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<DATE>2010-06-23</DATE>
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<NAME>Megan Marion</NAME>
<RESP>MURP</RESP>
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<DIV1 TYPE="title page">
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<P><GAP DESC="foreign">; OR, An Hi&s;torical Di&s;cour&s;e OF PARLIAMENTS in their originall before the Conque&s;t, and con|tinuance &s;ince.</P>
<P>Together with the Originall growth, and continuance, of the&s;e Courts following,</P>
<LIST>
<HEAD>Viz.</HEAD>
<ITEM><HI>High Court of</HI> CHANCERY,</ITEM>
<ITEM>UPPER BENCH,</ITEM>
<ITEM>COMMON-PLEAS,</ITEM>
<ITEM>EXCHEQUER,</ITEM>
<ITEM>DUTCHY,</ITEM>
</LIST>
<P>And other inferiour Courts now in u&s;e in this Commonwealth.</P>
<P><HI>LONDON,</HI> Printed for <HI>Tho. Firby,</HI> near <HI>Grayes-Inne-Gate</HI> in <HI>Holborn.</HI> 1656.</P>
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<DIV1 TYPE="to the reader">
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<PB REF="4">
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<HEAD>To the Reader</HEAD>
<P>_THis treati&s;e, though &s;mall, yet hath under|taken a &s;ubject of a very &s;ublime nature to handle, the Author being un|known (by his per&s;on, though not for his pains) another hand hath pre&s;umed to in&s;ert a few marginall notes to it, with his authorities for what he &s;ets down; if thou compare both to|gether, thou wilt find that the notes and the text do help one another: when thou reade&s;t the book &s;ome of the notes will &s;erve thee as an opened ca&s;ement in windows, through which thou may&s;t &s;ee more di&s;tinctly that a|far
<PB REF="5">off which he doth &s;ee down without citing his Authorities; &s;ome others of them are as blinds upon windows (not to hinder thy light) but to direct and le|vell thy eyes upwards towards Antiquity with more Infalabili|ty. But take not the Pen-man of the notes as one that herby would detract any thing from the Au|thors worth (who ever he be) for it is ea&s;ily &s;een by his Tract that he knew what he writ, and and we know that tho&s;e who are no Novices in the Common|wealth of Learning upon peru|&s;all of this tract (though many of his authorities are not cited in the very pages) yet can judge of <HI>Hercules</HI> by his foot, and that this Author was of no ordinary &s;tature in Antiquity. The notes then are to prevent &s;uch as are
<PB REF="3">no great proficients in the &s;chool of the Antients from &s;aying, That the Authors <HI>ip&s;e dixit</HI> is the warrant of &s;ome things he writ, and that it hath no other pa&s;&s;able or current autho|rity. If thou finde&s;t faylings here|in, I have but this to &s;ay to thee, <HI>Humanu~ e&s;t errare;</HI> and if thou be more than meer man, then let the Author and the World &s;ee thy perfect work that &s;hall be &s;ubject to no error, and thereby thou wilt gratify mankind more than yet the World hath been Ble&s;&s;ed with in any thing, ex|cept the Bible. But not to make the Porch bigger than the Church, I de&s;ire thee to be can|did, and to read without preju|dice.</P>
<CLOSER><SALUTE>Farewell,</SALUTE>
<SIGNED>J. S.</SIGNED></CLOSER>
</DIV1>
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<DIV1 TYPE="text">
<PB REF="5">
<HEAD>An Hi&s;toricall Di&s;cour&s;e of <HI>Parlia|ments</HI> and other Courts &amp;c.</HEAD>
<P>_AS without doubt ever &s;ince the fir&s;t propa|gation of Mankind on the face of the earth; there were before the Deluge, <HI>Cain</HI> and Cains and proud Giants, and after the Food, <HI>Cham, Nimrod, E&s;au</HI> and &s;uch like mighty Hunters, and injurious Oppre&s;&s;ors of the &s;ervants of God, &s;o from time to time, God out of his pa|ternal care and mercifull providence, hath excited &s;ome of his own, indued and armed with Wi&s;dome, Authority, and power, not only to pre&s;erve his little ones from the greedy and rave|nous jawes of wicked per&s;ecutors, but al&s;o after a &s;ort to re&s;i&s;t theire cruelty and cha&s;ti&s;e them for their exce&s;&s;e and &s;ury.</P>
<PB N="2" REF="6">
<P>For we read in <HI>Gene&s;is</HI> that <HI>Adam;</HI> immediatly after his Fall, had two &s;ons <HI>(to wit) Abell</HI> and <HI>Cain,</HI> whom he taught in the knowledg of God; and <HI>Cain</HI> was a wicked per&s;on and &s;lew his Brother, of which it grieved him not t<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">ll God had afflicted him with the fire and torment of his Con&s;cience, and then he cried out <HI>Maior e&s;t paena mea quam ut &s;u&s;tinere pos&s;im. Gen.</HI> 4.13. After <HI>Cain,</HI> &s;ucceeded <HI>Lamech</HI> (born in the hou&s;e of <HI>Cham</HI>) who corrupted the in&s;titution of Marriage, by ta|king to his Wives <HI>Adah</HI> and <HI>Zilla.</HI> And be&s;ides them, many others lived im|piou&s;ly, even to the dayes of <HI>Noah,</HI> when all the Earth was corrupted; wherefore God de&s;troyed all mankind with the re&s;t of the Creatures from the face of the Earth, except <HI>Noah</HI> and tho&s;e that were with him. <HI>Gen.</HI> 7.23. And againe after that deluge, when the Earth was repleni&s;hed with a mul|titude of people, and con&s;equently con|tentions were become &s;o numerous, that there was not found any one able to determine of their plaints and &s;uites, nor place &s;patious enough to
<PB N="3" REF="6">hear the &s;uitors: then according to <HI>Jethroes</HI> coun&s;ell to <HI>Mo&s;es,</HI> the ju|ri&s;diction or charge of Admini&s;tring Ju&s;tice was divided among very many, and &s;everall places a&s;&s;igned for that e&s;|peciall purpo&s;e, that the people, as from &s;o many Conduit-pipes, the <HI>aquam vitae</HI> the Law, that fountaine wherein the life and liberty of the people is con&s;er|ved, might receive.</P>
<P>Wherefore the I&s;raelites, that were the fir&s;t people to whom any written law was given, were wont to pronounce their Iudgments in the gate of every Citie, that the plainne&s;&s;e and indiffe|rency of their proceedings might ap|peare; &s;o that none might need to go out of the right way to &s;eek for Iu&s;tice, and of purpo&s;e to &s;hew, that Iudgment was a divine thing; then afterwards in <HI>Curia &amp; Foro</HI> the Athemians al&s;o in their temple called (by rea&s;on of a &s;pe|ciall Iudgment) <HI>Areopagus,</HI> and in the place called <HI>Palladium et Pritaneum:</HI></P>
<P>And albeit that the Caules, our neighbours (now called French-men) did hold their A&s;&s;emblies for ju&s;tice, only at <HI>Charnute</HI> and <HI>Charters,</HI> a place
<PB N="4" REF="7">&s;cituate in the mid&s;t of their Country that all the people might have indiffe|rent re&s;ort; after which order al&s;o the Brittons of this Iland did make their meetings, as it may well be gathered out of <HI>Cae&s;ars Commentaries,</HI> where he plainly writeth, that the&s;e <HI>Druides</HI> (which then were the Iudges among&s;t the <HI>Galls</HI>) had fetched that their man|ner of di&s;cipline out of <HI>Brittaine,</HI> where we now dwell; yet Nevertheles the Saxons our Ance&s;tors (which &s;uceeded them in this country) they retained the manner of the old Germans their owne elders (who as <HI>Tacitus</HI> writs <HI>Jura per pagos vico&s;que reddebant</HI>) and they made di&s;tribution of Iu&s;tice not in one towne or in the princes palace; but al&s;o &s;undry other &s;peciall places within the country.</P>
<P>And truly the <HI>Normans,</HI> that invaded the po&s;terty of the &s;ame Saxons here did not &s;o much after the &s;ub&s;tance, as the name of this the Saxons order, which they found at their comming higher, for (in effect) they did but al|ter the word Gemote (which in the Saxon tongue &s;ignified in <HI>a&s;&s;embly</HI> or
<PB N="5" REF="7">meeting together, into the french word <HI>Court</HI> or <HI>Cour</HI> (for &s;o it is al&s;o found written) being a term of the &s;elf &s;ame force and &s;ignification.</P>
<P>This court (or <HI>Cour</HI>) therefore is derived of the latin <HI>Curia,</HI><NOTE PLACE="marg"><HI>Cooke Epi&s;t to his</HI> 4 <HI>In|&s;tit.</HI> Curia a cura qui a e&s;t locus ubi publi|cas curas gerebant, <HI>or</HI> Curia <GAP DESC="foreign"> <HI>from the Lord, and &s;o it is the Ks. Court or</HI> Palati|um Regi|um.</NOTE> which al&s;o is fetched from <HI>Cura,</HI> (as <HI>Valla</HI> wri|teth) whereby is notified, that heed and care ought to be taken in the deci|dings of Controver&s;ies: it &s;ignifieth properly both the a&s;&s;embly of men for the hearing of cau&s;es in variance, and the place al&s;o where that a&s;&s;embly is made; According to the fir&s;t of which &s;ignifications, the Saxons as I &s;aid, cal|led it Gemote a meeting, of <HI>Gemettan,</HI> to meet, and agreeably to the &s;econd, the kings hou&s;e was fir&s;t called a Court, becau&s;e the cheife Court of Iu|&s;tice was holden there.</P>
<P>But now of Courts &s;ome were called eccle&s;ia&s;tical, &s;ome Lay, and other &s;ome mixed (that is to &s;ay) both eccle&s;ia|&s;ticall and Lay.</P>
<P>Of this la&s;t &s;ort I find but one name|ly the high Court of Parliament, which I call mixed, becau&s;e it had the Bi&s;hops ioyned with the lay Lords to make up
<PB N="6" REF="8">the &s;econd e&s;tate thereof, the fir&s;t e&s;tate con&s;i&s;ting of the Prince alone, and the third of the Commonalty, without any of the Clergy at all.</P>
<P>Of which Court, albeit it was rather &s;ommoned to devi&s;e and create, reforme and repeale laws, than to put them in execution: yet fora&s;much as it both mini&s;tred the matter whereupon all the other Courts do work, and had in &s;ome cau&s;es ordinary juri&s;dictions al&s;o, I will &s;peake fir&s;t, and then per&s;ue my divi&s;ion.</P>
<P>That which wee now (agreeing with the Scotts and Iri&s;h) do call a Parliament, the Frenchmen do call <HI>Les E&s;tates</HI> or <HI>a&s;&s;emble de les e&s;tates,</HI> becau&s;e with them there (as with as al&s;o) the King, Nobilitie and Commons (which be the three E&s;tates of the land) do meet thereat to con&s;ult: and the &s;ame in Germany is termed a Dyet: for the&s;e other Courts that carry the name of Parliament in France, be but ordinary Courts of Iu&s;tice which as (<HI>Paulus Jo|vius</HI> writeth) are thought to have been planted by us, (and of which our own Councels e&s;tabli&s;hed in <HI>Wales,</HI> and in the
<PB N="7" REF="8">North parts do beare the neare&s;t &s;hew and re&s;emblance.)</P>
<P>This word Parliament (&s;aith one) is Compounded of <HI>parium</HI> and <HI>lamentum,</HI> becau&s;e (as he thinketh) Peeres of the country did at tho&s;e meetings lament and complain each to other of the enor|myties of their country, and thereupon provided redre&s;s for the &s;ame, but this is not very credible.</P>
<P>But their opinion is more probable (as I think) which derive the Par|liament &s;imply from the French word Parler, and that al&s;o from the Greeke <GAP DESC="foreign"> both &s;ignifying to&s;peake, and &s;o by adding the termination, <HI>mem</HI> (which is common in the french tongue, as well to many nounes, as adverbs) do make up Parliament, meaning thereby an A&s;&s;embly of men called together to &s;peake, or confer of their advice and opinion, and &s;o al&s;o it may not unfitly be called Parliament for that every man there doth or &s;hould &s;peake his mind: but <HI>Laur. Valla</HI> mi&s;liketh that kind of Etymologie,<NOTE PLACE="marg">Cooks <GAP DESC="illegible" RESP="UOM" EXTENT="1 word"> &s;tit. fol<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter"> 110. &s;e<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter"> 164.</NOTE> yet my Lord Cooke &s;aith that it comes from <HI>parler lament,</HI> to &s;peake ones mind
<PB N="8" REF="9">and his authority is not mean.</P>
