canute or (Knoate) which he made at Winchester and be yet remaining, do bear face and testimony that they were made by him and his wisemen: See of this Guliel. Lamb. 97. And there is an ancient written treatise entitled Modus tenendi parliamentum tempore regis Edwardi filii Etheldredi to be seen in many hands, purportng the very order, form: and manner of all this stately Court and Assembly. Now as these written authorities do undoubtedly confirm our assertion of the continuance of this manner of Parliament, so is there also unwritten law (or prescription) that doth no less infallibly uphold the same: for it is well known that in every quarter of the Realm a great many Boroughs do yet send Burgesses to the Parliament, which nevertheless be so anciently, and so long since decayed and gone to naught, that it cannot be showed that they have been of any reputation at any time since the Conquest, and much less they have obtained that privilege by the Grant of the King succeeding the same; so that the interest they have in Parliament groweth by an ancient usage before the Conquest, whereof they cannot show any beginning which thing also is confirmed by a contrary usage in the selfsame thing: for it is likewise known, that they of ancient demeasne do prescribe in not sending to the Parliament, for which reason also they are neither contributaries to the wages of the Knights there, neither are they bound by sundry Acts of Parliament though the same be generally penned and do make no exception of them. But there is no ancient Demean saving that only which is described in the book of doomsday under the title of Terra Regis, which of necessity must be such as either was in the hands of the Conqueror himself (who made that book) or of Edward the Confessor that was before him. And so again if they of ancient demeasne have ever since the Conquest, Mirror, c. 1. sect. 2. prescribed not to send Burgesses to the Parliament, than (not doubt) there was a Parliament before the Conquest, to the which they of other places did send their Burgesses; which seeing it is so, let us come nearer and examine whether the same order have continued since that time or no. The continuance of Parliament after the Conquest. To look for a Parliament (assembled of the English nation and Commons) soon after the Conquest were but to labour without expectation of good speed; for Silent leges inter arma. There were in the time of, and since the conquest in the reigns of H 1. K. Stephen H. 2. R. 1. K. John H. 3. etc. 280. Parliaments and acts made at every session Cook 1. Jnst sect. 164. p. 110. See Polyd. l. 11. and Hollingsh, p. 354. of the beginning of Parliaments in England. And during all the reign of the Conqueror either the sword was not put up into the scabbard, or if it were, the hand was always upon the hilt ready to draw it again. So unwilling on the one part were the English men to take the yoke, and more that rather their obedience was to be compelled, than their opinions to be consulted, and so haughty on the other part were the Normans victors, that to be called an Englishman was in their eye a great contumely and reproach. His son William also did rather pretend in word, some release of the former austerity in government than perform it in deed and experience: But his other son (the first Henry that ever reigned here) did not only at his Coronation promise restitution of St. Edward's laws (as we call them) but also delivered out his free Charter of the Grant of the same; in which (as M. Paris reporteth he acknowledgeth that he was crowned by the Common-council of the Barons of the Realm of England and there it may happily seem strange to affirm that this was a full Parliament; in the which there is no other mention but of these Barons only: But if it be considered, first, that the Germans expound and render the word Baro, by Freehears, a freeman, than that Math. Paris saith that the Citizens of London were at that time called Barons: And also that even yet Burgesses of the Five Ports do pass under the same name of Barons, and that every man (almost) hath his Courtbaron; It shall not be altogether without ground, to say that both the Nobility and Commonalty of the Realm were meant under these words (the Barons of the Realm) the rather because that speech is accompanied with the words (Common-council) and for that also, the self same Author doth afterward use the words Comunis assensus Baronagii when he intendeth to signify a just Parliament Ingulphus who died before 1109. saith Rex Eldredus convocavit magnates, Episcopos proceres & optimates ad tractandum de publs. negotiis Regni. Howbeit since I labour not with any penury of proof, I will relinquish the advantage of this matter, desiring only that they may be called to memory which Polydore Virgil hath before acknowledged concerning the restitution of the form of the Parliament made by this very same King, of whom also the Saxon Chronicles of Peterborough Abby do testify, that in the year after Christ 1123. he sent his writers over all England, and bad his Bishshops, Abbots, and all his Theignes (which signify as much as Barons before) that they should come to his Witena Gemote, on Candlemas day to Gloucester But to leave him, and to leap over Stephen, because he hath striven longer for the Crown than he enjoyed it. King Henry the second (saith Matthew Paris) in the year of our Lord Christ, 1185. Convocavit Clericos Regni, & populum cum omni nobilitate apud fontem Clericorum. And yet again to pass over his two sons, Richard and John, whereof the one spent the most part of his Reign in battle abroad, and the other in Civil wars at home. I read in the same Author, that King Henry the third, did in the year of our Lord, 1225. call together Omnes Clericos & laicos totius regni; Which assembly the same writer also in some places expresseth by the words Vniversitas regni, but what need I to hang long on the credit of Historians, seeing from this time downward the authentic writers of the Parliaments themselves do offer me present help. The great Charter of England (which passed from this King about this time, and for which the English men had no less striven than the Trojans for their Helena) beareth no show of an Act of Parliament, and yet I will prove by the Depositions of two sundry Parliaments, That it was made by the common assent of all the Realm in the time of King Henry the third, for so saith the statute called Confirmatio Chartae. Anno. 25. E. 1. in flat Terms, and the statute made at Westminster Anno. 25. E. 3. Cap. 1. saith, that it was made by the King, Peers and Commons of the land: in the 20. year of the same King Henry, the statute of Mert●n was published, which saith thus. Provisum fuit & consessum tam a praedictis Archiepiscopis Episcopis, Comitibus, Baronibus quam ab ipso rege & aliis. And in the 52. year of his reign was the statute of Marlebridge made, provideat (as itself speaketh) ipso domino rege ac convocatis discetioribus eiusdem Regni tam majoribus quam minoribus provisum est &. statutum. etc. The