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(Preface) Deo, Patriae, Tibi. 3 - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. I 
The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 1.
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(Preface) Deo, Patriae, Tibi.3
Seeing the light touch I gave in my preface to mine eight worke[s] out of consent of historie, hath with the judicious Reader (finding it consonant to judiciall record) wrought so good effect, I will adde somewhat thereunto, which I am persuaded will adde to their satisfaction and solace therein, who do reverence and love (as all men ought) the nationall Lawes of their native countrey. I have a very auntient and learned treatise of the Lawes and usages of this kingdome whereby this Realme was governed about 1100. years past, of the title and subject of which booke the Author shal tel you himeselfe in these words.In Proemio The Book called The Mirror of Justices. Cap. I. §. 1.Which summary I have intituled, The Mirror of Justices, according to the vertues and substances embellies which I have observed, and which have been used by holy Customs since the time of King Arthur, &c. And soon after. The Law whereof this Summary is made, is of antient Usages warranted by holy Scripture; and because it is generally given to all, it is therefore called Common.The Laws warranted by holy Scripture.And for that there is no other Law but this, this alone of Antiquities is by general Councils or Parliaments permitted to be used by holy Usages, &c.
In this Book in effect appeareth the whole frame of the ancient Common Laws of this Realm, as by these few particulars shall appear: As the diversity and distinction of the Courts of Justice (which are Officinae Legis.4 )
Why they be called the Common Laws Counsels general or Parliaments.And first of the High Court of Parliament, which Court is mentionedbefore by the name of Council general, or Parliament, and cap. 1. § 3. King Alfred ordaineth for a Usage perpetual, that twice in the year, or oftner if need be, they shall assemble themselves at London to treat in Parliament of the Government of the People of God,The High Court of Parliament. Cro. Arg. 54. how they should keep themselves from sin, should live in quiet, and should receive right by certain Laws and holy judgments, &c.
2. The Court of Chancery. It was ordained, that every one upon complaint, should have out of the Kings Chancery a Writ remedial, without any difficulty, &c.Cap. 1. §. 3. The Court of Chancery. 5. §. 1. In the time of King Alfred there was no Writ of Grace, but all Writs were remedial, grantable (as of duty) by vertue of an Oath, &c.
Cap. 4. Of Jurisdiction. The Kings Bench.3. The Kings Bench. Chief Justices holding Pleas of the King. And soon after. To the Office of the Chief Justices belongeth, to redress and punish by Writ the wrongful Judgments, Wrongs and Errors of other Justices; and to cause to come before the King the Parties and the Record with the original Writ. And before these Justices are all Writs pleadable, returnable and determinable, where it is mentioned, Before the King himself, &c. It belongeth, also to their Office to hear and determine all Plaints of personal Wrongs done within twelve miles of the King: And to deliver the Gaol of Prisoners deliverable; and to determine all that is determinable by Justices in Eyre, and more or less, according to the nature of their Commission.
Cap. 4. §. eodem. The Court of Common Pleas.4. The Court of Common Pleas. To the Justices of the Bench power is given to take Fines, to hear and determine grand Assizes, Common Pleas, &c.
5. The Court of Exchequer. Moreover the Barons of the Exchequer have Jurisdiction over the Kings Receivers and Bailiffs and of the alienation of the fiefs (or fees) and Rights belonging to the King,Eodem c. §. eodem. The Court of Exchequer. and to the Rights of his Crown, &c.
6. Justiciarii itinerantes,5or Justices in Eire. The Kings do Right to all Men by their Justices, Commissioners itinerant, assigned to have Conusans of all Pleas.Cap. 1. §. 3. The Office of Justices in Eire. In aid of such Eires, the Sheriffs Turns and Views of Frankpledges are necessary. And all those whom the good Men of such Enquests did endite of a capital offence, the Kings were wont to destroy without any Answer; which Usages are yet in practise in Almaigne: But by Warrant of Pity and Mercy (because the frailty of Man cannot refrain from sin, unless God of his Grace give him abstinence) It is accorded, That no Appellee or Inditee shall be destroyed without Answer.