<P>I will not take upon me to &s;et downe the very time,<NOTE PLACE="marg">The begin|ning of the word Par|liament.</NOTE> in which the word Par|liament came fir&s;t in u&s;e, but fora&s;much as it was tran&s;ported out of <HI>France,</HI> it is not unprobable to gue&s;&s;e that it began here &s;hortly after the time of the Nor|man Conque&s;t, One of the mo&s;t au|thentique reports,<NOTE PLACE="marg">The name Parliament was u&s;ed before the conquest in the time of <HI>Edw.</HI> the Confe&s;&s;or, <HI>Cooke 1</HI> In&s;tit. &s;ect. <HI>164</HI> page <HI>110</HI></NOTE> that I think can be &s;ound of that name Parliament, is in the &s;tatute made 3. E. 1. and common|ly called&mdash;where that a&s;&s;embly is &s;aid to be <HI>le Primer</HI> Parliament generall, <HI>a|pres coronement le Roy</HI> but yet that is not the very fir&s;t u&s;e of the word, for in the &s;tatute called <HI>Articuli clori</HI> and publi&s;hed 9. E. 2. the&s;e words are read among&s;t others, <HI>Tempore progenitorum no&s;trornm, quondam regum Angliae in diver&s;is Parliament is &s;u is, &amp;c.</HI> which word <HI>progenitorum</HI> and <HI>quondam regum</HI> mu&s;t needs reach higher than to E. 1. that was but father to him that &s;pake it.</P>
<P>So that I can willingly herein &s;ub|&s;cribe to the opinion of <HI>Polydore Virgill</HI> who in the eleaventh book of his Eng|li&s;h hi&s;tory which contayneth the raigne of King Henry the fir&s;t, that was
<PB N="9" REF="9">&s;on to the Conqu. writing of the great a&s;&s;embly at <HI>Sali&s;bury,</HI> &s;aith thus, <HI>at illud appo&s;ite habeo dicere reges ante haec tem|pora non con&s;ueui&s;&s;e populis conventum con&s;ultandi cau&s;a, ni&s;i perraro facere, adeo ut ab Hemico id in&s;titutum jure mana&s;&s;e dici po&s;&s;i<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">, &amp;c.</HI> and a little after, <HI>more galico vulgo Parliamentum appel|lant &amp;c.</HI> and this is &s;o much the more credible, as that King laboured by all meanes, and e&s;pecially by re&s;titution of the antient, lawes, (as all hi&s;tories do agree) to heale the hearts of the Eng|li&s;h men, which were before deeply wounded by the oppre&s;&s;ions of his fa|ther and brother <HI>William,</HI> to the end that he might thereby the better keep the Crowne, of this Realme again&s;t his elder brother <HI>Rob.</HI><NOTE PLACE="marg">Witenage Mote Mi|chall Si|noth, <HI>and</HI> Michell Gemote, <HI>names, of Parliament before the Conque&s;t.</HI> Cook <HI>In|&s;lit. fol.</HI> 110</NOTE> who both had good right, and had moved his claim there|to: but what time &s;oever this Court be|gan to be called by the name of Parlia+ment, this is certaine, th<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">t the &s;ame was before known to the Saxons (or Engli&s;h men) &s;ome times by the word <HI>Sinoth</HI> and <HI>Micell Sinoth,</HI> of the Greeke <HI>Synodos</HI> (now appropriated to eccle&s;i|a&s;ticall meetings only, and &s;omtimes
<PB N="10" REF="10">by the&s;e tearmes, <HI>micel-zemoce wizena|zemoze</HI> and <HI>aupa-picena zemoze,</HI> (that is to &s;ay) the great meeting, the meet|ing of all the wi&s;e men, for <HI>wizan</HI> &s;ig|nifieth a wi&s;e man, and <HI>Gemote,</HI> a meeting: of which la&s;t word the names <HI>Shiyremoote, folemoote,</HI> and <HI>halymoote</HI> (that is to &s;ay) the a&s;&s;embly or meeting of men of a Shire of the men of a Towne and of the tenants of a Hall (or Man|nor) had their beginnings al&s;o. And as <HI>Synoth</HI> is more u&s;ed in the acts of Par|liament them&s;elves, &s;o <HI>Gemote</HI> is more familiar to the hi&s;tories: thus much as well of the pre&s;ent as of the antient u&s;uall name, now let us looke, into the thing it &s;elf.</P>
<P>Like as in warr where the King is pre&s;ent in per&s;on,<NOTE PLACE="marg">The confor|mitie and the rea&s;on of the E|&s;tates in Parliament</NOTE> and with him the Nobilitie, Gentry, and Yeomonry, there is the force and pui&s;&s;ance of the Realme: even &s;o in peace, where&s;oever is the prince (as the head) to give life (that is to &s;ay, yield the highe&s;t and the la&s;t a&s;&s;ent, and where the Baro|nie con&s;i&s;tting of the Lords &s;pirituall and temporall, and the Commonalty made up of the Knights and Burge&s;&s;es)
<PB N="11" REF="10">be (as the body) pre&s;ent at his comman|dement, to deliberate, conferre, con|&s;ult and con&s;ent, there is al&s;o the Coun|cill and policie of the Realme, &s;o that fora&s;much as every man, (from the highe&s;t to the lowe&s;t) is there either in per&s;on or by procuration, therefore of right every man is &s;aid to be bound by that law vvhich doth pa&s;&s;e from &s;uch an a&s;&s;embly.</P>
<P>And this frame of policie, is both Na|turall and Harmonicall: 1. Naturall, in that it hath an imitation of the naturall body of man, truly called <GAP DESC="foreign"> a little vvorld, out of the 3 cells vvhereof, namely, the <HI>head, brea&s;t</HI> and <HI>belly,</HI> the vvhole three povvers of the &s;oule do open and utter them&s;elves:</P>
<P N="2">2 Harmonicall, becau&s;e from &s;uch and &s;o tuned a Ba&s;e, Meane, and Treble;<NOTE PLACE="marg">The begin|ning of the Parliament</NOTE> there proceedeth a mo&s;t exqui&s;ite con|&s;ent and delicious melody, the begin|ing of vvhich manner of con&s;ultation,<NOTE PLACE="marg">Parlia|ments hol|den long before the Conque&s;t. <HI>Mirror</HI> c. <HI>8</HI> &s;ect <HI>2</HI></NOTE> and namely, vvith us of this Realme I &s;ee not hovv I can derive it from any other time then from that in vvhich the Germans or Engli&s;h nation did &s;et their fir&s;t foot on this land to in|vade
<PB N="12" REF="11">vade it, for <HI>Cornelius Tacitus</HI> vvriteth thus <HI>nec regibus infinita pote&s;tas, de mi|noribus rebus principes con&s;ultant, de ma|ioribus omnes.</HI></P>
<P>Neither did they (together vvith the change of the &s;oile) make change of this their vvonted manner of deli|beration: for it is yet extant in monu|ments left behind them,<NOTE PLACE="marg">The con<GAP DESC="illegible" RESP="UOM" EXTENT="2 letters">|nuance of the Parlia|ment untill the Con|que&s;t.</NOTE> that after their coming hither, they frequented the &s;ame order in coun&s;elling vvhich they had u&s;ed in their ovvne countrey be|fore,<NOTE PLACE="marg">The&s;e two Kings are great exem|plars of grave wi&s;|dom, and would not tru&s;t their own judge|ments in a <GAP DESC="illegible" RESP="UOM" EXTENT="2 letters">tter of &s;o <GAP DESC="illegible" RESP="UOM" EXTENT="2 letters">gh con|cernment, but con&s;ul|ted their wi&s;emen a|bout it knowing that <HI>plus vident o|culi quam oculus.</HI></NOTE> for proofe vvhereof I might call <HI>Beda</HI> the Saxon hi&s;toriographer to vvittne&s;&s;e, vvho (reporting that the Chri&s;tian faith tooke roote by little and little among&s;t them in their particular Kingdomes vvithin this land) vvriteth that King <HI>Edwyne</HI> of <HI>Northumberland</HI> vvould not embrace the preaching of the Go&s;pell before he had <HI>communed and con&s;ulted with his freinds and Nobility,</HI> and Wi&s;emen, and that <HI>Sigeberth</HI> the King of <HI>Ea&s;t&s;ex,</HI> being likevvi&s;e moved to be baptized, did fir&s;t call a <HI>Councell of his &s;ubiects,</HI> and finding them all to favour the motion, did then him&s;elfe al&s;o a&s;&s;ent unto it.</P>
<PB N="13" REF="11">
<P>But becau&s;e the Synodes (or Parlia|ments) them&s;elves be mo&s;t faithfull witne&s;&s;es of their owne doings, and for that al&s;o the kingdome of the <HI>we&s;t &s;ax|ons</HI> prevailing over the re&s;t, and meet|ing (as it were) all their crownes to make on for here&s;elfe, did in the end be|come mi&s;tre&s;&s;e (or Monarch) of the whole <HI>Heptarchie</HI> (or &s;even King|doms) into which this Land was fir&s;t divided, I will for a while leave hi&s;to|rians, and come to the Synodes, fir&s;t &s;hewing by one or two examples, what per&s;ons were wont to be pre&s;ent at the parliament of that kingdome, and then confirming the like to have been u&s;ed, after &s;uch time as the whole land was reduced to one entire e&s;tate and monarchie.</P>
<P><HI>Ine</HI> the King of <HI>We&s;t&s;ex</HI> who began his reign, about the year of the Incar|nation of our Lord Chri&s;t 712. begin|eth his Parliament thus: I Ine <HI>by Gods guift King of the we&s;t Saxons, with the advice and teaching of</HI> Cenred <HI>my father,</HI> Ireledde <HI>my Bi&s;hop, and</HI> Ercenwold <HI>my Bi&s;hop, and with all mine</HI> Aldermen <HI>and</HI> elde&s;t wi&s;emen <HI>of my people, and al&s;o</HI>
<PB N="14" REF="12">a great a&s;&s;embly of Gods &s;ervants <HI>was carefull concerning the health of our &s;oules, and the e&s;tabli&s;hment of our king|dome &amp;c.</HI> Now let us &s;ee if three e&s;tates of Parliament (that is to &s;ay) the King, the Nobilitie, and Commons, may be&s;ound here.</P>
<P>Fir&s;t the Kings name is expre&s;ly ad|ded, the Noblitie is &s;ignified under the&s;e Bi&s;hops and Aldermen; for be|fore the divi&s;ion of the Realme into Shires, every large Territorie had an Alderman or governor: who was after the allotment into &s;hires for the mo&s;t part an Earle, in token whereof all our Earles to this day do beare the name of one &s;hire or other.</P>
<P>The Commonalty is partly included in the words: <HI>the Elde&s;t wi&s;emen of my people,</HI> which betoken the laytie, and partly in the words, A <HI>great a&s;&s;emblie of Gods &s;ervants</HI> vvhich do notifie the Clergie &s;o called then, as it may ap|peare by the fir&s;t Chapter of the very &s;ame lavves, for that they vvere con&s;e|crated to Gods &s;ervice. And le&s;t any man &s;hould thinke that the&s;e e&s;tates vvere called together more for their
<PB N="15" REF="12">advice and coun&s;ell, to be given to the king, then for any authority (or in|tere&s;t) that they had in making the lavve, the preamble calleth tho&s;e lavves, <HI>our dooms, or Iudgments.</HI> And the pur|veivv &s;aith, <HI>wee bid or command,</HI> in the plurall number, vvhich al&s;o may not be re&s;trained to the King only for honour &s;ake, as vvee novv u&s;e to &s;peake, for he is there named <HI>I Ine,</HI> in the &s;ingular only: Thus much I note once for all. That I be not hereafter troubled to re|peat the &s;ame thing often.</P>
<P>About one hundred yeares after the death of this <HI>Ine,</HI> one <HI>Aldred</HI> a King of the vve&s;t Saxons al&s;o, as he calleth him&s;elfe, but rather King of the Eng|li&s;h men and Saxons (as <HI>A&s;&s;erius</HI> &s;ai|eth that vvrote his life) did as he tel|leth in his preface to his lavves, gather together and put in vvriting certain ordinances made by vvi&s;e men in &s;un|dry Synods of &s;undry former Kings: as namely <HI>Ine</HI> afore&s;aid, <HI>Offa</HI> King of mid|dle England, and <HI>Ethelbert</HI> of Kent, the <HI>fir&s;t chri&s;tned Prince</HI> of all the Sax|on nation; vvhich collection of lavves he al&s;o &s;aieth that he &s;hevved to all his
<PB N="16" REF="13">vvi&s;e men, and they al&s;o thought them meet to be ob&s;erved, but what maketh it to the three e&s;tates (will &s;ome man &s;ay) that the kings and their wi&s;emen (which may well &s;eem to be but their privy Coun&s;ellors) did e&s;tabli&s;h lawes. yes very much: for here the word <HI>Witena.</HI> (wi&s;emen) doth include the Nobilitie and Co~mons becau&s;e they be Coun&s;ellors of the Realme for the time in re&s;pect whereof the a&s;&s;emblie of them was of &s;ome, called <HI>Witena Gemote</HI> a meeting of the wi&s;emen as I told you, And of other it is termed <HI>Commune con&s;ilium Regni,</HI> the comon coun&s;ell of the Realme, and that this mu&s;t be &s;o under&s;tood in this place, I will u&s;e none other argument, then the te&s;ti|monie of <HI>Alfred</HI> him&s;elfe drawne out of the &s;ame place; for he &s;aith (as you have heard) that the lawes of the King <HI>Ine</HI> were made by a Synode of wi&s;emen, and what tho&s;e wi&s;emen were, you here al&s;o under&s;tand by the report of King <HI>Ine</HI> him&s;elfe And the &s;tile of his owne lawes (that is to &s;ay) by the Nobilitie and Comunalty be&s;ides the King.</P>
<P>Furthermore that I lo&s;e not another