statute of Westminster the first, which was made in the third year of E. 1. hath this title. The establishments of King Edward made by this Council and by the Assent of the Archbishops, Bishop's Abbots, Earls, Barons and all the Comonalty of the land thither sumoned. The statute made at Gloucester in the 6. year of the same King's reign is there said to be thus made. Purrelant le Roy & apelles le pluis discretes de son Royalme auxibien des greinders come des meindres establie est & concordantment ordenie. To draw to an end, King Edward the second held a Parliament in the 14. year of his reign wherein are these words. Le (Roy per assent des Prelates, Counts, Barons, & tout le Comunaltie de son Realme en le Parliament etc. and the like speech hath he in another statute that he made. Ne quis occasionetur pro morte Petri de Gaveston. I do not think that I shall need to speak for further proofs amongst the Records of Parliaments after this time: for they do from henceforth not only show themselves in such store and plenty, but also set forth the several states themselves, the duty of their presence, the pains of their default or departure, and sundry other circumstances so particularly and plainly, that as I might well be charged (if you would stand upon them) in a matter not doubtful to have used speech nothing at all needful: and yet lest any man should suspect, that any of the two estates of this Assembly derived his voice in Parliament from the authority of any of these later laws, I must leave him to understand that in one short Statute of Parliament (holden in the 5, year of King Richard 2. statute 2. ca 4. he may read it 4. several times plainly spoken, that this was done anciently and of old time. So that here again also Prescription is ready to serve the turn, and to say the truth, this one law may stand for an Interpreter of all the rest, for whether they be said to be made by the King and his Barons, or by the King and his Clergy and Laiety, or by the King and his discreeter men, both great and small, or by the common. Assent of all the Realm, as I have already showed, or by the King and his Wisemen, or by the King and his Council, or his Comon-Councell, or by the King, Earles, Barons and other Wisemen, or after such other like phrases whereof you may meet with many in the volumes of Parliament; it cometh all to this one point, namely that the King his Nobility and Commons did ordain them. And (which is more) if you shall find any act of Parliament seeming to pass under the name and authority of the King only (as some have that show indeed) yet you must not by and by judge that it was established without the Assent of the other estates. To take one example for the rest, The statute of Gloucester (made the 6. E. 1.) speaketh thus: Our sovereign Lord the King, for the amendment of the land, hath provided the statutes under-written etc. But yet the statutes made at Westminster (in the 13, year of that King) and the statute of Quo Warranto (set forth in the ●0. year of that King also) reciting that statute of Gloucester, do plainly acknowledge; the one, that it was provided by the more discreet men of the Realm, aswell of the high as of the low degree being called together; and the other, that it was made by the King, calling together the Earls, Prelates, Barons, and his Council, And therefore it was well noted by Judge Brook, That though magna Charta, and sundry other old statutes do run in the name of the Prince only, yet the other estates are supplied in all good understanding. Again whether the form of an Act be thus. The King with the Assents of the Lords and Commons doth establish, or thus: It is enacted at the request of the Lords and Commons whereto the King assenteth, or thus: by the Assent of the King, and of the Lords spiritual and Temporal, and of the Commons it is enacted, or thus: It is enacted by the authority of this present Parliament; It is also all one in effect and substance: for the words (assenteth and enacteth) are equivalent in this case, 7. H. 7.14. & 2 H. 7. ●7. as it is holden 7. H. 7.14. &. 2. H. 7.27. whereas otherwise the necessity of the Assent of all the 3. estates of Parliament is such, as without any one of them the rest will lose their labour: For it fell out upon a time, that the King in Parliament willed that a certain man should be attainted, and should lose his hands, whereunto the Lords assented. But because there was nothing spoken of the Commons, it was adjudged by all the justices (4. H. 7.18.) That this was no Act that might bind, 4. H. 7.18. and therefore the party was restored. Hitherto of the Continuance and Assent of this our first and highest Court, This Court of Parliament maketh, enlargeth, diminisheth, abrogateth, repealeth, and reviveth Laws statutes &c. concerning matters ecclesiastical, capital, criminal, common, civil, martial, maritine, etc. Cook. 1: Inst fol. 110. sect. 164. see 4. Inst. chap. Parlia. ment. whereunto after that I shall have added a word or two of the jurisdiction thereof, I will proceed to the rest, if all judgements (as Cicero said) be conversant either in the punishment of offences, or in the decision of controversies, then is the Judgement of our Parliament of as ample authority as the assent of any or all other Courts whatsoever: for it declareth the laws that do bind all persons in all Causes aswell ecclesiastical as temporal, whereof you may see a great many examples in the volume of the old saxon Parliaments, how strange a thing so ever the popish Clergy in former times have thought it to be, it hath jurisdiction also in such causes which have need of help, and for which there is no help by any law already in force. And whereon the erroneous Judgements of any other Courts must be reversed by a higher authority, this Court doth not only reverse the errors of the upper Bench, formerly called the King's Bench, which is superior to all other, but it may also amend the errors committed by the Parliament itself, if any such shall at any time appear. Ecclesiastical Courts were many in number, & divers in nature, whereof the Chief was the Convocation of the Clergy of the whole nation of England and Wales, which was assembled together with the estates of Parliament, and it consisted of the Deans, Chapters, Archdeacon's, Procurators of all the Cathedral Churches, the next were the 2. provincial Synods of Canterbury and of York, to the later of the which, there were only three Bishoprics subject, that is to say, Durham, Carlisle, and Chester, and all the rest owed their obedience to the See of Canterbury. After those were the general Courts of the Arch-Bishops of Canterbury (that is to say) the Consistory (or Court) of the Arches for Appellations, the Court of Audience (of the Chancellors Court) which was wont to be in the Arch-Bishops house; The Commissaries (or the Prerogative) Court (which is now in being) for probate of Testaments, and the Court of Faculties for dispensations; then followed the special Courts of this Archbishop, namely his Consistory