Cap. §. 16. The Sheriffs Turn.7. The Sheriffs Turn, whereof mention is made before. The Sheriffs, of ancient Ordinance, do hold general Assemblies twice a year in every Hundred, whither all the Freeholders, within the Hundred are bound to come by the service of their Fiefs (or Fees) that is to say, once after Michaelmas, and another time after Easter. And because the Sheriffs, for the doing hereof, make their Turns (or Courses) through the Hundred, such Assemblies are called the Sheriffs Turns. Where, it belongeth to the Sheriffs, to enquire of all Offences personal, and of all the circumstances of Offences done in those Hundreds; and of Wrongs done by the Kings and Queens Ministers; and of Wrongs done to the King and to the Commonalty, according to the Articles aforesaid in the Divisions of Offences.
Cap. 1. §. 17. De Views de Frankpledge.8. Leets on Courts des Views de Frankpledge. Concerning these Assemblies, first it is thus ordained, That every Hundredor shall assemble once a year; and not only Freeholders, but all of the Hundred, as well Strangers as Denizens, from twelve years upwards (except Archbishops, Bishops, Abbots, Priors and all Religious People and Clerks, Eàrls, Barons and Knights, married Women, persons dumb and deaf, Diseased, Bastards and Lepers, and those that are Deciners elsewhere) to enquire of the points aforesaid, and of the Articles following; and that not by Bondmen or Women, but by the Oaths of twelve Free-men at the least; for a Bondman cannot indite a Free-man, nor no other that is not receivable to do suit in the same Courts. And because it was anciently ordained, That none should abide in the Realm, if he were not in some Decine (or Tything) and undertaken for by Free-men, the Hundredors are once a year to view the Frankpledges and the Sureties: And therefore are such Views called Views of Frankpledges.
Cap. 1. §. 15. The County Court.9. The County Court. The Sheriffs hold a Court from Month to Month, or from five Weeks to five Weeks, according to the greatness and largeness of the Country; and these Courts are called Counties, where the Judgments are given by the Suitors, if there be no Writ: And this warranted by ordinary Jurisdiction.
Cap. 1. §. 15. Court Baron and Hundred Court.10. Court Barons and Hundred Courts. The other mean Courts, arethe Courts of every Lord of the Fee, &c.
11. Courts de Pipowders. And that from day to day speedy Justice be done to Strangers in Fairs and Markets, as of Pipowders according to the Law of Merchants.
Court of Pipowders. Cap. 1. §. 3. & §. 15. of mean Courts.12. Court de Admiralty. The King hath Sovereign Jurisdiction upon the Sea.
13. Courts of the Forest. The Kings Ministers of his Forest have power, by authority of their Office,Cap. 1. §. 3. Court of Admiralty. to swear Men without the Kings Writ for the safegard of the Peace, and for the Kings Right and the common good, &c.
He also treateth of the Professors of the Law, as of the Countors, that is, of the Serjeants and other Pleaders.Cap. 1. §. 13. Courts of the Forest. There are many that cannot prosecute nor defend their own Causes in Judgment, and many which may not: And therefore are Countors necessary,Cap. 2. §. 5. Of Countors. that that which the Plaintiffs and Actors may not or cannot do by themselves, they may do by their Serjeants, Proctors or Friends. Countors are Serjeants skilful in the Law of the Realm, which serve the common people to prosecute and defend their Actions in Judgment (when need is) for their Fee.
And also of Attornies, where amongst other things it is said, None may be an Attorny, which may not be a Countor, &c.
Cap. 1. §. 3.Of the Ministers of Justice, as Viscounts, Coroners, Escheators, Bailiffs of Hundreds, &c. Also by the ancient Kings, Coronerswere or dained inevery County, and Sheriffs to keep the Peace when the Earls were absent from their Charges, and Bailiffs in lieu of Hundredors, &c.