<PB N="17" REF="13">advantage offered me by this au|thoritie, I mu&s;t al&s;o gather hereby, That not only the Kings of <HI>Nor|thumberland, E&s;&s;ex,</HI> and <HI>We&s;t&s;ex</HI> u|&s;ed the three e&s;tates in making their Lawes, but al&s;o that they of <HI>Kent,</HI> and <HI>middle England,</HI> maintai|ned the &s;ame order: for King <HI>Al|freds</HI> words (as you &s;ee) are one and the &s;ame for them all, and then con&s;equently their manner was one and the &s;ame through all.</P>
<P>But now that I may at the length leave the&s;e <HI>heptarchies</HI> or petie Kings, and pa&s;&s;e to the <HI>Monarchies</HI> and great ones, the &s;ame <HI>Alfred</HI> af|ter that the whole nation had yeild|ed them&s;elves unto him, and were &s;hrowded under his protection a|gain&s;t the furious &s;torm of the Da|ni&s;h inva&s;ion, did at one time con|clude a peace with <HI>Guthrum</HI> the King of the <HI>Danes,</HI> the &s;tile where|of beginneth thus: <HI>This is the peace that King Alfred and King Gu|thrum and all the wi&s;emen of the Engli&s;h nation have taken &amp;c.</HI> Loe here you &s;ee (<HI>Ealra Witena Gemote</HI>
<PB N="18" REF="14">an a&s;&s;emblie of all the wi&s;emen) After him, <HI>Edward</HI> called his wi&s;e|men to <HI>Exce&s;ter,</HI> and con&s;ulted with them for the better ob&s;ervati|on of the peace of his own Realm, And he al&s;o at another time by the advi&s;e of his wi&s;emen renued and confirmed the league that <HI>Alfred</HI> had before taken with the Dani&s;h Captain.</P>
<P>King <HI>Ethel&s;tane</HI> concludeth his famous Parliament holden at <HI>Grateley</HI> thus: All this was ordai|ned in that great Synod at <HI>Grate|ley,</HI> at the which was the Arch-Bi&s;hop <HI>Walfhelme</HI> with all the No|blemen and Wi&s;emen, that King <HI>Ethel&s;tane</HI> gathered together, and the &s;ame King did al&s;o afterward call another a&s;&s;emblie of his wi&s;e|men, to Exce&s;ter to con&s;ult for the better execution of tho&s;e former Ordinances.</P>
<P><HI>Edmond</HI> the King &s;ummoned a great Synod at <HI>London</HI> both of the order of the Spiritualty and Tem|poralty, the which (in the &s;econd part of the Law there made)
<PB N="19" REF="14">he called by a generall name, his <HI>(Witena)</HI> wi&s;emen, and thank|eth them all for their help in that advice.</P>
<P>And after him King <HI>Edgar</HI> pub|li&s;hed certaine lawes which were made (as he &s;aith) by the Coun|&s;ell of his wi&s;emen.<NOTE PLACE="marg"><HI>K. Edgar made lawes</HI> frequenti &s;enatu, <HI>he began to raign,</HI> 959. Lambard. <HI>f.</HI> 62. Etheldred <HI>had</HI> con&s;i|lium &s;api|entium <HI>and be began to raign</HI> 979. Lam. <HI>f.</HI> 88.</NOTE></P>
<P>The like title and conclu&s;ion have tho&s;e &s;tatutes al&s;o which King <HI>Etheldred</HI> ordained at <HI>Wood&s;tock</HI> and the league which he made with <HI>Anlaf,</HI> another of the Captaines of the Dani&s;h armie, is intituled to be made by him and his wi&s;emen.</P>
<P>And certain other acts there be (though hitherto not imprinted) of a Parliament that was a&s;&s;embled in the yeare of Chi&s;t 1008. which fell under the raign of the &s;ame King, which are there reported to have pa&s;&s;ed under the <HI>authority of the King and his wi&s;emen,</HI> both &s;pirituall and lay, in which &s;aid la&s;t ordinances, this one thing for this purpo&s;e is worthy of ob&s;erva|tion: That whereas in the begin|ning of the lawes all the acts are
<PB N="20" REF="15">&s;aid to pa&s;&s;e from the King and his wi&s;emen both of the Clergie and Laytie,<NOTE PLACE="marg"><HI>It is al&s;o &s;uppo&s;ed that the</HI> &s;e|natus con|&s;ultum de monticolis Walliae, <HI>was in this Kings time, the title is</HI> Con&s;ultum quod An|gliae &s;api|entes &amp; Walliae con&s;iliarij de monti|colis fece|runt. Lamb. 94.</NOTE> in all the body and proce&s;&s;e of the law each &s;tatute &s;aith thus: <HI>And it is the advice of our Lord and his Wi&s;emen</HI> &s;o (as it &s;eemeth plainly) that it was then a recei|ved &s;peech, to &s;ignifie both the Spi|ritualty and Laity that is to &s;ay the Nobility and Comons, by the onely word, <HI>Witena.</HI> (or Wi&s;emen.)</P>
<P>Finally tho&s;e lawes of the great King and Monarch <HI>Canute</HI> or <HI>(Knoate)</HI> which he made at <HI>Win|che&s;ter</HI> and be yet remaining, do beare face and te&s;timonie that they were made by him and his <HI>wi&s;e|men:</HI><NOTE PLACE="marg"><HI>Se of this</HI> Guliel. Lamb. 97.</NOTE> And there is an antient writ|ten treati&s;e intituled <HI>Modus tenen|di parliamentum tempore regis Ed|wardi filii Etheldredi</HI> to be &s;een in many hands, purportng the very order, forme: and manner of all this &s;tately Court and A&s;&s;emblie.</P>
<P>Now as the&s;e written authorities do undoubtedly confirm our a&s;&s;er|tion of the continuance of this manner of Parliament, &s;o is there
<PB N="21" REF="15">al&s;o unwritten law (or pre&s;crip|tion) that doth no le&s;&s;e infallibly uphold the &s;ame: for it is well known that in every quarter of the Realm a great many <HI>Bo|roughs</HI> do yet &s;end Burge&s;&s;es to the Parliament, which neverthe|le&s;&s;e be &s;o antiently, and &s;o long &s;ince decayed and gone to naught, that it cannot be &s;hewed that they have been of any reputation at a|ny time &s;ince the Conque&s;t, and much le&s;&s;e they have obtained that priveledge by the Grant of the King &s;ucceeding the &s;ame; &s;o that the in|tere&s;t they have in Parliament groweth by an ancient u&s;age before the Conque&s;t, whereof they cannot &s;hew any beginning which thing al&s;o is confirmed by a contrary u&s;age in the &s;elfe&s;ame thing: for it is likewi&s;e known, that they of <HI>ancient demea&s;ne</HI> do pre&s;cribe in not &s;ending to the Parliament, for which rea&s;on al&s;o they are neither contributaries to the wages of the Knights there, neither are they bound by &s;undry Acts of Parliament
<PB N="22" REF="16">though the &s;ame be generally penned and do make no exception of them.</P>
<P>But there is no ancient Demea&s;ne &s;aving that only which is de&s;cribed in the book of <HI>Dome&s;day</HI> under the title of <HI>Terra Regis,</HI> which of ne|ce&s;&s;itie mu&s;t be &s;uch as either was in the hands of the <HI>Conquerour</HI> him&s;elfe (who made that booke) or of <HI>Edward</HI> the Confe&s;&s;or that was before him.</P>
<P>And &s;o again if they of ancient demea&s;ne have ever &s;ince the Con|que&s;t,<NOTE PLACE="marg">Mirror, c. <HI>1.</HI> &s;ect. <HI>2.</HI></NOTE> pre&s;cribed not to &s;end Bur|ge&s;&s;es to the Parliament, then (no doubt) there was a Parliament before the Conque&s;t, to the which they of other places did &s;end their Burge&s;&s;es; which &s;eeing it is &s;o, let us come neerer and examine whether the &s;ame order have con|tinued &s;ince that time or no.<NOTE PLACE="marg">The conti|nuance of Parliament after the Conque&s;t.</NOTE></P>
<P>To looke for a Parliament (a&s;&s;em|bled of the Engli&s;h nation and Commons) &s;oon after the Conque&s;t were but to labour without ex|pectation of good &s;peed; for <HI>Silent
<PB N="23" REF="16">leges inter arma.</HI><NOTE PLACE="marg">There were in the time of, and &s;ince the conque&s;t in the raigns of H <HI>1.</HI> K. Stephen H. <HI>2.</HI> R. <HI>1.</HI> K. John H. <HI>3.</HI> &amp;c. <HI>280.</HI> Parliaments and acts made at e|very &s;e&s;&s;ion <HI>Cook 1.</HI> Jn&s;t &s;ect. <HI>164.</HI> p. <HI>110.</HI> See <HI>Polyd. l. 11.</HI> and <HI>Holling&s;h,</HI> p. <HI>354.</HI> of the begin|ning of Par|liaments in England.</NOTE> And during all the raign of the Conquerour either the &s;word was not put up into the &s;cabbard, or if it were, the hand was alwayes upon the hilt ready to draw it again.</P>
<P>So unwilling on the one part were the Engli&s;h men to take the yoak, and more that rather their obedi|ence was to be compell'd, then their opinions to be con&s;ulted, and &s;o haughty on the other part were the Normans victors, that to be called an Engli&s;h-man was in their eye a great contumelie and re|proach.</P>
<P>His &s;on <HI>William</HI> al&s;o did rather pretend in word, &s;ome relea&s;e of the former au&s;terity in government than perform it in deed and ex|perience: But his other &s;on (the fir&s;t <HI>Henry</HI> that ever raigned here) did not only at his Coronation promi&s;e re&s;titution of St. <HI>Edwards</HI> laws (as we call them) but al&s;o delivered out his free Charter of the Grant of the &s;ame; in which (as <HI>M. Paris</HI> reporteth he acknow|ledgeth
<PB N="24" REF="17">that he was crowned by the Common-Councell of the Barons of the Realme of <HI>England</HI> and there it may happily &s;eeme &s;trange to affirm that this was a full Parlia|ment; in the which there is no other mention but of the&s;e Barons only: But if it be con&s;idered, fir&s;t, that the Germans expound and ren|der the word <HI>Baro,</HI> by Freehears, a freeman, then that <HI>Math. Paris</HI> &s;aith that the Citizens of <HI>London</HI> were at that time called <HI>Barons:</HI> And al&s;o that even yet Burge&s;&s;es of the Five Ports do pa&s;&s;e under the &s;ame name of Barons, and that every man (almo&s;t) hath his Court-Baron; It &s;hall not be altogether without ground, to &s;ay that both the Nobility and Com|monalty of the Realme were meant under the&s;e words <HI>(the Barons of the Realm)</HI> the rather becau&s;e that &s;peech is accompanied with the words (Common-Councell) and for that al&s;o, the &s;elfe &s;ame Author doth afterward u&s;e the words <HI>Comunis a&s;&s;en&s;us Baronagii</HI>
<PB N="25" REF="17">when he intendeth to &s;ignifie a ju&s;t Parliament <HI>Ingulphus</HI> who died before 1109. &s;aith <HI>Rex Eldredus convocavit magnates, Epi&s;copos pro|ceres &amp; optimates ad tractandum de publ. negotiis Regni.</HI></P>
<P>Howbeit &s;ince I labour not with a|ny penurie of proof, I wil relinqui&s;h the advantage of this matter, de&s;i|ring only that they may be called to memorie which <HI>Polydore Virgil</HI> hath before acknowledged concerning the re&s;titution of the form of the Parliament made by this very &s;ame King, of whom al&s;o the <HI>Saxon Chro|nicles</HI> of <HI>Peterborough Abby</HI> do te&s;tifie, that in the yeare after Chri&s;t 1123. he &s;ent his writers over all <HI>England,</HI> and bad his <HI>Bi&s;h|&s;hops, Abbots,</HI> and all his <HI>Theignes</HI> (which &s;ignifie a&s;much as Barons before) that they &s;hould come to his <HI>Witena Gemote,</HI> on <HI>Candlemas day</HI> to <HI>Gloce&s;ter</HI></P>
<P>But to leave him, and to leap o|ver <HI>Stephen,</HI> becau&s;e he hath &s;tri|ven longer for the Crown then he enjoyed it. King <HI>Henry</HI> the &s;econd
<PB N="26" REF="18">(&s;aith <HI>Mathew Paris</HI>) in the year of our Lord Chri&s;t, 1185. <HI>Convo|cavit Clericos Regni, &amp; populum cum omni nobilitate apud fontem Clericorum.</HI></P>
<P>And yet again to pa&s;&s;e over his two &s;ons, <HI>Richard</HI> and <HI>John,</HI> whereof the one &s;pent the mo&s;t part of his Raign in battell abroad, and the other in Civill warrs at home. I read in the &s;ame Author, that King <HI>Henry</HI> the third, did in the year of our Lord, 1225. call together <HI>Omnes Clericos &amp; laicos totius regni;</HI> Which a&s;&s;embly the &s;ame writer al&s;o in &s;ome places ex|pre&s;&s;eth by the words <HI>Vniver&s;itas regni,</HI> but what need I to hang long on the credit of Hi&s;torians, &s;eeing from this time downward the authentique writers of the Par|liaments them&s;elves do offer mee pre&s;ent help.</P>
<P>The great Charter of <HI>England</HI> (which pa&s;&s;ed from this King about this time, and for which the Engli&s;h men had no le&s;&s;e &s;triven
<PB N="27" REF="18">than the Trojans for their <HI>Helena</HI>) beareth no &s;hew of an Act of Par|liament, and yet I will prove by the Depo&s;itions of two &s;undry Par|liaments, That it was made by the comon a&s;&s;ent of all the Realme in the time of King <HI>Henry</HI> the third, for &s;o &s;aith the &s;tatute called <HI>Confir|matio Chartae. Anno.</HI> 25. E. 1. in flat Termes, and the &s;tatute made at <HI>We&s;tmin&s;ter Anno.</HI> 25. E. 3. <HI>Cap.</HI> 1. &s;aith, that it was made by the King, Peeres and Commons of the land: in the 20. year of the &s;ame King <HI>Henry,</HI> the &s;tatute of <HI>Mert<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">n</HI> was publi&s;hed, which &s;aith thus. <HI>Provi&s;um fuit &amp; con&s;e&s;&s;um tam a praedictis Archiepi&s;copis Epi&s;|copis, Comitibus, Baronibus quam ab ip&s;o rege &amp; aliis.</HI></P>