holden by his Commissary at Canterbury for his diocaesse, and lastly the Court of those peculiar Deaneries which did belong unto him, and do lie in the diocaesses of other Bishopps; The other Arch-Bishops (and each other Bishop) had in his own Diocese the Court of his Chancellor, and the Court of his Archdeacon or his Official. But forasmuch as the description of these ecclesiastical Courts, pertaineth to another learning, (I mean to the Civil and Canon Laws by which they were governed) and do withal require a double treatise by themselves, I will content myself with this bare enumeration of them at this time, and bend my labour to the discovery of the Lay (or temporal) Courts that now have place amongst us. Lay Courts were of two sorts, The sorts of Lay Courts in ancient time. at the first only base, and high; concerning the beginning whereof, I read that even as Moses (the special minister of Justice appointed by God) finding himself unable to sustain the burden of deciding all the Controversies of the people, Deut. 1. Exod. 18. did set Judges over Tribes, Hundreds Fifties, and Tenths of the multitude, to whom he referred the determination of smaller causes, reserving to himself the knowledge of matters that were of greater importance; so also that Saxon (but Christian King of England) Alfred, divided his whole Realm of England first into Shires, Division of the Realm for juris. diction. than those shires into Rathes, Rapes, or Rideings, and these again into Wapentakes or Hundreds; and lastly, those also into Leets, Barons, or Tything, and did withal establish jurisdiction in every of these, permitting to the Reeves or Judges of the lower rooms, authority of hearing smaller suits, granting greater power to the Shiriffs and Aldermen, which have charge of greater Assemblies, and detaining to himself the decision of such matters as by just cause of appellation, (either for Law or equity,) should be brought unto him. This Court of the whole Shire was of two sorts, whereof the one than called Scyre-Gemote, that is the Assembly of the Shire, and now termed the Sheriff's turn, was then (as now also) holden twice in one year: And this Court was of like jurisdiction, to the Court of the Leet, or of the Boroughs or Tything, as it was then called: The second and the Hundred Court (than named Hundre des-Gemote) was in those appointed to be holden once in a month at the least, and that was of like nature to the County Court (which is now kept every month also) unto the Court Baron anciently called healgemote, and corruptly halymote, that is (as I said) the Court of a Hall (or chief place) which is now at this day to be kept, and maintained once in three weeks, if the Lord will so have it. I read further more in the Laws of the Saxon King Edgar, thus: ne Gesece nan man Sun Synz etc. Let no man seek to the King in matter of variance, unless he cannot find right at home; but if that right be too heavy for him, then let him seek to the King to have it lightened. The very like whereof is to be seen (in effect in the Laws of Canutus the Dane sometimes King of this Nation also. The high Court of justice before the Conquest for Laws and equity. Out of which laws I gather four things. First, that every man had means to use in these base Courts at home in the Country for the recovery of his right. Secondly, Then that no man ought to use it out of the County, or to draw his plea from thence without good cause, both which things lie plainly in the letter of this Law. Thirdly, that the King himself hath a high Court of Justice wherein it seemeth, that he sat in person, for the words be: Let him not seek the King. And lastly, that the same Court of the King did judge, not only according to mere right, and Law, but also after equity and good conscience. For first the words be: unless he cannot find right at home, by which it is permitted that then he might use to go to the King for right. Secondly Again, if that right be too heavy, then let him seek to the King etc. whereby it is meant, that he should have the rigour of the Law mitigated by the conscience of the Prince, and after this order, and in these two sorts of Courts was all Justice administered until the time of King William the Conquerour● during whose reign (as also under the Government of King Rufus his son) it is to be thought, that the ordinary course of Justice was greatly disturbed, as well by reason of the intestine and sorraign wars, as also because that these two Princes governed by a mere and absolute power, as in a Realm obtained by Conquest, but yet it was so fare off, that any of them did utterly abolish these Courts, That the same did not only remain during all their times, (howsoever put to silence for the season) but also had continuance afterwards, and do yet (as they may) here bear life amongst us: for, as I said, those base Courts of the Shires, Hundreds, Boroughs, and Manors, do yet continue in manuer the same in substance that they then were, and that the pleas ought no more to be taken from then now in our days (without cause) than they ought to have been, may evidently be proved by the writs of Tolt, pone accedas. ad Curiam, and Recordari, which we now yet use, and that to this only end, to remove suits upon cause out of one Court into another. The like I may also affirm of that high Court which then followed the King himself, for albeit that many particular high Courts be now since that time advanced, by reason that the multitude of suits (still increasing with the iniquity of the age of, the World,) would not suffer them all to be ordered in one place, without both into ler●ble delay of matters, and grievous vexation of men, yet nevertheless if ye will throughly behold the matter, and subject about which all these Courts are now occupied, you shall perceive that they are but as it were so many branches sprung up out of that one tree or stream derived from the same spring and sountaine. For letting pass those Courts of the Country which I have already touched, also those other small Courts of record that be in Cities and Towns corporate, Pipowders of Pies and powldres, that is dusty feet: because it is for Travellers to the sayr yea, and the Pipowders Court itself that lasteth no longer than the Fair, All our higher Cours at this day be either Courts of right and Law, or else of equity and conscience, as they then were, although they now require another subdivision, than they then had; And that (if you will) may be this. The Courts of Law do either handle civil or criminal causes: The late division of Lay Courts And these Civil causes be either moved between the Lord Protector and the people of England (formerly between the King his tenants and subjects) or else between one subject and another. Those Courts of Law that hold plea of common or civil matters that grew between the Prince and subjects be these. The Exchequer devised for the safe custody of the lands formerly called the Crown lands, and for the faithful answering of the revenues of the same. The Court of wards and