Ca. eodem §. eodem.Of the Prerogatives of the King: As of Deodands, Alienation to Aliens, Treasure found, Wreck, Waif, Estray, Chattels of Felons and Fugitives, Counties, Honors, Hundreds, Sokes, Gaols, Forests, chief Cities, chief Ports of the Sea, great Maners: These held the first Kings as their Right, and of the residue of the Land did enfeoff the Earls, Barons, Knights, Serjeants and others to hold of the Kings, by services provided and ordained for defence of the Realm. It was ordained, that the Knights Fee should come to the eldest by Succession of Heritage; and that Socage Fee should be partable between the male Children: And that the Liege Lords should have the Marriage.
He treateth in the first Chapter of Crimes, and their Divisions of the Crime of Majesty, of Fausonnery,6 of Treason, of Burning, of Homicide, of Felony, of Burglary, of Rape, &c. In the second, of Actions, of Judges, of Actors, &c. In the third, of Exceptions dilatory and peremptory, that is, Pleas to the Writ and in Barr, &c. of Trials by Juries and by Battail, of Attaints, of Challenges, of Fines, &c. In the fourth, of Judgments, and therein of Jurisdiction, ofProces in criminal Causes, and in Actions real, personal and mixt. So as in this Mirror you may perfectly and truly discern the whole Body of the Common Laws of England. In Mr. Plowdens Commentaries, fol. 8a. in Fogasses Case, Bradshaw Attorny General citeth this Book by the Name of Mirror des Justices, le quel (saith he) fuit fait devant le Conquest. The meaning of Bradshaw was, not that the Book was made before the Conquest, but that the Text of Law which he titeth out of that Book was the Law of this Realm, before the Conquest.
But here, though summa sequar fastigia rerum,7 yet I will stay my foot and fix my staff a while, for this grave and learned Author will shew us in this Mirror the great Antiquity of the said Courts of the Common Law, and particularly of the high Court of Parliament ever since the time of King Arthur, who reigned about the year of our Lord 516. not that this Court and the rest were instituted then, but that the reach of his Treatise extendeth no higher than to write of the Laws and Usages of this Realm continued since the Reign of that King. He citeth (as you have heard) a Statute of King Alfred, as well concerning the holding of this Court of Parliament twice every year at the City of London, as to manifest the threefold end of this great and honorable Assembly of Estates. 1. That the Subject might be kept from offending, that is, that Offences might be prevented both by good and provident Laws and by the due Execution thereof. 2. That men might live safely in quiet: And 3. That all Men might receive Justice by certain Laws and holy Judgments, that is, to the end that Justice might be the better administred, that Questions and defects in Laws might be by this high Court of Parliament explained, reduced to certainty, and adjudged.
This Court, being the most supream Court of this Realm, is a part of the frame of the Common Laws, and in some Cases doth proceed legallyaccording to the ordinary course of the Common Law, as it appeareth in 39 Edw. 3. f. To be short, of this Court it is truly said, Si vetustatem spectes est antiquissima, si dignitatem est honoratissima, si Jurisdictionem est capacissima.8
And where Question hath been made whether this Court of Parliament continued during the Heptarchy, let the Records themselves make answer. King Ina began his Parliament thus, as hath been anciently translated into Latin (which Translation I have:) Ego Ina Dei gratia West Saxonum Rex, exhortatione & doctrina Cenredes patris mei, & Heddes Episcopi mei, & Erkenwaldes Episcopi mei, & omnium Aldremannorum meorum & seniorum Sapientum Regni mei, multaq; congregatione Servorum Dei sollicitus de saluteanimarum nostrarum & statu Regni mei, Constitui rectum conjugium, & justa judicia, pro stabilitate & confirmatione populi mei, benigna sedulitate celebrari: Et nullo Aldremanno vel alicui de toto regimine nostro conscripto liceat abolere judicia.9
The like Parliament was holden by Offa King of the Mercians, and by Etherbert King of Kent, and the rest of the seven Kings. After the Heptarchy, taking some few Presidents for many, King Edward, Son of the aforenamed King Alfred, before the Conquest the first, held a Parliament at Exeter, and called thither all his Wisemen: Edwardus Rex admonuit omnes Sapientes suos qui fuerint Exoniae ut investigarent simul & quaererent quomodo pax eorum melior esse possit quam ante fuit, &c.10 And it shall evidently appear hereafter, that this Conventus Sapientum11 included the Lords and Commons of the Parliament.