<P>And in the 52. yeare of his raign was the &s;tatute of <HI>Marle-bridge</HI> made, <HI>provideat</HI> (as it &s;elf &s;peaketh) <HI>ip&s;o domino rege ac con|vocatis di&s;cetioribus eiu&s;dem Reg|ni tam majoribus quam minoribus provi&s;um e&s;t &amp;. &s;tatutum. &amp;c.</HI></P>
<PB N="28" REF="19">
<P>The &s;tatute of <HI>We&s;tmin&s;ter</HI> the fir&s;t, which was made in the third yeare of E. 1. hath this title. <HI>The e&s;tabli&s;hments of King Edward made by this Councell and by the A&s;&s;ent of the Archbi&s;hops, Bi&s;hops Abbots, Earles, Barons and all the Comonalty of the land thither &s;umo|ned.</HI> The &s;tatute made at <HI>Glouce&s;ter</HI> in the 6. year of the &s;ame Kings raign is there &s;aid to be thus made. <HI>Purrelant le Roy &amp; apelles le pluis di&s;cretes de &s;on Royalme auxi|bien des greinders come des meindres e&s;tablie e&s;t &amp; concordantment orde|nie.</HI></P>
<P>To draw to an end, King <HI>Edward</HI> the &s;econd held a Parliament in the 14. year of his raign wherein are the&s;e words. <HI>Le (Roy per a&s;&s;ent des Prelates, Counts, Barons, &amp; tout le Comunaltie de &s;on Realme en le Parliament &amp;c.</HI> and the like &s;peech hath he in another &s;tatute that he made. <HI>Ne quis occa&s;ionetur pro morte Petri de Gave&s;ton.</HI></P>
<P>I do not think that I &s;hall need
<PB N="29" REF="19">to &s;peake for further proofes a|mong&s;t the Records of Parliaments after this time: for they do from henceforth not only &s;hew them|&s;elves in &s;uch &s;tore and plenty, but al&s;o &s;et forth the &s;everall &s;tates them&s;elves, the duty of their pre|&s;ence, the paines of their default or departure, and &s;undry other cir|cum&s;tances &s;o particularly and plainly, that as I might well be charged (if you would &s;tand up|on them) in a matter not doubt|full to have u&s;ed &s;peech nothing at all needfull: and yet lea&s;t any man &s;hould &s;u&s;pect, that any of the two e&s;tates of this A&s;&s;emblie deri|ved his voice in Parliament from the authority of any of the&s;e later lawes, I mu&s;t leave him to under|&s;tand that in one &s;hort Statute of Parliament (holden in the 5, year of King <HI>Richard</HI> 2. &s;tatute 2. ca. 4. he may reade it 4. &s;everall times plainly &s;poken, that this was done anciently and of <HI>old time.</HI></P>
<P>So that here again al&s;o Pre&s;crip|tion
<PB N="30" REF="20">is ready to &s;erve the turne, and to &s;ay the truth, this one law may &s;tand for an Interpreter of all the re&s;t, for whether they be &s;aid to be made by the King and his Barons, or by the King and his Clergie and Laytie, or by the King and his di&s;creeter men, both great and &s;mall, or by the common. A&s;&s;ent of all the Realme, as I have already &s;hewed, or by the King and his Wi&s;emen, or by the King and his Councell, or his Comon-Councell, or by the King, Earles, Barons and other Wi&s;emen, or after &s;uch other like phra&s;es whereof you may meet with many in the volumes of Par|liament; it cometh all to this one point, namely that <HI>the King his Nobilitie and Commons did ordaine them.</HI></P>
<P>And (which is more) if you &s;hall find any act of Parliament &s;eeming to pa&s;&s;e under the name and authoritie of the King only (as &s;ome have that <HI>&s;hew</HI> indeed) yet you mu&s;t not by and by judge that
<PB N="31" REF="20">it was e&s;tabli&s;hed without the A&s;&s;ent of the other e&s;tates.</P>
<P>To take one example for the re&s;t, The &s;tatute of <HI>Glouce&s;ter</HI> (made the 6. <HI>E.</HI> 1.) &s;peaketh thus: <HI>Our &s;overaigne Lord the King, for the amendment of the land, hath provided the &s;tatutes under-written &amp;c.</HI></P>
<P>But yet the &s;tatutes made at <HI>We&s;tmin&s;ter</HI> (in the 13, year of that King) and the &s;tatute of <HI>Quo Warranto</HI> (&s;et forth in the <GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">0. year of that King al&s;o) <GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">eciting that &s;tatute of <HI>Glouce&s;ter,</HI> do plainly acknowledge; the one, that it was provided by the more di&s;creet men of the Realme, a&s;well of the high as of the low degree being called together; and the other, that it was made by the King, cal|ling together the Earles, Prelates, Barons, and his Councell, And therefore it was well noted by Judge <HI>Brook,</HI> That though <HI>magna Charta,</HI> and &s;undry other old &s;ta|tutes do run in the name of the Prince
<PB N="32" REF="21">only, yet the other e&s;tates are &s;up|plyed in all good under&s;tanding.</P>
<P>Againe whether the forme of an Act be thus. The King with the A&s;&s;ents of the Lords and Com|mons doth e&s;tabli&s;h, or thus: It is enacted at the reque&s;t of the Lords and Commons whereto the King a&s;&s;enteth, or thus: by the A&s;&s;ent of the King, and of the Lords &s;pirituall and Temporall, and of the Commons it is enacted, or thus: It is enacted by the autho|rity of this pre&s;ent Parliament; It is al&s;o all one in effect and &s;ub&s;tance: for the words (<HI>a&s;&s;enteth</HI> and <HI>enacteth</HI>) are <HI>equivalent</HI> in this ca&s;e,<NOTE PLACE="marg">7. <HI>H.</HI> 7.14. &amp; 2 <HI>H.</HI> 7.<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">7.</NOTE> as it is holden 7. <HI>H.</HI> 7.14. <HI>&amp;.</HI> 2. <HI>H.</HI> 7.27. whereas otherwi&s;e the nece&s;&s;itie of the A&s;&s;ent of all the 3. e&s;tates of Parliament is &s;uch, as without any one of them the re&s;t will lo&s;e their labour: For it fell out upon a time, that the King in Parliament willed that a certain man &s;hould be attainted, and &s;hould lo&s;e his hands, whereunto the Lords
<PB N="33" REF="21">a&s;&s;ented. But becau&s;e there was no|thing &s;poken of the Commons, it was adjudged by all the Iu&s;tices (4. <HI>H.</HI> 7.18.) That this was no Acte that might binde,<NOTE PLACE="marg">4. <HI>H.</HI> 7.18.</NOTE> and there|fore the partie was re&s;tored.</P>
<P>Hitherto of the Continuance and A&s;&s;ent of this our fir&s;t and highe&s;t Court,<NOTE PLACE="marg">This Court of Parlia|ment ma|keth, inlar|geth, dimi|ni&s;heth, a|brogateth, repealeth, and revi|veth Lawes &s;tatutes <HI>&amp;c.</HI> concerning matters ec|cle&s;ia&s;ticall, capitall, cri|minall, com|mon, civill, martiall, maritine, <HI>&amp;c. Cook. 1: In&s;t fol. 110. &s;ect. 164.</HI> &s;ee <HI>4. In&s;t. chap. Parlia. ment.</HI></NOTE> whereunto after that I &s;hall have added a word or two of the juri&s;diction thereof, I will proceed to the re&s;t, if all judgements (as <HI>Cicero</HI> &s;aid) be conver&s;ant either in the puni&s;h|ment of offences, or in the deci&s;ion of controver&s;ies, then is the Judg|ment of our Parliament of as ample authority as the a&s;&s;ent of any or all other Courts what&s;oever: for it declareth the lawes that do bind all per&s;ons in all Cau&s;es a&s;well eccle|&s;ia&s;ticall as temporall, whereof you may &s;ee a great many examples in the volume of the old &s;axon Parlia|ments, how &s;trange a thing &s;o ever the popi&s;h Clergie in former times have thought it to be, it hath juri&s;|diction
<PB N="34" REF="22">al&s;o in &s;uch cau&s;es which have need of help, and for which there is no help by any law alrea|dy in force. And whereon the erronious Judgments of any other Courts mu&s;t be rever&s;ed by a high|er authority, this Court doth not only rever&s;e the errors of the upper Bench, formerly called the Kings Bench, which is &s;uperior to all o|ther, but it may al&s;o amend the er|rors committed by the Parliament it &s;elf, if any &s;uch &s;hall at any time appeare.</P>
<P>Eccle&s;ia&s;ticall Courts were ma|ny in number, &amp; diver&s;e in nature, whereof the Chiefe was the <HI>Convo|cation</HI> of the Clergie of the whole nation of <HI>England</HI> and <HI>Wales,</HI> which was a&s;&s;embled together with the e&s;tates of Parliament, and it con&s;i|&s;ted of the Deanes, Chapters, Arch|deacons, Procurators of all the Ca|thedrall Churches, the next were the 2. <HI>provinciall Synods</HI> of <HI>Canter|bury</HI> and of <HI>Yorke,</HI> to the later of the which, there were only three
<PB N="35" REF="22">Bi|&s;hopricks &s;ubject, that is to &s;ay, <HI>Durham, Carli&s;le,</HI> and <HI>Che&s;ter,</HI> and all the re&s;t owed their obedience to the <HI>See</HI> of <HI>Canterbury.</HI></P>
<P>After tho&s;e were the generall Courts of the Arch-Bi&s;hops of <HI>Canterbury</HI> (that is to &s;ay) the <HI>Con&s;i&s;tory</HI> (or Court) of the <HI>Arches</HI> for Appellations, the Court of <HI>Au|dience</HI> (of the Chancellours Court) which was wont to be in the Arch-Bi&s;hops hou&s;e; The <HI>Commi&s;&s;aries</HI> (or the Praerogative) Court (which is now in being) for pro|bate of Te&s;taments, and the Court of <HI>Faculties</HI> for di&s;pen&s;ations; then followed the &s;peciall Courts of this Arch-Bi&s;hop, namely his <HI>Con&s;i&s;to|ry</HI> holden by his Commi&s;&s;ary at <HI>Canterbury</HI> for his diocae&s;&s;e, and la&s;tly the Court of tho&s;e <HI>peculiar Deanaries</HI> which did belong unto him, and do ly in the diocae&s;&s;es of other Bi&s;hopps; The other Arch-Bi&s;hops (and each other Bi&s;hop) had in his owne Dioce&s;&s;e the Court of his <HI>Chancellour,</HI> and the
<PB N="36" REF="23">Court of his Archdeacon or his Officiall.</P>
<P>But fora&s;much as the de&s;cription of the&s;e eccle&s;ia&s;ticall Courts, per|teineth to another learning, (I meane to the Civill and Canon Laws by which they were gover|ned) and do withall require a dou|ble treati&s;e by them&s;elves, I will content my &s;elf with this bare enu|meration of them at this time, and bend my labour to the di&s;covery of the Lay (or temporall) Courts that now have place among&s;t us.</P>
<P>Lay Courts were of two &s;orts,<NOTE PLACE="marg">The &s;orts of Lay Courts in antient time.</NOTE> at the fir&s;t only <HI>ba&s;e,</HI> and <HI>high;</HI> con|cerning the beginning whereof, I read that even as <HI>Mo&s;es</HI> (the &s;pe|ciall mini&s;ter of Ju&s;tice appointed by God) finding him&s;elf unable to &s;u&s;tain the burden of deciding all the Controver&s;ies of the people,<NOTE PLACE="marg">Deut. 1. Exod. 18.</NOTE> did &s;et Judges <HI>over Tribes, Hun|dreds Fifties, and Tenths</HI> of the multitude, to whom he referred the determination of <HI>&s;maller</HI> cau|&s;es, re&s;erving to him&s;elf the know|ledge
<PB N="37" REF="23">of matters that were of <HI>grea|ter</HI> importance; &s;o al&s;o that Sax|on (but Chri&s;tian King of <HI>Eng|land</HI>) <HI>Alfred,</HI> divided his whole Realm of <HI>England</HI> fir&s;t into <HI>Shires,</HI><NOTE PLACE="marg">Divi&s;ion of the Realm for juri&s;. diction.</NOTE> then tho&s;e &s;hires into <HI>Rathes, Rapes,</HI> or <HI>Rideings,</HI> and the&s;e again into <HI>Wapentakes</HI> or <HI>Hundreds;</HI> and la&s;tly, tho&s;e al&s;o into <HI>Leets, Barons,</HI> or <HI>Tything,</HI> and did withall e&s;tabli&s;h juri&s;diction in every of the&s;e, per|mitting to the Reeves or Judges of the lower roomes, authority of hearing <HI>&s;maller</HI> &s;uites, granting <HI>greater</HI> power to the Shiriffs and Aldermen, which have charge of greater A&s;&s;emblyes, and detaining to him&s;elf the deci&s;ion of &s;uch mat|ters as by ju&s;t cau&s;e of appellation, (either for Law or equity,) &s;hould be brought unto him.</P>
<P>This Court of the whole Shire was of two &s;orts, whereof the one then called <HI>Scyre-Gemote,</HI> that is the A&s;&s;embly of the Shire, and now termed the <HI>Sheriffs</HI> turn, was then (as now al&s;o) holden twice in one