Liveryes, and the Court of the duchy of Lancaster, both which are now altered. And the Chancery Court (at the least) so far forth as the same hath to do with Petitions, traverses— the droith and such like. Those other Courts of Law that have jurisdiction of civil or Common Pleas arising between, subject, and subject, be these. The Common Place or Bench: The Marshalsea for matters heretosore within the verge, or limits assigned to the King's house or Palace: The Admiralty Court, which was for marine Causes: And the upper Bench, in time passed termed the King's Bench, so far forth as it yet doth retain jurisdiction in matters of debt, Assumptions, Actions upon the Case, and such other things properly tryable in the Common Place, and not there. Criminal causes do generally belong to the upper Bench, and have formerly belonged to the Star Chamber, or else particularly do appertain to the Constable's Court, to the Marshasie, Admiralty, Goal delivery, Oyer and Detorminer, and Sessions of the Peace. And these be the Courts of Law that have ordinary resort and jurisdiction. The Courts of Conscience be these, First the Chancery open to all men at all times. Secondly the Court of the Request, that did hear only the suits of poor men, and of the Prince's servants. Thirdly The Chancellor's Court, that was within the Exchequer: and Fourthly, two Councils, which formerly were established, the one in Wales, and the other in the North Country, both consisting of Precedent and Council, now taken away, which were like unto those which in France are called Parliaments, as I said before. But now to the end that it may the more evidently appear how, and by what degrees of increase, these many Courts have sprung out of that one, it is requisite that I proceed to the history of King, William the Conqueror (where I left) and to descend from him, downward, until I have set all on foot. The Court of Exchequer. The Authority of this Court is of original jurisdiction without any Commission Cook: 4. Inst. c. 11. p. 130. It is confessed by all writings that the Conqueror after such time as he had suppressed the forces of those that made head against him here, did immediately cause the whole Realm to be exactly surveyed by Shires, and Hundreds, severally aswell for the understanding of the woods, pastures, meadows, and tillage thereof, The first survey of the Kingdom was by Alfred about 872. the Register thereof was kept in his treasury at Winchester. Daniel f. 11. as also of the profitts of Churches, Mills, Villains, and of all other Commodities whatsoever. The record of which survey was then called doomsday Book, and was apppointed to be kept in the Exchequer at Westminster, where it now resteth. And that Court did he then also newly erect for the ordering of his revenues, after the name of the Exchequer: in Normandy it had not only the government of revenues of the Duke there, but was also the sovereign Court for administration of justice amongst his subjects, Custom Normand. 48.52.635. and so continued until that Lewis (the 12. King of France) converted it into a Court of Parliament consisting of Precedent and Counsellors, and established it at Rouen in Normandy, where it now remaineth: But this his Exchequer in England had only the direction of his demeasns and receipts, the administration of Common justice continuing still in that other Court of his as it was before his coming hither: For proof of which matter I call to witness Gervasius Tilberiensis, a learned man that lived so near to the time of the Conquest, that he confesseth he had talk with Henry Bishop of Winchester, which was son to the Conquerors sister. This man was an officer of the Exchequer, here, and penned special dialogues of the observations of the Exchequer which he dedicated to King Henry the second, and are yet in the Exchequer in the Black Book there, in the first part of which his dialogues, ca 1. he writeth (for the advancement of the Antiquity of the Exchequer) that it was brought out of Normandy by the Conqueror; and for the authority of the Court he hath (amongst other words) these following: Nulli licet statuta Scaccarii infringere, vel eis quavis temeritate resistere, habet enim hoc common, cum ipsa domini Regis curia, in qua ipsc in propria persona jura decernit, quod nec recordationl, nec sententiae in eo latae, liceat alieni contradicere. Whereby it is plainly proved, the Court of the Exchequer was at that time a distinct Court from that Court of the King, in the which he himself sometimes, and commonly his justice (called then Prima justitia) did use to sit. The one Court, having authority over the King's demeasns and receipts (as Gervasius in all that work at large discourseth) and the other using the power of distributing common justice, as his words in this place do sufficiently purport. And therefore I cannot (but here by the way) note the error of them, which do maintain, that the Exchequer was (in this time of King Henry the second) a Court of whatsoever Common pleas for all subjects, and which for proof of their assertion) do allege the Title of Mr. Glanvil●'s book in part thus: Et illas solum leges continet & consuetudines secundum quas placitatur in curia Regis ad scaccarium, for overthrow whereof, first, I say, that the words of this title be not the words of Glanvill himself, but of that man (whatsoever he were) that published his book by print. for he entitleth the book thus, Tractatus de legibus & tempore Reg is Henrici secundi compositus, illustri viro Ranulpho de Glanvill juris regni & antiquarum Consuctudinum eo tempore peritissimo, which doth plainly discover, that he speaketh of Glanvilla as of another man, and which also lived not then but at another time. Secondly I affirm, that if it were the speech of Glanvill himself, yet (if you will take the rest of his words with you) than you shall see that they have another meaning: for the words stand thus together, Secundum quas placitatur in Curia Regis ad Saccarium & coram Justiciis ubicunque fuerint: which words coram Justiciis ubicunque fuerint) do set forth the other Courts of the King whereof I now speak. Lastly, I undertake to show, not by the title, but by the Text of Glanvills own book, that in his time the King's Court was one, and the Exchequer another: for throughout his whole work, he called the Court of Common P●eas Curiam Domine Regis, And the Style of the writ therefore is, quod sit coram me vel Justiciis meis: But when he cometh to speak of the Exchequer, he talketh of Acompts to be made to the King there, and of none other matter: as namely in the 7. book Ca 10. where he hath this, Si dominus Rex aliquam custodiam alicui commiserit tunc distinguitur utrum ei custodiam pleno jure commiserit, ita quod nullum inde reddere compotum oporteat ad Scae●arium, aut aliter. But before that I leave the reign of this King Henry the second: I must add this also, that he in the xxiii. of his reign did (by the advice of some of his Bishops) cut the Realm into 6. parts, and to every of these parts appointed three