King Ethelstaen apud Grateleiane,12 where all the Noblemen and Wisemen of the Realm were gathered together; here was Conventus omnium Nobilium & Sapientum.13 In the Reign of the same King other of his Acts of Parliament are stiled and anciently translated thus. Haec sunt Judiciae Exoniae quae Sapientes consilio Ethelstani Regis instituerunt, & iterum apud Fresresham & tertia vice apud ubi haec difinita simul & confirmata sunt.14
King Edgar, sirnamed Pacification, at several places enacted many Laws by the Counsel of his Wisemen, here was Consilium Sapientum,15 whose Acts of Parliament, being antiently translated into Latin, were intuled thus, Haec sunt instituta quae Edgarus Rex consilio Sapientum suorum instituit, &c.16
King Etheldred at Woodstock; and there Laws ordained by him and his Wisemen: Hoc est Consilium quod Etheldredus Rex & omnes Sapientes sui condixerunt, ad emendationem pacis omnis populi, apud Woodstock:17 And another Parliament by him and his Wisemen, both Spiritual and Lay: Here was Consilium Spiritualium & Laicorum.18 And stiled another thus, Haec sunt verba pacis & prolocutionis quae Etheldredus Rex & omnes Sapientes ejus cum exercitu firmaverunt, qui cum Anulano, Justinio & Guemundo Stigrani filio venit.19 And held another Parliament at Habam: Haec instituerut20Etheldredus Rex & Sapientes ejus apud Habam.21
King Edmund at London, where he summoned both the Spiritualty and Temporalty, and called them by one general Name of Wisemen: Here was Conventus Sapientum Spiritualium & Temporalium.22 But it is best to hear the ancient Translator himself, Edmundus Rex congregavit magnam Synodum divini ordinis & seculi apud Londoniae Civitatem, in Sancto Paschae solenni, &c.23 And another of his Parliaments beginneth thus, Hae sunt institutiones quas Edmundus Rex & Episcopi sui cum sapientibus suis instituerunt apud Culincona, &c.24 And soon after, Ego Edmundus Rex mando & praecipio omni populo Seniorum & Juniorum qui in regione mea sunt, qui investigans investigavi cum sapientibus Clericis & Laicis.25
King Canutus at Winchester; by the King and the reverend Council of his Wisemen. There was Venerandum Concilium Sapientum.26 For so was that Parliament being of ancient time translated into Latin, called, but hear the Title itself: Haec sunt Statuta Canuti Regis Anglorum, Danorum, Norvegarum venerando Sapientum ejus consilio, ad laudem & gloriam Dei, & sui regalitatem, & commune commodum, habita in Sancto Natali Domini apud Wintoniam, &c.27
All which and many more are extant and publickly known, but I will add that which I read in the legier Book of the late Monastery of Saint Edmonds Bury, now in my hands, of an ancient handwriting, wherein is cited a Parliament holden in the fifth year of this King Canutus Reign; but I will keep silence, and let the Book it self speak. Rex Canutus anno Regni sui quinto, videlicet,28Per centum & triginta annos ante compilationem Decretorum quae anno Domini 1150. fuer’ compilat’, annoseptimoPontificatusPapae Eugenii tertii, & ante compilationem aliorum Canonum quorumcunq; cunctos Regni sui Praelatos, Proceresq; ac Magnates ad suum convocans Parliamentum in suo publico Parliamento persistentibus personaliter in eodem Wulstano & Adelnodo Archiepiscopis & Ailwino Episcopo Elmhamense, & aliis Episcopis ipsorum suffraganeis, septem Ducibus cum totidem Comitibus, necnon diversorum monasteriorum nonnullis Abbatibus, cum quamplurimis gregariis militibus, ac cum populi multitudine copiosa, ac omnibus adhuc in eodem Parliamento personaliter existentibus, votis Regiis unanimiter consentientibus praeceptum & decretum fuit, quod Monasterium Sancti Edmundi, &c. sit ab omni Jurisdictione Episcoporum Comitatus illius extunc imperpetuum funditus liberum & exemptum, &c. Illustris Rex Hardicanutus praedicti Regis Canuti filius, haeres & successor, ac sui patris vestigiorum devotus imitator, &c. cum laude & favore Aegelnod’ Dorobornensis, nunc Cantuariensis, & Alfrici Eborac’ Episcoporum, aliorumq; Episcoporum suffragan’, necnon cunctoruns Regni sui mundanorum principum descriptum constituit roboravitq; praeceptum.29 Which immunity I know that the said Monastery held until the dissolution thereof in the 31st year of the Reign of King Henry the eighth.