<PB N="38" REF="24">year: And this Court was of like juri&s;diction, to the Court of the <HI>Leet,</HI> or of the Boroughs or Ty|thing, as it was then called: The &s;econd and the Hundred Court (then named <HI>Hundre de&s;-Gemote</HI>) was in tho&s;e appointed to be hol|den once in a month at the lea&s;t, and that was of like nature to the <HI>County Court</HI> (which is now kept every month al&s;o) unto the Court Baron antiently called <HI>healgemote,</HI> and corruptly <HI>halymote,</HI> that is (as I &s;aid) 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 &s;o have it.</P>
<P>I read further more in the Laws of the Saxon King <HI>Edgar,</HI> thus: <HI>ne Ge&s;ece nan man Sone Synz &amp;c.</HI> Let no man &s;eek to the King in matter of variance, unle&s;&s; he cannot find right at home; but if that right be too heavy for him, then let him &s;eek to the King to have it lightned.</P>
<P>The very like whereof is to be
<PB N="39" REF="24">&s;een (in effect in the Laws of <HI>Ca|nutus</HI> the <HI>Dane</HI> &s;ometimes King of this Nation al&s;o.<NOTE PLACE="marg">The hygh Court of ju&s;tice be|fore the Con|que&s;t for Laws and equity.</NOTE></P>
<P>Out of which laws I gather four things.</P>
<P>Fir&s;t, that every man had means to u&s;e in the&s;e ba&s;e Courts at home in the Countrey for the recovery of his right.</P>
<P>Secondly, Then that no man ought to u&s;e it out of the County, or to draw his plea from thence without good cau&s;e, both which things lye plainly in the letter of this Law.</P>
<P>Thirdly, that the King him&s;elf hath a high Court of Ju&s;tice where|in it &s;eemeth, that he &s;ate in per|&s;on, for the words be: Let him not &s;eek the King.</P>
<P>And la&s;tly, that the &s;ame Court of the King did judge, not only ac|cording to meer right, and Law, but al&s;o after equity and good con|&s;cience.</P>
<P>For fir&s;t the words be: unle&s;&s;e he cannot find right at home, by which
<PB N="40" REF="25">it is permitted that then he might u&s;e to go to the King for right.</P>
<P>Secondly Again, if that right be too heavy, then let him &s;eek to the King <HI>&amp;c.</HI> whereby it is meant, that he &s;hould have the <HI>rigor</HI> of the Law mitigated by the <HI>con&s;cience</HI> of the Prince, and after this order, and in the&s;e two &s;orts of Courts was all Ju&s;tice admini&s;tred untill the time of King <HI>William the Conque|rour<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter"></HI> during who&s;e reign (as all&s;o under the Government of King <HI>Rufus</HI> his &s;on) it is to be thought, that the ordinary cour&s;e of Ju&s;tice was greatly di&s;turbed, as well by rea&s;on of the inte&s;tine and &s;orraign wars, as al&s;o becau&s;e that the&s;e two Princes governed by a meer and ab&s;olute power, as in a Realm ob|teyned by <HI>Conque&s;t,</HI> but yet it was &s;o farre off, that any of them did ut|terly aboli&s;h the&s;e Courts, That the &s;ame did not only remain du|ring all their times, (how&s;oever put to &s;ilence for the &s;ea&s;on) but al&s;o had continuance afterwards,
<PB N="41" REF="25">and do yet (as they may) here bear life among&s;t us: for, as I &s;aid, tho&s;e ba&s;e Courts of the Shires, Hundreds, Boroughs, and Man|nors, do yet continue in manuer the &s;ame in &s;ub&s;tance that they then were, and that the pleas ought no more to be taken from then now in our dayes (without cau&s;e) then they ought to have been, may evi|dently be proved by the writs of <HI>Tolt, pone accedas. ad Curiam,</HI> and <HI>Recordari,</HI> vhich wee now yet u&s;e, and that to this only end, to remove &s;uits upon cau&s;e out of one Court into another.</P>
<P>The like I may al&s;o affirm of that high Court which then followed the King him&s;elf, for albeit that many particular high Courts be now &s;ince that time advanced, by rea&s;on that the multitude of &s;uits (&s;till increa&s;ing with the iniquity of the age of, the World,) would not &s;uffer them all to be ordered in one place, without both into ler<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">ble delay of matters, and grievous
<PB N="42" REF="26">vexation of men, yet neverthele&s;s if ye will throughly behold the matter, and &s;ubject about which all the&s;e Courts are now occupied, you &s;hall perceive that they are but as it were &s;o many branches &s;prung up out of that one tree or &s;tream derived from the &s;ame &s;pring and &s;ountaine.</P>
<P>For letting pa&s;s tho&s;e Courts of the Country which I have already touched, al&s;o tho&s;e other &s;mall Courts of record that be in <HI>Cityes</HI> and <HI>Townes corporate,</HI><NOTE PLACE="marg">Pipowders of Pies and powldres, that is du&s;ty feet: becau&s;e it is for Tra|vailers to the &s;ayr</NOTE> yea, and the <HI>Pipowders</HI> Court it &s;elf that la&s;teth no longer then the Fayr, All our higher Cours at this day be either Courts of right and Law, or el&s;e of <HI>equity and con&s;cience,</HI> as they then were, although they now require another &s;ubdivi&s;ion, than they then had; And that (if you will) may be this.</P>
<P>The Courts of Law do either handle civil or criminall cau&s;es:<NOTE PLACE="marg">The late divi&s;ion of Lay Courts</NOTE> And the&s;e Civill cau&s;es be either moved between the Lord Pro|tector
<PB N="43" REF="26">and the people of <HI>England</HI> (formerly between the King his tenants and &s;ubiects) or el&s;e be|tween one &s;ubiect and another.</P>
<P>Tho&s;e Courts of Law that hold plea of common or civill matters that grew between the Prince and &s;ubiects be the&s;e.</P>
<P>The Exchequer devi&s;ed for the &s;afe cu&s;tody of the lands formerly called the Crowne lands, and for the faithfull an&s;wering of the reve|nues of the &s;ame. The Court of wards and Liveryes, and the Court of the dutchy of <HI>Lanca&s;ter,</HI> both which are now altered.</P>
<P>And the Chancery Court (at the lea&s;t) &s;o far forth as the &s;ame hath to do with Petitions, traver&s;es &mdash;<HI>de droith</HI> and &s;uch like.</P>
<P>Tho&s;e other Courts of Law that have juri&s;diction of civil or Com|mon Pleas ari&s;ing between, &s;ubiect, and &s;ubiect, be the&s;e. The Common Place or Bench: The <HI>Mar&s;hal&s;ea</HI> for matters hereto&s;ore within the vierge, or limits a&s;&s;igned to the
<PB N="44" REF="27">Kings hou&s;e or Palace: The Admi|ralty Court, which was for marine Cau&s;es: And the <HI>upper Bench,</HI> in time pa&s;t termed the <HI>Kings Bench,</HI> &s;o far forth as it yet doth retain juri&s;diction in matters of debt, A&s;&s;umptions, Actions upon the Ca&s;e, and &s;uch other things properly tryable in the Common Place, and not there.</P>
<P>Criminall cau&s;es do generally belong to the upper Bench, and have formerly belonged to the Starre Chamber, or el&s;e particular|ly do appertaine to the Con&s;tables Court, to the Mar&s;ha&s;ie, Admi|ralty, Goale delivery, Oyer and Detorminer, and Se&s;&s;ions of the Peace. And the&s;e be the Courts of Law that have ordinary re&s;ort and juri&s;diction. The Courts of Con&s;cience be the&s;e, Fir&s;t the Chancery open to all men at all times. Secondly the Court of the <HI>Reque&s;t,</HI> that did hear only the &s;uits of poor men, and of the Prin|ces &s;ervants. Thirdly The <HI>Chan|cellors</HI>
<PB N="45" REF="27">Court, that was within the Exchequer: and Fourthly, two <HI>Councills,</HI> which formerly were e&s;tabli&s;hed, the one in <HI>Wales,</HI> and the other in the <HI>North</HI> Country, both con&s;i&s;ting of <HI>Pre&s;ident</HI> and <HI>Councill,</HI> now taken away, which were like unto tho&s;e which in <HI>France</HI> are called Parliaments, as I &s;aid before.</P>
<P>But now to the end that it may the more evidently appear how, and by what degrees of increa&s;e, the&s;e many Courts have &s;prung out of that one, it is requi&s;ite that I pro|ceede to the hi&s;tory of King, <HI>Willi|am</HI> the Conqueror (where I left) and to de&s;cend from him, down|ward, untill I have &s;et all on foote.<NOTE PLACE="marg">The Court of Exchequer. The Autho|rity of this Court is of originall juri&s;diction without any Commi&s;&s;ion <HI>Cook: 4. In&s;t. c. 11. p. 130.</HI></NOTE></P>
<P>It is confe&s;&s;ed by all writings that the Conqueror after &s;uch time as he had &s;uppre&s;&s;ed the forces of tho&s;e that made head again&s;t him here, did immediatly cau&s;e the whole Realm to be exactly &s;urvey|ed by <HI>Shires,</HI> and <HI>Hundreds,</HI> &s;eve|rally a&s;well for the under&s;tanding
<PB N="46" REF="28">of the woods, pa&s;tures, meadows, and tillage thereof,<NOTE PLACE="marg">The fir&s;t &s;urvey of the King|dome was by <HI>Alfred</HI> about <HI>872.</HI> the Regi&s;ter thereof was kept in his trea&s;ury at <HI>Winche|&s;ter. Dani|ell f. 11.</HI></NOTE> as al&s;o of the profitts of Churches, Mills, Vil|laines, and of all other Commodi|ties what&s;oever. The record of which &s;urvey was then called <HI>Dome&s;day Book,</HI> and was appoynted to be kept in the Exchequer at <HI>We&s;tmin&s;ter,</HI> where it now re&s;teth. And that Court did he then al&s;o newly erect for the ordering of his revenues, after the name of the Exchequer: in <HI>Normandie</HI> it had not only the government of re|venues of the Duke there, but was al&s;o the &s;overaigne Court for ad|mini&s;tration of ju&s;tice among&s;t his &s;ubjects,<NOTE PLACE="marg">Cu&s;tom Normand. 48.52.635.</NOTE> and &s;o continued untill that <HI>Lewis</HI> (the 12. King of <HI>France</HI>) converted it into a Court of Parliament con&s;i&s;ting of Pre&s;i|dent and Coun&s;ellors, and e&s;tabli|&s;hed it at <HI>Roan</HI> in <HI>Normandie,</HI> where it now remaineth: But this his Exchequer in <HI>England</HI> had only the direction of his demea&s;ns and re|ceipts, the admini&s;tration of Com|mon
<PB N="47" REF="28">ju&s;tice continuing &s;till in that other Court of his as it was before his coming hither: For proofe of which matter I call to witne&s;&s;e <HI>Gerva&s;ius Tilberien&s;is,</HI> a learned man that lived &s;o neer to the time of the Conque&s;t, that he confe&s;&s;eth he had talk with <HI>Henry</HI> Bi&s;hop of <HI>Winche&s;ter,</HI> which was &s;on to the Conquerours &s;i&s;ter.</P>
<P>This man was an officer of the Exchequer, here, and penned &s;peci|all dialogues of the ob&s;ervations of the Exchequer which he dedica|ted to King <HI>Henry</HI> the &s;econd, and are yet in the Exchequer in the <HI>Black Booke</HI> there, in the fir&s;t part of which his dialogues, ca. 1. he writeth (for the advancement of the Antiquity of the Exchequer) that it was brought out of <HI>Norman|dy</HI> by the Conquerour; and for the authority of the Court he hath (among&s;t other words) the&s;e following: <HI>Nulli licet &s;tatuta Scac|carii infringere, vel eis quavis te|meritate re&s;i&s;tere, habet enim hoc
<PB N="48" REF="29">commune, cum ip&s;a domini Regis curia, in qua ip&s;c in propria per&s;ona jura decernit, quod nec recordationl, nec &s;ententiae in eo latae, liceat alieni contradicere.</HI></P>
<P>Whereby it is plainly proved, the Court of the Exchequer was at that time a di&s;tinct Court from that Court of the King, in the which he him&s;elf &s;ometimes, and com|monly his ju&s;tice (called then <HI>Prima ju&s;titia</HI>) did u&s;e to &s;it.</P>
<P>The one Court, having autho|rity over the Kings demea&s;ns and receipts (as <HI>Gerva&s;ius</HI> in all that worke at large di&s;cour&s;eth) and the other u&s;ing the power of di&s;tri|buting common ju&s;tice, as his words in this place do &s;ufficiently purport.</P>
<P>And therefore I cannot (but here by the way) note the error of them, which do maintain, that the Exche|quer was (in this time of King <HI>Henry</HI> the &s;econd) a Court of what&s;oever Common pleas for all &s;ubjects, and which for proof of
<PB N="49" REF="29">their a&s;&s;ertion) do alledge the Title of Mr. <HI>Glanvil<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter"></HI>'s book in part thus: <HI>Et illas &s;olum leges continet &amp; con&s;uetudines &s;ecundum quas placi|tatur in curia Regis ad &s;caccarium,</HI> for overthrow whereof, fir&s;t, I &s;ay, that the words of this title be not the words of <HI>Glanvill</HI> him&s;elf, but of that man (what&s;oever he were) that publi&s;hed his book by print. for he entituleth the book thus, <HI>Tractatus de legibus &amp; tempore Reg is Henrici &s;ecundi compo&s;itus, illu&s;tri viro Ranulpho de Glanvill juris regni &amp; antiquarum Con&s;uctudi|num eo tempore periti&s;&s;imo,</HI> which doth plainly di&s;cover, that he &s;pea|keth of <HI>Glanvilla</HI> as of another man, and which al&s;o lived not then but at another time.</P>