Justices, the which are (by Henry Bracton) called Itinerants, and in Britons Book, Justices in Eire quasi errantes, as Gervas' of Tilbery expoundeth it. The proper names of which Justices are set down by Roger Hoveden, who also describeth their circuits, not to differ much from the same that our Justices of Assize do now ride. And so I conclude, that not only during all the time of the Conqueror himself, of William his son, and of his other son Henry the first, (which was a peaceable Prince, and a maintainer of the ancient Laws, and learned in them, whereof he had the name (Beauclark) but also under the government of King Stephen, and of this Heury the second there was one Court following the King, which was the place of Sovereign justice, both for matter of Law and conscience; and one other standing Court which was Governess only of the lands and revenues of the Crown, The first of which was then called Curia Domini Regis & Aula regia, Bract. fol. for that the Prince himself did many times fit in person there, and had Justices (a latere suo residentes) as Bracton saith, namely, his chief Justice, Chancellor, Constables, Martial, and others. The later was then (as it is now) cal●ed Scaccarium eo quod lusibilis Scaccarii formam haberet. If you will give credit to Garves. Tilber. or else it took the name of Statarium, Eo quod stabilis et firma effect ibi as Paulus Aemilius and (after him) Polydore Virgil doth write of it and in this the Prince sat, not personally at any time, but his chief Justice as Precedent, and then the Chancellor of the Exchequer the Treasurer and Barons. The Common Place. And in this manner that high Court of the King continued until that Henry the third in the 9 year of his reign (which was about the time in which he aspired to the age of xxi, years) granted unto his subjects that great Charter of the liberties of England in the 11. Ca whereof he ordained thus, Communia placita non sequuntur curiam nostram, sed teneantur in aliquo loco certo: whereupon followed two things, The first, This Court, was in being before this statute it doth not appear that it was then newly e. rected by the stat. of M. Ch. that this Court was directed for the determination of all such pleas as did not concern the Crown and dignity of the Prince but were merely civil, and did belong unto the subjects between themselves. The second, that this Court was established in a place certain (and that was at Westminster) to the end that the people might have a standing Seal of Justice where to they might resort for the trial of their own causes, and not to be driven to follow the King and his Court, but only where the matter respect him. And after this, fo. 105.108. all the Writs that are recited in Henry Bractons' book (which was written in the latter end of the reign of this King Henry the third) have this Commandment to the party, quod sit coram Justiciariis meis apud Westmonasterium, and not coram me vel Justiciis meis, as the former form in Glanvill was. And thus began the Court, which (because it hath power over Common-Pleas) we now call the Common-Place. About this time also, or not long after, some other Courts of Justice were likewise opened, The book called Britton as it may partly appear by Henry Bracton, but more plainly by John Britton, which followed immediately after him, for in the beginning of the reign of King Edward the first, this John Britton then Bishop of Hereford (whose name Mr. Bale in his Centuries (or his Printers) mistaketh and calleth Bekton) being singularly learned in the Laws of the Realm, did at the commandment of that King, and in his name) compile a book now imprinted and named Britton: in the beginning whereof he d videth all jurisdiction thus: First, that the King himself had sovereign jurisdiction above all others in his Realm to Judge in all causes whatsoever: Secondly that the Marshal of the King's house had the place of the King to hear and determine the pleas of the Crown within the verge, and that the Justices in Erie had like authority in every County once in 7. years. Thirdly, that the Justices which followed the King wheresoever he went and sat in his place, had conusance of erroneous Judgement, Appeals, and other matters of the Crown. Fourthly, That the Coroner of the Household had his proper power within the verge and that he and others had the order of weight and measure throughout the Realm. Fiftly, That Sheriffs, Coroners, Hundredors' Burgesses, Sergeants and Beadles, had (and so have) their Courts within each of their particular limits. Sixthly, That Justices (being continually at Westminster) have power over Common Pleas. Seventhly, That the Exchequer at Westminster had authority concerning the King's Debts and Feeds, and all things incident thereunto. And Lastly, that other Justices had the charge of Assize of the deliverance of Gaols in every County, Forasmuch as after this distribution of power to hold plea thus made: some of these Courts would not contain themselves within their appointed limits, but sought to enlarge their authority, by usurping jurisdiction that was appropriate to others. Articuli super Chartas ca 3, 4, 5. The same King did by Parliament (holden in the xxviii year of his reign) confirm that great Charter for ever, and in certain articles (as he did call them) set forth upon the said Charter: did then by like authority of Parliament enact, that they of the Exchequer should not take knowledge of any Common Plea: That the Seneschal (or Steward) and the Marshal of the King's household should not have plea in hearing of trespasses, Seneschal os Sein, a house and Scale skilful. So steward, of Stow a place and Wear a keeper: contracts and covenants made within the verge; And the Chancellors and the Justice of the King's Bench (now the upper Bench) should follow him wheresoever he went, to the end that he might always have men about him that were able to deliver Law to such as should require it. Hitherto (as you see) there is no express mention in Britton either of the Court of Admiralty, the Constable's Court, or the Chancery, and therefore it remaineth that we labour to find out from whence they also fetched their beginnings and that shall we the more easily do, if we give heed to this that Britton hath already opened, for he leaveth the sovereign jurisdiction of all causes in the King, The Admiralty. The British and Sa●on Kings had their Chancellors, as Etheldred who began his reign 978 Edw. the Confess●● had Re●nb●ld for In●●● Cha●●●lor. Edg●● had A●u●ph and ●●ded and Edmund had Turk●ull. and K●ag Athe●stone had Wolfaid for his Chancellor Cook 4. Inst. ● 97. and Ethel ba●d had Turketill for his Chancellor. about 718. so that whatsoever the King hath particularly the ivered out to others, his Justices Commissioners and Delegates, that still remaineth in himself, and was exercised either by himself in person, or by his Chancellor, Councillors of a State, and Justices of Law that continually attended on him for that service. And therefore first concerning the Admiralty, I think