But let us proceed, and yet omit many, and touch only that which hath been controverted. It is said, that Silent leges inter arma,30 and that during all the time of the Conqueror no Parliament was lawfully assembled, &c. for Silent leges inter arma, and during all his Reign, either the Sword was not put up into the scabbard, or if it were, the Hand was always upon the hilt ready to draw it again. But that a Parliament was assembled and holden according to the common Laws of England, in William the Conquerors time, it isevident, for that an Act established at a Parliament holden in the Reign of W. the Conqueror was pleaded and adjudged to be firm and good and accordingly put in execution by the Judges of the Realm, which they neither would nor could have done, if it had been commanded by the powerful Will of the Conqueror, and not established by a Parliament duly assembled, according to the form and frame of the Common Law. And therefore as well for manifestation hereof; as for proof of that which hath been said, you shall read in the Book Case of 21 E. 3. f. 60a., 60b.31That the King sued a Writ of Attachment upon a Prohibition against the Bishop of Norwich, for that where the Abby of St. Edmonds Bury in the County of Suffolk was founded by the Progenitors of the King, and exempt from all Jurisdiction of the Ordinary, and that no Ordinary should visit there, and that none should go against the said ordinance and the foundation aforesaid: That upon controversie between Arfastus late Bishop of Norwich, and B. late Abbot of Bury, of the Exemptions aforesaid; in the time of William the Conqueror, at his Parliament on a certuin day holden, it was ordained by the King, the Archbishop of Canterbury, and all the other Bishops of the Land, the Earls, Barons, &c. That at what time the Bishop of Norwich, or any of his successors, should go against the points of the foundation, and exemptions aforesaid, that the Bishop for the time being should pay to the King or to his Heirs thirty Talents of Gold: And declared further, how the King sent a Prohibition to the Bishop, that he should not enter into the said Franchise, nor attempt any thing against the priviledge of the said Church of St. Edmund, and that notwithstanding the said Prohibition, the then Bishopof Norwich hadvisited the Abby aforesaid, and had summoned the Abbot to shew the Charters of their Foundation, wrongfully and in despight of our Sovereign Lord the King: whereunto the then Bishop pleaded not guilty, and he was found guilty by the Verdict of the Enquest. Whereupon it was adjudged, that the Temporalties of the Bishop should be seised into the Kings Hands. But it was advised and resolved by all the Judges, that in right of the Talents they could not give Judgment; for two causes: 1. For that the Prohibition was the original Suit, and that was determined by the Judgment in the Prohibition, that the Temporalties of the Bishop should be seised into the Kings Hands, which then was the proper Judgment in the Suit. 2. Concerning the Talents they were a penalty ordained by Parliament in that case, so that the Penalty had no dependency upon the Prohibition, which is the original Suit. But it was advised and resolved by the Judges, that the Bishop of Norwich had forfeited the said Penalty of the Talents to the King, and that they ought to grant a Scire facias32to the then Bishop for that purpose, which was granted accordingly, upon which Writ the Bishop appeared and pleaded, and thereupon Judgment was given, that the King should recover the said Talents, as by the said Book Case judicially adjudged appeareth.