<P>Secondly I affirm, that if it were the &s;peech of <HI>Glanvill</HI> him&s;elf, yet (if you will take the re&s;t of his words with you) then you &s;hall &s;ee that they have another meaning: for the words &s;tand thus together, <HI>Secundum quas placitatur in Curia
<PB N="50" REF="30">Regis ad Saccarium &amp; coram Ju&s;ti|ciis ubicunque fuerint:</HI> which words <HI>coram Ju&s;ticiis ubicunque fuerint</HI>) do &s;et forth the other Courts of the King whereof I now &s;peake.</P>
<P>La&s;tly, I undertake to &s;hew, not by the title, but by the Text of <HI>Glan|vills</HI> owne booke, that in his time the Kings Court was one, and the Exchequer another: for through|out his whole worke, he called the Court of Common P<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">eas <HI>Curiam Domine Regis,</HI> And the Stile of the writ therefore is, <HI>quod &s;it coram me vel Ju&s;ticiis meis:</HI> But when he cometh to &s;peake of the Exchequer, he talketh of Acompts to be made to the King there, and of none o|ther matter: as namely in the 7. book <HI>Ca.</HI> 10. where he hath this, <HI>Si dominus Rex aliquam cu&s;todiam alicui commi&s;erit tunc di&s;tingui|tur utrum ei cu&s;todiam pleno jure commi&s;erit, ita quod nullum inde reddere compotum oporteat ad Scae|<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">arium, aut aliter.</HI></P>
<P>But before that I leave the raign
<PB N="51" REF="30">of this King <HI>Henry the &s;econd:</HI> I mu&s;t add this al&s;o, that he in the xxiii. of his raign did (by the ad|vice of &s;ome of his Bi&s;hops) cut the Realm into 6. parts, and to every of the&s;e parts appointed three Ju&s;tices, the which are (by <HI>Henry Bracton</HI>) called <HI>Itinerants,</HI> and in <HI>Brittons</HI> Book, <HI>Ju&s;tices in Eire qua|&s;i errantes,</HI> as <HI>Gervas</HI> of <HI>Tilbery</HI> expoundeth it. The proper names of which Ju&s;tices are &s;et down by <HI>Roger Hoveden,</HI> who al&s;o de&s;cribeth their circuits, not to differ much from the &s;ame that our Ju&s;tices of A&s;&s;ize do now ride.</P>
<P>And &s;o I conclude, that not only during all the time of the Con|querour him&s;elf, of <HI>William</HI> his &s;on, and of his other &s;on <HI>Henry</HI> the fir&s;t, (which was a peaceable Prince, and a maintainer of the antient Laws, and <HI>learned</HI> in them, whereof he had the name <HI>(Beauclark)</HI> but al&s;o under the government of King <HI>Stephen,</HI> and of this <HI>Heury</HI> the &s;e|cond there was one Court follow|ing
<PB N="52" REF="31">the King, which was the place of Soveraign ju&s;tice, both for mat|ter of Law and con&s;cience; and one other &s;tanding Court which was Governe&s;s only of the lands and revenues of the Crown, The fir&s;t of which was then called <HI>Curia Domini Regis &amp; Aula regia,</HI><NOTE PLACE="marg">Bract. fol.</NOTE> for that the Prince him&s;elf did many times fit in per&s;on there, and had Ju&s;tices <HI>(a latere &s;uo re&s;identes)</HI> as <HI>Bracton</HI> &s;aith, namely, his chiefe Ju&s;tice, Chancellour, Con&s;tables, Mar&s;hall, and others. The later was then (as it is now) cal<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">ed <HI>Scac|carium eo quod lu&s;ibilis Scaccarii formam haberet.</HI> If you will give credit to <HI>Garve&s;. Tilber.</HI> or el&s;e it took the name of <HI>Statarium,</HI><NOTE PLACE="marg">Eo quod &s;tabilis et firma effect ibi</NOTE> as <HI>Paulus Aemilius</HI> and (after him) <HI>Polydore Virgil</HI> doth write of it and in this the Prince &s;ate, not per&s;o|nally at any time, but his chiefe Ju&s;tice as Pre&s;ident, and then the Chancellor of the Exchequer the Trea&s;urer and Barons.<NOTE PLACE="marg">The Common Place.</NOTE></P>
<P>And in this manner that high
<PB N="53" REF="31">Court of the King continued untill that <HI>Henry</HI> the third in the 9. yeare of his raign (which was about the time in which he a&s;pired to the age of xxi, years) granted unto his &s;ubjects that great Charter of the liberties of England in the 11. <HI>Ca.</HI> whereof he ordained thus, <HI>Commu|nia placita non &s;equuntur curiam no&s;tram, &s;ed teneantur in aliquo loco certo:</HI> whereupon followed two things, The fir&s;t,<NOTE PLACE="marg">This Court, was in be|ing before this &s;tatute it doth not appeare that it was then newly e. rected by the &s;tat. of M. <HI>Ch.</HI></NOTE> that this Court was directed for the determination of all &s;uch pleas as did not concern the Crown and dignitie of the Prince but were meerly civill, and did belong unto the &s;ubjects be|tween them&s;elves. The &s;econd, that this Court was e&s;tabli&s;hed in a place certain (and that was at <HI>We&s;tmin&s;ter</HI>) to the end that the people might have a &s;tanding Seal of Ju&s;tice wher to they might re|&s;ort for the tryall of their owne cau&s;es, and not to be driven to follow the King and his Court, but only where the matter re|&s;pecte
<PB N="54" REF="32">him.</P>
<P>And after this,<NOTE PLACE="marg">fo. 105.108.</NOTE> all the Writs that are recited in <HI>Henry Bractons</HI> book (which was written in the latter end of the raign of this King <HI>Henry</HI> the third) have this Com|mandment to the partie, <HI>quod &s;it coram Ju&s;ticiariis meis apud We&s;t|mona&s;terium,</HI> and not <HI>coram me vel Ju&s;ticiis meis,</HI> as the former form in <HI>Glanvill</HI> was.</P>
<P>And thus began the Court, which (becau&s;e it hath power over Com|mon-Pleas) wee now call the Com|mon-Place. About this time al&s;o, or not long after, &s;ome other Courts of Ju&s;tice were likewi&s;e opened,<NOTE PLACE="marg">The booke called <HI>Britton</HI></NOTE> as it may partly appear by <HI>Henry Bracton,</HI> but more plainly by <HI>John Britton,</HI> which followed immediatly after him, for in the beginning of the raign of King <HI>Ed|ward</HI> the fir&s;t, this <HI>John Britton</HI> then Bi&s;hop of <HI>Hereford</HI> (who&s;e name Mr. <HI>Bale</HI> in his Centuries (or his Printers) mi&s;taketh and calleth <HI>Bekton</HI>) being &s;ingularly learned
<PB N="55" REF="32">in the Laws of the Realm, did at the commandment of that King, and in his name) compile a book now imprinted and named <HI>Britton:</HI> in the beginning whereof he d vi|deth all juri&s;diction thus: Fir&s;t, that the King him&s;elf had &s;overaign juri&s;diction above all others in his Realm to Judge in all cau&s;es what|&s;oever: Secondly that the Mar&s;hall of the Kings hou&s;e had the place of the King to hear and determine the pleas of the Crown within the verge, and that the Ju&s;tices in <HI>Erie</HI> had like authority in every County once in 7. years. Thirdly, that the Ju&s;tices which followed the King where&s;oever he went and &s;ate in his place, had conu&s;ance of erroni|ous Judgement, Appeals, and other matters of the Crown. Fourthly, That the Coroner of the Hou&s;e|hold had his proper power within the verge and that he and others had the order of weight and mea|&s;ure throughout the Realm. Fiftly, That Sheriffs, Coroners, Hundre|dors
<PB N="56" REF="33">Burge&s;&s;es, Serjeants and Beadles, had (and &s;o have) their Courts within each of their par|ticular limits. Sixthly, That Ju&s;tices (being continually at <HI>We&s;tmin|&s;ter</HI>) have power over Common Pleas. Seventhly, That the Exche|quer at <HI>We&s;tmin&s;ter</HI> had authority concerning the Kings Debts and Feeds, and all things incident there|unto. And La&s;tly, that other Ju&s;ti|ces had the charge of A&s;&s;ize of the deliverance of Gaols in every County,</P>
<P>Fora&s;much as after this di&s;tribu|tion of power to hold plea thus made: &s;ome of the&s;e Courts would not contain them&s;elves within their appointed limits, but &s;ought to enlarge their authority, by u&s;urp|ing juri&s;diction that was appropri|ate to others.<NOTE PLACE="marg">Articuli &s;uper Chartas ca. 3, 4, 5.</NOTE></P>
<P>The &s;ame King did by Parliament (holden in the xxviii yeare of his raign) confirm that great Charter for ever, and in certain articles (as he did call them) &s;et forth up|on
<PB N="57" REF="33">the &s;aid Charter: did then by like authority of Parliament enact, that they of the Exchequer &s;hould not take knowledg of any Com|mon Plea: That the Sene&s;chall (or Steward) and the Mar&s;hall of the Kings hou&s;hould &s;hould not have plea in hearing of tre&s;pa&s;&s;es,<NOTE PLACE="marg"><HI>Sene&s;chall</HI> o&s; <HI>Sein,</HI> a hou&s;e and <HI>Scale</HI> &s;kil|full. So ste|ward, of <HI>Stow</HI> a place and <HI>Wear</HI> a keeper:</NOTE> con|tracts and covenants made within the verge; And the Chancellors and the Ju&s;tice of the Kings Bench (now the upper Bench) &s;hould follow him where&s;oever he went, to the end that he might alwaies have men about him that were able to deliver Law to &s;uch as &s;hould require it.</P>
<P>Hitherto (as you &s;ee) there is no expre&s;s mention in <HI>Britton</HI> either of the Court of Admiralty, the Con&s;tables Court, or the Chance|ry, and therefore it remayneth that we labour to find out from whence they al&s;o fetched their beginnings and that &s;hall we the more ea&s;ily do, if we give heed to this that <HI>Britton</HI> hath already opened, for
<PB N="58" REF="34">he leaveth the &s;overaign juri&s;dicti|on of all cau&s;es in the King,<NOTE PLACE="marg">The Admi|ral<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">y. The Britti&s;h and Sa<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">on Kings had their Chan|cellours, as <HI>Etheldred</HI> who began his raign <HI>978 Edw.</HI> the Con|fe&s;&s;<GAP DESC="illegible" RESP="UOM" EXTENT="2 letters"> had <HI>Re<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">nb<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">ld</HI> for In<GAP DESC="illegible" RESP="UOM" EXTENT="3 letters"> Cha<GAP DESC="illegible" RESP="UOM" EXTENT="3 letters">lor. <HI>Edg<GAP DESC="illegible" RESP="UOM" EXTENT="2 letters"></HI> had <HI>A<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">u<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">ph</HI> and <HI><GAP DESC="illegible" RESP="UOM" EXTENT="2 letters">ded</HI> and <HI>Ed|mund</HI> had <HI>Turk<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">ull.</HI> and K<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">ag <HI>Athe<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">&s;tone</HI> had <HI>Wol|faid</HI> for his Chan<GAP DESC="illegible" RESP="UOM" EXTENT="2 letters">lor <HI>Cooke 4. In&s;t. <GAP DESC="illegible" RESP="UOM" EXTENT="1 letter"> 97.</HI> and <HI>Ethel ba<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">d</HI> had <HI>Turketill</HI> for his Chancelor. about <HI>718.</HI></NOTE> &s;o that what&s;oever the King hath parti|cularly de ivered out to others, his Ju&s;tices Commi&s;&s;ioners and Dele|gats, that &s;till remaineth in him|&s;elf, and was exerci&s;ed either by him&s;elf in per&s;on, or by his Chan|cellour, Councellors of a State, and Ju&s;tices of Law that continu|ally attended on him for that &s;er|vice.</P>
<P>And therefore fir&s;t concerning the Admiralty, I think that the de|ci&s;ion of <HI>marine</HI> cau&s;es was not put out of the Kings hou&s;e and Com|mitted over to the charge of the Admirall untill the time of King <HI>Edward</HI> the third, whereunto I am led partly.</P>
<P>And then (after this &s;ub&s;cription of him and his Queene, and of the Archbi&s;hops and Abbots) one <HI>Re|nibaldus</HI> is named <HI>Cancelarius:</HI> and in the end of all, after the date of the Chreme it is vvritten thus, <HI>Siwardus Notarius ad vicem Reni|baldii