that the decision of marine causes was not put out of the King's house and Committed over to the charge of the Admiral until the time of King Edward the third, whereunto I am led partly. And then (after this subscription of him and his Queen, and of the Archbishops and Abbots) one Renibaldus is named Cancelarius: and in the end of all, after the date of the Chreme it is written thus, Siwardus Notarius ad vicem Renibaldii Regiae dignitatis Cancellarii, hanc cartam scripsi & subscripsi; The next year after this King William the Conqueror gave (by another Charter) to the same Abbey sundry Lands in exchange for Windsor, the which King Edward had bestowed on them; and in the end of this grant he likewise saith; Ego Willielmus Dei Gratia Rex & Dux Normannorum atque Princeps Cenomannorum hoc scribi precipi & scriptum hoc signo deminicae crucis † confirmando stabilivi nostraeque imaginis sigillo insuper assignari curavi. And then (in order as before) it followeth, Ego Mauritatus Regis Cancellarius favendo relegi & sigillavi. Hereby it appeareth that the office of the Chancellor then was at the first to make and seal the Instruments that passed from the Prince, and this I call his original duty, because it cannot credibly be showed of any history (as I think that ever there was in England, any of sealing of writings or mention of the name of Chancellor, before the days of this Edward, who (having spent agreat part of his age in Normandy) first brought the use of the Seal from thence into this Nation, See before of the antiquity of Chancellors and with it (I suppose) the name of Chancellor, In whose time also Leofricus the Britain is the first Chancellor I find named. For that we learned of the Normans our manner of sealing, Ingulphus the Abbot of Croyland (which came out of Normandy hither, in the Train of the Norman Conqueror) assureth us, writing thus, Normancii Cyrographorum confectionem, cum crucibus aureis & aliis signaculis sacris in Anglia formari solitam, in Cerae impressionem mutant etc. And that the name of him that kept the seal came out of France, also it may be probably conjectured both by the word (which we found nearer to the pronunciation of the French than of the Latin) and also by the office it self, which hath been exercised in France (under the same name and nature that we use it) ever since the time of Charlemaigne at the least. And so it is manifest that the Chancellor did bear this name, and had the Charge of the King's seal and writings both before and in the reign of the Conqueror, the which also (without all doubt) he hath ever since continued. Howbeit when I say (writings) I do not mean, he had the authority of making original writs here before the time of the Conquest, for those came out of Normandy also, as the very forms of the most of them (being expressed in the book of the Norman customs) may lead a man to think; and that rather also, because the Saxons (our Ancestors) whose proceed in Judgement was deplano, and without solemnty did not use (so far as I have hitherto observed) to call the parties by any writ or writing, but to send for them by certain Messengers, which they termed Theins, that is to say, Ministers, or Sergeants, yea, and what that manner of summoning by Writ was brought into use here, forthwith committed to the Chancellor; For Original Writs of this time, had this form, Teste Ranulpho de Glanvilla, etc. Which was the name of the chief Justice of the King's Court, then under whose sealing they passed abroad. Nevertheless for as much as it is to be read in Bracton, quod omnia bre●ia de pace (which are prohibitions indeed) irrotulari debent in Rotulo de Cancellaria, and for that not only the Statute of Westminster, the second (which was made in the 15. year of King Edward the first, saith in plain words, that the for me done in reverter satis est in usu in Cancellaria, and hath often mention of the Clerks there; But also that other Statute of articuli super Chartas hath the express names both of the Chancellor and Chancery, it must be confessed that the Chancellor had the keeping of the Rolls of Record, and the making out of Writs either at the same time that the common lace was erected, or not long after, that is to say, either under the reign of King Henry, the third, or else in the beginning of King Henry the third, or else in the beginning of Edward the first, which later King (as Judge Prisot reporteth of him) laboured carefully to reduce our Law into order and writing, and, in mine opinion may therefore not unworthily be accounted our English Justinian. And albeit that the House of the Rolls, which hath been of long time as it were, the College of the Chancery men, was builded at the first by the same King Henry the third for another purpose, namely for the sustentation of such Jews as would give their names to Christ, and was thereof called, Dominus Judeorum conversorum: Mat. Paris yet that hindereth not, but that the same House might shortly after be converted to another use, upon experience (as it is likely) that sew converts was found amongst the Jews to inhabit it; and then thus have you the Chancellor (or now instead of him the Commissioners) furnished with the Seal of Grace, and Seal of common Justice, and with him or them the Chancery for the keeping of Records, and the Clerks thereof for the framing of Writs; Coment. ●43. and as touching the authority in Judgement, I see not what Jurisdiction he had (his Court of Equity and some powers given by late Statutes only excepted) which is not incident to the making or keeping of Records, for he could not reform the error of another Court: yea, error committed in his own Court was reversed in the Bench of the King, now called the upper Bench. Neither could he try any Issue taken before him; ●4 E. 1. ●5. For that also was and is to be done in the upper Bench as a thing without his Jurisdiction. It remaineth then that I speak of this Court of Equity which (in my opinion) is not altogether so ancient as others; Os the high Court of Chancery. for (as you have heard before) King Edward the first and the Parliament took order, that the Chancellor should follow the King, even as the Justices of the Bench did, to the end that he might always have at hand, all men for his direction in Suits that came before him, the meaning hereof (as I think was) that the Justices should inform him of the Law, and the Chancellor of Equity; for (otherwise) I see not what use he could have of the Chancellor in this behalf: but only for that he being commonly a Bishop, or other Spiritual person (was the more meet) after the opinion of men in those days) to give advice according to equity and conscience. In which respect also he was visitor for the King, and bestowed his Benefices, so that such as then sought relief by Equity, were Suitors to the King himself, who (being assisted with the Chancellor and Counsel) did mitigate the severity of Law in his own person, when it pleased him to be present, and did (in absence) either refer it to the Chancellor alone, or to him and some others of the Counsel. And this continued (if I be not mistaken) until the 20th. year of the reign of King Edward the third, in which year (when he made preparation for his wars in France) it was enacted by Parliaments that the Chancellor and Treasurer should determine all complaints against extortion of Officers, maintenance, imbracery, and such like offences, and albeit that (indeed this authority be neither granted to himself alone, nor doth plainly erect any Court of Equity, yet for as much as it is the very first several power of this sort, that I find committed to him from the King (in which also it is to be thought, that the proceeding was extraordinary and absolute, even as the Kings own before was,) I suppose it to be the laying of the first stone of the foundation of the Chancellors Court. But after this (in the 36th. year of the same King's reign) it was provided by Parliament; That if any were grieved contrary to the Articles of that Parliament, or others, That he should have remedy in the Chancery without other Suit, by which Law the Chancellor was not only made sole Judge in this newly erected Court, but was enabled so to proceed in Judgement after his own discretion, or (otherwise) the words (without other Suits) were not Beneficial. After this also his authority was enlarged by sundry Parliaments, as by one, to award damages upon untrue suggestion made before him: by another, To send Proclamation of Rebellion against such as would not appear: And by others, To grant Commissions of divers kinds, and to do many other things, whereof it is not needful to make rehearsal here. And truly as these be first beginnings (that I can find) in Statute Law concerning this authority of Chancery Court, so also I do not remember, that in our reports of Common Law, there is any mention of causes drawn before the Chancellor for help in Equity; but only from the time of King Henry the fourth, in whose days (by reason of those Intestine troubles) Feofments to uses did either first begin (as some have thought) or else did first grow common & familiar as all men must agree for remedy, in which causes of uses (chief) the Chancery Court was then fled unto, as to the only Altar of help and refuge. But whence the Court of Equity took a beginning to be a distinct Court; I have made proof (as I think) that the power thereof was always in exercise, and considering that formerly all the Princes of this Realm, and now the Lord Protector of this Nation is the immediate Minister of Justice under God, and sworn to deliver to the people (aequam & rectam Justitiam) I cannot see, how that it may otherwise be, but that (besides his Court of mere Law) he must either reserve to himself, or refer to others a certain preemment power, by the which he may both supply the want and correct the rigour of that positive (or written Law which (of itself) neither is or can be made such a perfect rule, as that a man may thereby square out Justice in all causes that may happen. For written Laws must needs be made in a generality, and be grounded upon that which happeneth for the most part, because no wisdom of man can foresee every thing in particular, which in time experience doth beget, and therefore although the written Law be generally good and just, yet (in some special case) it may have need of correction, by reason of some considerable circumstance (falling afterwards) which at the time of the Law making was not foreseen, whereas (otherwise) to apply one general Law to all particular cases, were to make all Shoes by one last, or to cut one Glove for all hands, which how unfit it would prove, every man may readily perceive. And here of this Equity hath this name in Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. secundum, and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 id est conveniens; & assimulatum; because it doth not only weigh what is generally meet for the most part, but doth also consider the person, time, place, and other circumstances, in every singular case, that cometh in question, and doth thereof frame such a judgement as is agreeable and convenient to the same, so that (in sum) the written Law is like a stiff rule of Steel (or Iron) which will not be applied to the fashion of the Stone (or Timber) whereunto it is laid; and Equity (as Aristole saith well) is like to the leaden rule of the Leasbian Artificers which they might at pleasure bend and bow to every Stone of whatsoever fashion. And hereby it may also appear, what use there ought to be aswell of the positive (or written Law) as also of Equity itself, for seeing that the positive or common Law, is made meet for the most part, and that Equity is added for help in few or singular causes, it followeth by reason, that commonly and singularly the positive Law, should be put in ure, and that Equity should be appealed unto, but only in rare and extraordinary matters, lest on the one side, if the Judge in Equity should take Jurisdiction over all, it should come to pass (as Aristotle saith) that the best should bear rule (for so he calleth man whose judgement (if it be not restrained by the chain of Law) it is commonly carried away with unruly affection, and on the other side, if only straight Law should be administered, the help of God (which speaketh in that Oracle of Equity, should be denied unto men that need it. And therefore even as two Herbs being in extremity of heat, or Cold be (by themselves) so many poisons, and yet (if they be skilfully contempered) will make a wholesome medicine, so also would it come to pass, if either this Arithmetical Government as they call it) by rigour of Law only, or this Geometrical judgement, at the pleasure of the Commissioners only should be admitted, And yet if they be well compounded together, a most sweet and Harmonical Justice will follow them. And as a good Chancellor than would not, so the Commissioners now will not make this Proclamation, Nullus recedat a Cancellaria sine remedio, and so receive Cognisance of every complaint, which shall be made before them upon whatsoever suggestion, and thereby both overthrow the authority of the Courts of Common Law, and also bring in upon men such a confusion, and uncertainty, as hardly any man shall know how, or when he shall hold his own assured, but they will rather have the Common Law to have her just honour, and not to be interrupted in her right course or current, and will yet withal provide that the Gate of mercy may be opened, in all calamity of Suit, to the end that (where need shall be) the rigour of right may be amended by the Judgement of Equity, in which behalf this our age hath greatly to thank God, for that by the Ministry of our Protector) he doth not only leave to us the right use of the Courts of mere Law, but hath also hitherto placed in that Praetoritall Room (or Chancery) men no less learned in the common Laws of the Nation, than accomplished with the skill of this moderation and equity. I see that occasion is offered me, to enter into the handling of some few questious