<PB N="59" REF="34">Regiae dignitatis Cancellarii, hanc cartam &s;crip&s;i &amp; &s;ub&s;crip&s;i;</HI> The next year after this King <HI>VVil|liam</HI> the Conquerour gave (by an|other Charter) to the &s;ame Abby &s;undry Lands in exchange for <HI>Wind|&s;or,</HI> the which King <HI>Edward</HI> had be|&s;towed on them; and in the end of this grant he likewi&s;e &s;aith; <HI>Ego Willielmus Dei Gratia Rex &amp; Dux Normannorum atque Prin|ceps Cenomannorum hoc &s;cribi pre|cipi &amp; &s;criptum hoc &s;igno deminicae crucis</HI> &dagger; <HI>confirmando &s;tabilivi no|&s;traeque imaginis &s;igillo in&s;uper a&s;&s;ig|nari curavi.</HI> And then (in order as before) it followeth, <HI>Ego Mauri|tatus Regis Cancellarius favendo re|legi &amp; &s;igillavi.</HI></P>
<P>Hereby it appeareth that the office of the Chancellor then was at the fir&s;t to make and &s;eal the In|&s;truments that pa&s;&s;ed from the Prince, and this I call his originall duty, becau&s;e it cannot credibly be &s;hewed of any hi&s;tory (as I think that ever there was in <HI>Eng|land,</HI>
<PB N="60" REF="35">any of &s;ealing of writings or mention of the name of Chancellor, before the dayes of this <HI>Edward,</HI> who (having &s;pent agreat part of his age in <HI>Normandy</HI>) fir&s;t brought the u&s;e of the Seal from thence into this Nation,<NOTE PLACE="marg">See before of the anti|quity of Chancelors</NOTE> and with it (I &s;uppo&s;e) the name of Chancelor, In who&s;e time al&s;o <HI>Leofricus</HI> the <HI>Britain</HI> is the fir&s;t Chancelor I find named.</P>
<P>For that we learned of the Normans our manner of &s;ealing, <HI>Ingulphus</HI> the Abbot of <HI>Croyland</HI> (which came out of <HI>Normandy</HI> hi|ther, in the Train of the <HI>Norman</HI> Conquerour) a&s;&s;ureth us, writing thus, <HI>Normancii Cyrographorum confectionem, cum crucibus aureis &amp; aliis &s;ignaculis &s;acris in Anglia formari &s;olitam, in Cerae impre&s;&s;ionem mutant &amp;c.</HI> And that the name of him that kept the &s;eal came out of <HI>France,</HI> al&s;o it may be probably conjectured both by the word (which we found nearer to the pro|nunciation of the French than of the Latin) and al&s;o by the office it
<PB N="61" REF="35">&s;elf, which hath been exerci&s;ed in <HI>France</HI> (under the &s;ame name and nature that we u&s;e it) ever &s;ince the time of <HI>Charlemaigne</HI> at the lea&s;t.</P>
<P>And &s;o it is manife&s;t that the Chancelor did bear this name, and had the Charge of the Kings &s;eal and writings both before and in the reign of the Conquerour, the which al&s;o (without all doubt) he hath ever &s;ince continued.</P>
<P>Howbeit when I &s;ay (writings) I do not mean, he had the authority of making originall writs here before the time of the Conque&s;t, for tho&s;e came out of <HI>Normandy</HI> al&s;o, as the very forms of the mo&s;t of them (be|ing expre&s;&s;ed in the book of the <HI>Norman</HI> cu&s;tomes) may leade a man to think; and that rather al&s;o, becau&s;e the <HI>Saxons</HI> (our Ance&s;tors) who&s;e proceedings in Judgment was <HI>deplano,</HI> and without &s;olemn|ty did not u&s;e (&s;o far as I have hitherto ob&s;erved) to call the par|ties by any writ or writing, but to &s;end for them <HI>by certain Me&s;&s;engers,</HI>
<PB N="62" REF="36">which they tearmed <HI>Theins,</HI> that is to &s;ay, Mini&s;ters, or Serjeants, yea, and what that manner of &s;ummo|ning by Writ was brought into u&s;e here, forthwith committed to the Chancellour; For Originall Writs of this time, had this form, <HI>Te&s;te Ranulpho de Glanvilla,</HI> &amp;c. Which was the name of the chief Ju&s;tice of the Kings Court, then under who&s;e &s;ealing they pa&s;&s;ed abroad.</P>
<P>Neverthele&s;s for as much as it is to be read in <HI>Bracton, quod omnia bre<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">ia de pace</HI> (which are prohibiti|ons indeed) <HI>irrotulari debent in Ro|tulo de Cancellaria,</HI> and for that not onely the Statute of <HI>We&s;tmin&s;ter,</HI> the &s;econd (which was made in the 15. year of King <HI>Edward the</HI> fir&s;t, &s;aith in plain words, that the <HI>for me donne in reverter &s;atis e&s;t in u&s;u in Cancellaria,</HI> and hath often mention of the Clerks there; But al&s;o that other Statute of <HI>articu|li &s;uper Chartas</HI> hath the expre&s;s names both of the Chancellour and Chancery, it mu&s;t be confe&s;&s;ed that
<PB N="63" REF="36">the Chancellour had the keeping of the Rolls of Record, and the making out of Writs either at the &s;ame time that the common lace was erected, or not long after, that is to &s;ay, either under the reign of King <HI>Henry,</HI> the third, or el&s;e in the beginning of King <HI>Henry</HI> the third, or el&s;e in the beginning of <HI>Ed|ward</HI> the fir&s;t, which later King (as Judge <HI>Pri&s;ot</HI> reporteth of him) la|boured carefully to reduce our Law into order and writing, and, in mine opinion may therefore not unworthily be accounted our Engli&s;h <HI>Ju&s;tinian.</HI></P>
<P>And albeit that the Hou&s;e of the <HI>Rolles,</HI> which hath been of long time as it were, the Colledge of the Chancery men, was builded at the fir&s;t by the &s;ame King <HI>Henry</HI> the third for another purpo&s;e, namely for the &s;u&s;tentation of &s;uch Jews as would give their names to Chri&s;t, and was thereof called, <HI>Dominus Judeorum conver&s;orum:</HI><NOTE PLACE="marg">Mat. Paris</NOTE> yet that hindreth not, but that the
<PB N="64" REF="37">&s;ame Hou&s;e might &s;hortly after be converted to another u&s;e, upon experience (as it is likely) that &s;ew converts was found among&s;t the Jews to inhabite it; and then thus have you the Chancellour (or now in&s;tead of him the Commi&s;&s;ioners) furni&s;hed with the Seal of Grace, and Seal of common Ju&s;tice, and with him or them the Chancery for the keeping of Records, and the Clerks thereof for the framing of Writs;<NOTE PLACE="marg">Coment. <GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">43.</NOTE> and as touching the au|thority in Judgement, I &s;ee not what Juri&s;diction he had (his Court of Equity and &s;ome powers given by late Statutes onely excepted) which is not incident to the making or keeping of Records, for he could not reform the errour of another Court: yea, errour committed in his own Court was rever&s;ed in the Bench of the King, now called the upper Bench. Neither could he try any I&s;&s;ue taken before him;<NOTE PLACE="marg"><GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">4 E. 1.<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">5.</NOTE> For that al&s;o was and is to be done in the upper Bench as a thing with|out his Juri&s;diction.</P>
<PB N="65" REF="37">
<P>It remaineth then that I &s;peak of this Court of Equity which (in my opinion) is not altogether &s;o anti|ent as others;<NOTE PLACE="marg">O&s; the high Court of Chan|cery.</NOTE> for (as you have heard before) King <HI>Edward</HI> the fir&s;t and the Parliament took order, that the Chancellour &s;hould fol|low the King, even as the Ju&s;tices of the Bench did, to the end that he might alwaies have at hand, all men for his direction in Suits that came before him, the meaning hereof (as I think was) that the Ju&s;tices &s;hould inform him of the Law, and the Chancellour of Equity; for (otherwi&s;e) I &s;ee not what u&s;e he could have of the Chancellour in this behalf: but onely for that he being commonly a Bi&s;hop, or other Spirituall per&s;on (was the more meet) after the opinion of men in tho&s;e dayes) to give advice accor|ding to equity and con&s;cience.</P>
<P>In which re&s;pect al&s;o he was vi|&s;itor for the King, and be&s;towed his Benefices, &s;o that &s;uch as then &s;ought relief by Equity, were Sui|tors
<PB N="66" REF="38">to the King him&s;elf, who (be|ing a&s;&s;i&s;ted with the Chancellour and Coun&s;ell) did mitigate the &s;everity of Law in his own per&s;on, when it plea&s;ed him to be pre&s;ent, and did (in ab&s;ence) either refer it to the Chancellour alone, or to him and &s;ome others of the Coun|&s;ell.</P>
<P>And this continued (if I be not mi&s;taken) untill the 20th. year of the reign of King <HI>Edward</HI> the third, in which year (when he made pre|paration for his wars in <HI>France</HI>) it was enacted by Parliaments that the Chancellour and Trea&s;urer &s;hould determine all complaints again&s;t <HI>extortion of Officers, mainte|nance,</HI> imbracery, and &s;uch <HI>like of|fences,</HI> and albeit that (indeed this authority be neither granted to him&s;elf alone, nor doth plainly e|rect any Court of Equity, yet for as much as it is the very fir&s;t &s;eve|rall power of this &s;ort, that I find committed to him from the King (in which al&s;o it is to be thought,
<PB N="67" REF="38">that the proceeding was extraor|dinary and ab&s;olute, even as the Kings own before was,) I &s;uppo&s;e it to be the laying of the fir&s;t &s;tone of the foundation of the Chancel|lours Court. But after this (in the 36th. year of the &s;ame Kings reign) it was provided by Parliament; That if any were grieved contrary to the Articles of that Parliament, or others, That he &s;hould have remedy in the Chancery without other Suit, by which Law the Chan|cellour was not onely made &s;ole Judge in this newly erected Court, but was enabled &s;o to proceed in Judgement after his own di&s;creti|on, or (otherwi&s;e) the words <HI>(with|out other Suits)</HI> were not Bene|ficiall.</P>
<P>After this al&s;o his authority was inlarged by &s;undry Parliaments, as by one, to award damages upon untrue &s;ugge&s;tion made before him: by another, To &s;end Proclamation of Rebellion again&s;t &s;uch as would not appear: And by others, To
<PB N="68" REF="39">grant Commi&s;&s;ions of divers kinds, and to do many other things, whereof it is not needfull to make rehear&s;all here.</P>
<P>And truly as the&s;e be fir&s;t begin|nings (that I can find) in Statute Law concerning this authority of Chancery Court, &s;o al&s;o I do not remember, that in our reports of Common Law, there is any men|tion of cau&s;es drawn before the Chancellour for help in Equity; but onely from the time of King <HI>Henry</HI> the fourth, in who&s;e dayes (by rea&s;on of tho&s;e Inte&s;tine trou|bles) <HI>Feofments to u&s;es</HI> did either fir&s;t begin (as &s;ome have thought) or el&s;e did fir&s;t grow common &amp; fami|liar as all men mu&s;t agree for reme|dy, in which cau&s;es of <HI>u&s;es</HI> (chiefly) the Chancery Court was then fled unto, as to the onely Altar of help and refuge.</P>
<P>But whence the Court of Equity took a beginning to be a di&s;tinct Court; I have made proof (as I think) that the power thereof was
<PB N="69" REF="39">alwaies in exerci&s;e, and con&s;idering that formerly all the Princes of this Realm, and now the Lord Prote|ctor of this Nation is the immedi|ate Mini&s;ter of Ju&s;tice under God, and &s;worn to deliver to the people <HI>(aequam &amp; rectam Ju&s;titiam)</HI> I can|not &s;ee, how that it may otherwi&s;e be, but that (be&s;ides his Court of meer Law) he mu&s;t either re&s;erve to him&s;elf, or refer to others a cer|tain preemment power, by the which he may both &s;upply the want and correct the rigor of that po&s;i|tive (or written Law which (of it &s;elf) neither is or can be made &s;uch a perfect rule, as that a man may thereby &s;quare out Ju&s;tice in all cau|&s;es that may happen.</P>
<P>For written Laws mu&s;t needs be made in a generality, and be groun|ded upon that which happeneth for the mo&s;t part, becau&s;e no wi&s;dome of man can fore&s;ee every thing in particular, which in time experience doth beget, and therefore although the written Law be generally good and ju&s;t, yet (in &s;ome &s;peciall ca&s;e) it may have need of correction, by
<PB N="70" REF="40">rea&s;on of &s;ome con&s;iderable cir|cum&s;tance (falling afterwards) which at the time of the Law making was not for&s;een, whereas (otherwi&s;e) to apply one generall Law to all particular ca&s;es, were to make all Shooes by one la&s;t, or to cut one Glove for all hands, which how un|fit it would prove, every man may readily perceive.</P>