concerning the order of Chancery, and chief of this one, whether it be meet that the Commissioners should appoint unto themselves, and publish to others any certain rules or limits of equity or no? about the which men Godly and learned have differed in opinion; For on the one part it is thought as hard a thing to prescribe equity any certain bounds, as it is to make one general Law to be a meet measure of Justice in all particular causes: And on the other side it is said, That if it be not known aforehand in what cases they will reach forth their help, and where not, than neither shall the people be assured how or when they may possess their own in peace, nor the practiser of Law be able to inform his Client what may become of his action, The later of which opinions I hold to be the best, (according to the late Regulation of the high Court of Chancery (together with the Common Law) in August the 22th. Anno 1654. by his Highness the Lord Protector and his Counsel:) For though equity cannot be limited; yet as it puts an end to controversies, it must have certain rules prescribed to it, otherwise it can neither be called a Court, nor can the Suitors be certain of any relief to be had therein, which Court (were it so) would soon be destroyed. Because this and the like matters be of more difficulty than that I may (with modesty) take upon me to determine them. And for that also it is not my present purpose, to dispute what is convenient to be done in any Court, but rather to discourse the beginning, and acknowledge the benefit of them all, I will only wish this one thing. That before any motion should be made for either the parties Plaintiff or Defendant, 4. or 5. day's notice thereof were left with the Clerk in Court on the other side, to defend that motion, that so he might not be put off to show cause from day to day, which rather increaseth trouble and charges, than either furthereth the suit for the hearing or benefits the parties in their cause. Which thing whether it might be more couvenient than the present manner of motions, I will leave to the judgement of such as have more wisdom to devise, and power to execute; And will sum up the rest of our Courts and make an end. The Court of the Duchy (or County Palatine of Lancaster (which is by a late Act of Parliament committed to the custody of a Commissioner) grew out of the grant of King Edward the third, The Court formerly called, The Duchy Court, the jurisdiction whereof is now committed to a Commissioner or Commissioners. County Palatine of Lanc. erected in Parliament 50 E. 3. and justices of Assizes Gaol delivery and of the Peace have been since the erection of it. Cook lib. 4. f. 204. 205. who first gave that Duchy to his Son John of Gaunt, and endowed it with such royal rights as the County Palatine of Chester had. And forasmuch as it was afterward extincted in the person of King Henry the 4th. (by reason of the union of it with the Crown of the Realm) the same King (knowing himself more rightfully) Duke of Lancaster, than King of England, determined to save his right in the Duchy, whatsoever should befall the Kingdom. And therefore he separateth his Duchy from the Crown, and settleth it so in the natural persons of himself and his heirs: as if he had been no King, (or Politic Body) at all, in which manner it endured during the reign of King Henry the first, and of King Henry the 6th. that were descended of him. But when King Edward the 4th. had (by recovery of the Crown) recontinued the right of the House of York, he feared not to appropriate that Duchy to the Crown again, And yet so as he suffered the Court, and Officers to remain as he found them. And in this manner it came (together with the Crown) to King Henry the 7th. who liking well of that policy of King Henry the fourth (by whose right he also obtained the Kingdom) made by separation of the Duchy as he hath done, and so left it to his posterity. It appeareth in our Books of the Terms of King Edward the 4th. The Star Chamber. and the Report of cases, happening under the usurpation of Richard the third. This Court was in being before 28 E. 3. Cook lib. That sometimes the King and his Counsel; And sometimes the Lord Chancellor and other great personages, did use to sit Judicial in the place (then and lately called) for that it is decked with certain Stats) the Star Chamber. But forasmuch as (be like) that Assembly was not ordinary, therefore the next King Henry the 7th. and his Son Henry the 8th. took order by two several Laws; That the Chancellor assisted (with others there named) should have power to hear complaints against Reteinors, Embraceries, misdemeanours of Offices and such other offences, which through the power and countenance of such as do commit them) (do lift up the head above other faults) and for the which inferior Judges are not so meet to give correction. And because that place was before time dedicated to the like service, it hath ever since also been so used until it was taken away in the late King Charles his reign. The Court of Requests The Court of the Requests being of the same nature (as I said) with the Chancery took beginning by Commission from King Henry the 8. before which time the Masters of the Requests had no warrant of ordinary Jurisdiction, This Court had no warrant by act of Parliament or prescription to establ shit. Cook lib. 4. fol. 97. but travailed between the Prince and Petitioners, by direction from the mouth of the King. The same King also established one Court of Precedent and Counsel in the Marches of Wales 34. & 35. H. 8. The Court of the Marches of Wales and that of the North parts were taken away in the late K Ch. his reign. Anno 17. Car. And another like Court of Precedent and Counsel in the North parts, which Court in Wales was a Court of Law in its principal Jurisdiction, although it did withal exercise other powers of equity. by virtue of other several Commissions that did accompany the same, and the Court of York was in its principal Jurisdiction Equity, and did exercise other powers by virtue of other Commissions. Court of Wards. The Court of Wards began about the 32th. year of the reign of King Henry the 8, who also (in the next year after) added thereto the office of the Masters of the Liveries, and withal conjoined the names, ordaining that it should be called, The Court of his Wards and Liveries. The same King likewise had erected one Court of the general Surveiours of his Lands; and one other of the Augmentations and Revenues of his Crown; and a third Court of the first fruits and Tithes of Benefices. But all these were afterwards dissolved and (by Queen Mary) united to the Court of Exchequer. Thus having run along these Courts deriving them from the Crown, I might proceed yet further to show the original and beginnings of some Courts erected by the late Parliament, and the nature and beginning of the High Court of Justice that was erected in Westminster Hall Anno 1648. but they being so fresh in the memory of this age, I shall not need to make mention thereof. FINIS.