<P>And here of this Equity hath this name in Greek <GAP DESC="foreign">, of <GAP DESC="foreign"> <HI>i. e. &s;ecundum,</HI> and <GAP DESC="foreign"> <HI>id e&s;t con|veniens; &amp; a&s;&s;imulatum;</HI> becau&s;e it doth not onely weigh what is ge|nerally meet for the mo&s;t part, but doth al&s;o con&s;ider the per&s;on, time, place, and other circum&s;tances, in every &s;ingular ca&s;e, that cometh in que&s;tion, and doth thereof frame &s;uch a judgement as is agreeable and convenient to the &s;ame, &s;o that (in &s;umme) the written Law is like a &s;tiffe rule of Steel (or Iron) which will not be applyed to the fa&s;hion of the Stone (or Timber) where|unto it is laid; and Equity (as <HI>A|ri&s;tole</HI> &s;aith well) is like to the lea|den
<PB N="71" REF="40">rule of the <HI>Leasbian</HI> Artificers which they might at plea&s;ure bend and bow to every Stone of what|&s;oever fa&s;hion.</P>
<P>And hereby it may al&s;o appear, what u&s;e there ought to be a&s;well of the po&s;itive (or written Law) as al&s;o of Equity it &s;elf, for &s;eeing that the po&s;itive or common Law, is made meet for the mo&s;t part, and that Equity is added for help in few or &s;ingular cau&s;es, it followeth by rea&s;on, that commonly and &s;in|gularly the po&s;itive Law, &s;hould be put in ure, and that Equity &s;hould be appealed unto, but onely in rare and extraordinary matters, lea&s;t on the one &s;ide, if the Judge in Equity &s;hould take Juri&s;diction over all, it &s;hould come to pa&s;s (as <HI>Aristotle</HI> &s;aith) that the be&s;t &s;hould bear rule (for &s;o he calleth man who&s;e judgement (if it be not re&s;trained by the chain of Law) it is common|ly carried away with unruly affecti|on, and on the other &s;ide, if onely &s;treight Law &s;hould be admini&s;tred, the help of God (which &s;peaketh
<PB N="72" REF="41">in that Oracle of Equity, &s;hould be denyed unto men that need it.</P>
<P>And therfore even as two Hearbs being in extreamity of heat, or Cold be (by them&s;elves) &s;o many poi|&s;ons, and yet (if they be skillfully contempered) will make a whole|&s;ome medicine, &s;o al&s;o would it come to pa&s;s, if either this Arithme|ticall Government as they call it) by rigor of Law onely, or this Geo|metricall judgement, at the plea|&s;ure of the Commi&s;&s;ioners onely &s;hould be admitted, And yet if they be well compounded together, a mo&s;t &s;weet and Harmonicall Ju|&s;tice will follow them.</P>
<P>And as a good Chancellour then would not, &s;o the Commi&s;&s;ioners now will not make this Proclama|tion, <HI>Nullus recedat a Cancellaria &s;ine remedio,</HI> and &s;o receive Cogni|&s;ance of every complaint, which &s;hall be made before them upon what&s;oever &s;ugge&s;tion, and there|by both overthrow the authority of the Courts of Common Law, and al&s;o bring in upon men &s;uch a con|fu&s;ion,
<PB N="73" REF="41">and uncertainty, as hardly any man &s;hall know how, or when he &s;hall hold his own a&s;&s;ured, but they will rather have the Common Law to have her ju&s;t honour, and not to be interrupted in her right cour&s;e or current, and will yet withall provide that the Gate of mercy may be opened, in all cala|mity of Suit, to the end that (where need &s;hall be) the rigor 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 Mini&s;try of <HI>our Pro|tector</HI>) he doth not onely leave to us the right u&s;e of the Courts of meer Law, but hath al&s;o hitherto placed in that Praetoritall Room (or Chancery) men no le&s;s lear|ned in the common Laws of the Nation, than accompli&s;hed with the skill of this moderation and equity.</P>
<P>I &s;ee that occa&s;ion is offered me, to enter into the handling of &s;ome few que&s;tious concerning the order of Chancery, and chiefly of this
<PB N="74" REF="42">one, whether it be meet that the Commi&s;&s;ioners &s;hould appoint un|to them&s;elves, and publi&s;h to others any certain rules or limits of equity or no? about the which men Godly and learned have differed in opini|on; For on the one part it is thought as hard a thing to pre&s;cribe equity any certain bounds, as it is to make one generall Law to be a meet mea|&s;ure of Ju&s;tice in all particular cau|&s;es: And on the other &s;ide it is &s;aid, That if it be not known afore|hand in what ca&s;es they will reach forth their help, and where not, then neither &s;hall the people be a&s;|&s;ured how or when they may po&s;|&s;e&s;s their own in peace, nor the practi&s;er of Law be able to inform his Clyent what may become of his action, The later of which opini|ons I hold to be the be&s;t, (accor|ding to the late Regulation of the high Court of Chancery (together with the Common Law) in <HI>Au|gu&s;t</HI> the 22th. <HI>Anno</HI> 1654. by his Highne&s;s the Lord Protector and his Coun&s;ell:) For though equi|ty
<PB N="75" REF="42">cannot be limited; yet as it puts an end to controver&s;ies, it mu&s;t have certain rules pre&s;cribed to it, otherwi&s;e it can neither be called a Court, nor can the Suitors be certain of any relief to be had therein, which Court (were it &s;o) would &s;oon be de&s;troyed.</P>
<P>Becau&s;e this and the like matters be of more difficultie than that I may (with mode&s;ty) take upon me to determine them. And for that al&s;o it is not my pre&s;ent purpo&s;e, to di&s;pute what is convenient to be done in any Court, but rather to di&s;cour&s;e the beginning, and ac|knowledge the benifit of them all, I will onely wi&s;h this one thing. That before any motion &s;hould be made for either the parties Plantiff or Defendant, 4. or 5. dayes notice thereof were left with the Clerk in Court on the other &s;ide, to de|fend that motion, that &s;o he might not be put off to &s;hew cau&s;e from day to day, which rather increa|&s;eth trouble and charges, than ei|ther furthereth the &s;uit for the hea|ring
<PB N="76" REF="43">or benefits the parties in their cau&s;e.</P>
<P>Which thing whether it might be more couvenient than the pre|&s;ent manner of motions, I will leave to the judgement of &s;uch as have more wi&s;dom to devi&s;e, and power to execute; And will &s;um up the re&s;t of our Courts and make an end.</P>
<P>The Court of the Dutchy (or County Palatine of <HI>Lanca&s;ter</HI> (which is by a late Act of Parliament com|mitted to the cu&s;tody of a Com|mi&s;&s;ioner) grew out of the grant of King <HI>Edward</HI> the third,<NOTE PLACE="marg">The Court for|merly cal|led, The Dutchy Court, the juri&s;dicti|on where|of is now commit|ted to a Commi&s;|&s;ioner or Commi&s;&s;io|ners. County <HI>Palatine</HI> of <HI>Lanc.</HI> erected in Parlia|ment <HI>50</HI> E. <HI>3.</HI> and Iustices of A&s;&s;i&s;es Gaole de|livery and of the Peace have been &s;ince the e|rection of it. <HI>Cook lib. 4. f. 204. 205.</HI></NOTE> who fir&s;t gave that Dutchie to his Son <HI>John</HI> of <HI>Gaunt,</HI> and endowed it with &s;uch royall rights as the County Palatine of <HI>Chester</HI> had. And for|a&s;much as it was afterward extin|cted in the per&s;on of King <HI>Henry</HI> the 4th. (by rea&s;on of the union of it with the Crown of the Realm) the &s;ame King (knowing him&s;elf more rightfully) Duke of <HI>Lanca|&s;ter,</HI> then King of <HI>England,</HI> deter|mined to &s;ave his right in the Dut|chy,
<PB N="77" REF="43">what&s;oever &s;hould befall the Kingdom. And therefore he &s;eparateth his Dutchy from the Crown, and &s;etleth it &s;o in the na|turall per&s;ons of him&s;elf and his heirs: as if he had been no King, (or Pollitique Body) at all, in which manner it indured during the reign of King <HI>Henry</HI> the fir&s;t, and of King <HI>Henry</HI> the 6th. that were de&s;cen|ded of him. But when King <HI>Ed|ward</HI> the 4th. had (by recovery of the Crown) recontinued the right of the Hou&s;e of <HI>York,</HI> he feared not to appropriate that Dutchie to the Crown again, And yet &s;o as he &s;uffered the Court, and Officers to remain as he found them.</P>
<P>And in this manner it came (to|gether with the Crown) to King <HI>Henry</HI> the 7th. who liking well of that policy of King <HI>Henry</HI> the fourth (by who&s;e right he al&s;o obteined the Kingdom) made by &s;eparation of the Dutchie as he hath done, and &s;o left it to his po&s;terity.</P>
<P>It appeareth in our Books of the Tearms of King <HI>Edward</HI> the 4th.<NOTE PLACE="marg">The Star Chamber.</NOTE>
<PB N="78" REF="44">and the Report of ca&s;es, happening under the u&s;urpation of <HI>Richard</HI> the third.<NOTE PLACE="marg">This Court was in be|ing before <HI>28 E. 3. Cook lib.</HI></NOTE> That &s;ometimes the King and his Coun&s;ell; And &s;ometimes the Lord Chancellour and other great per&s;onages, did u&s;e to &s;it Ju|diciall in the place (then and lately called) for that it is decked with certain Stats) the <HI>Star Chamber.</HI></P>
<P>But fora&s;much as (be like) that A&s;&s;embly was not ordinary, there|fore the next King <HI>Henry</HI> the 7th. and his Son <HI>Henry</HI> the 8th. took order by two &s;everall Laws; That the Chancellour a&s;&s;i&s;ted (with o|thers there named) &s;hould have power to hear complaints again&s;t <HI>Reteinors, Embraceries, mi&s;demea|nours</HI> of Offices and &s;uch other of|fences, which through the power and countenance of &s;uch as do com|mit them) (do lift up the head a|bove other faults) and for the which inferiour Judges are not &s;o meet to give correction.</P>
<P>And becau&s;e that place was before time dedicated to the like &s;ervice, it hath ever &s;ince al&s;o been &s;o u&s;ed
<PB N="79" REF="44">untill it was taken away in the late King <HI>Charls</HI> his reign.<NOTE PLACE="marg">The Court of Reque&s;ts</NOTE></P>
<P>The Court of the Reque&s;ts being of the &s;ame nature (as I &s;aid) with the Chancery took beginning by Commi&s;&s;ion from King <HI>Henry</HI> the 8. before which time the Ma&s;ters of the <HI>Reque&s;ts</HI> had no warrant of or|dinary Juri&s;diction,<NOTE PLACE="marg">This Court had no warrant by act of Par|liament or pre&s;cripti|on to e&s;ta|bl &s;hit. <HI>Cook lib. 4. fol. 97.</HI></NOTE> but travailed between the Prince and Petitioners, by direction from the mouth of the King.</P>
<P>The &s;ame King al&s;o e&s;tabli&s;hed one Court of Pre&s;ident and Coun|&s;ell in the Marches of <HI>Wales</HI> 34. &amp; 35. H. 8.<NOTE PLACE="marg">The Court of the Mar|ches of <HI>Wales</HI> and that of the North parts were taken a|way in the late K <HI>Ch.</HI> his reign. <HI>Anno 17. Car.</HI></NOTE> And another like Court of Pre&s;ident and Coun&s;ell in the North parts, which Court in <HI>Wales</HI> was a Court of Law in its principall Juri&s;diction, although it did with|all exerci&s;e other powers of equity. by vertue of other &s;everall Com|mi&s;&s;ions that did accompany the &s;ame, and the Court of <HI>York</HI> was in its principall Juri&s;diction Equity, and did exerci&s;e other powers by vertue of other Commi&s;&s;ions.<NOTE PLACE="marg">Court of Wards.</NOTE></P>
<P>The Court of Wards began about
<PB N="80" REF="45">the 32th. year of the reign of King <HI>Henry</HI> the 8, who al&s;o (in the next year after) added thereto the of|fice of the Ma&s;ters of the Liveries, and withall conjoyned the names, ordaining that it &s;hould be called, The Court of <HI>his Wards and Li|veries.</HI></P>
<P>The &s;ame King likewi&s;e had ere|cted one Court of the generall Sur|veiours of his Lands; and one other of the Augmentations and Reve|nues of his Crown; and a third Court of the fir&s;t fruits and Tithes of Benefices. But all the&s;e were af|terwards di&s;&s;olved and (by Queen <HI>Mary</HI>) united to the Court of Ex|chequer. Thus having run along the&s;e Courts deriving them from the Crown, I might proceed yet further to &s;hew the originall and beginnings of &s;ome Courts erected by the late Parliament, and the na|ture and beginning of the High Court of Ju&s;tice that was erected in <HI>Westmin&s;ter</HI> Hall <HI>Anno</HI> 1648. but they being &s;o fre&s;h in the memory of this age, I &s;hall not need to make mention thereof.</P>
<TRAILER>FINIS.</TRAILER>
</DIV1>
</BODY>
</TEXT>
</EEBO>
</ETS>