Which Case if the Opponents had seen or known, they would have therewith rested satisfied. And this notable Judgment giveth credit to that ancient Treatise, intituled thus, (a)33Modus tenendi Parliamentum. Hic describitur modus quomodo Parliamentum Regis Angliae, & Anglicorum suorum tenebatur tempore Regis Ed. filii Regis Etheldredi, qui quidem modus fuit per discretiores Regni, coram Williel’ Duce Normaniae, & Conquestore & Rege Angliae, ipso Conquestore hoc praecipiente, & per ipsum approbat’ & suis temporibus & successoribus, suorum Regum Angl’ usitat’:34 Wherein the Assembly of the Kings, the Lords and Commons, according to the manner continued to this day, is set down, which I have in a fair and very ancient written hand, whereby it is manifest that Conventus Nobilium & Sapientum, &c.35 included both the Lords and the Commons of the Parliament.
It is evident36 that there were Tenants in ancient demesne before the Conquest, and for a certainty therein, and to know of what Manors such Tenants did hold, it appears by the Book of Domesday, that all the Tenants that did hold any of those Manors that were in the hands of King Ed. the Son of King Etheldred, or of King W. the Conqueror, were Tenants in ancient demesne. And these Tenants then had and yet have these priviledges amongst others, for that they were bound by their tenure to plow and husband, &c. the Kings demesns before and in the Conquerors time, therefore they were not to be returned Burgesses to serve in Parliament, to the end they might intend the Kings Husbandry the better. 2. They were not to be contributory to the Fees of the Knights of Shires that served in Parliament; which Priviledges (though the cause ceaseth) continueth to this day; therefore there were Parliaments unto which the Knights and Burgesses were summoned both before and in the Reign of the Conqueror. For your satisfaction herein, see F.N.B. 14.e. 49 Edw.3.22.b.2.3.a. 40 Edw.3.25. 11Hen.4.2. &c. Also the ancient Towns called Boroughs are the most ancient Towns within England, for those Towns which now are Cities and Counties, in ancient time were Burghs, and called Burghs, for out of those ancient Towns called Burghs came the Burgesses to the Parliament, which are the very words of Littleton lib. 2. c. 10. Vide 40 Ass. p. 27. 11 Hen.4.2. 22 Edw.4.11. &c. So as it appeareth that the ancient Burghs are the most ancient Towns of England, and consequently long time before the Conquest; and I have found many of them since the Conquest incorporated into Cities, and distinguished into Counties since the Conquest, but had been ancient Burghs (from whence came the Burgesses to the Parliament) time out of mind before the Conquest: Nay divers of the most ancient Burghs, that yet send Burgesses to the Parliament, flourished before the Conquest, and have been of little or no account to have any such privileges newly granted to them at any time since. And I could yet never find when any of them, or any other the ancientest Burghs, were of ancient time since the Conquest endowed with that privilege.
King Henry the first Anno Domini 110037cum suorum consilio decrevit ut monetagium commune quod capiebatur per Civitates vel Comitatus quod non fuer’ tempore Edwardi Regis, hoc ne amodo fiet. Item quod Ecclesius non venderet nec ad forman daret, mortuo Episcopu vel Abbate.38 And this King assembled another Parliament39 on Candlemas Day at London Anno Domini 1123.
King Henry the Second in the year of our Lord God 1185. (as testifieth Mathew Paris) Convocavit Clerum Regni & populum cum omni Nobilitate ad fontem Clericorum.40
King John held a Parliament in the sixth year of his Reign, as it appeareth by his Writs of the Chancery in these words: Rex Vicecomiti, &c. Sciatis quod consensum est cum assensu Archiepiscorum, Comitum, Baronum & omnium fidelium nostrorum Angliae, quod novem Milites per totam Angliam invenient decimum Militem bene paratum equis & armis ad defensionem Regni nostri, &c.41 But to proceed any further were but to gild Gold, or to add a little Drop to the great Ocean.
Concerning the name of the Parliament two things fall into consideration, 1. What the Word signifieth. 2. When this supream Court was christened by the name of Parliament: Touching the first, it is so called for two causes, 1. Because that every Member of that high Court hath judicial place, and for that every Man there should without any Spirit, either of contradiction or smoothing, Parler la ment,42 speak judicially his mind, it is called Parliament.43 2. The Laws there made are called Acts of Parliament, because they are to be expounded, being part of the Laws of the Realm, by the Judges of the Law, according to the mind and true meaning of the speakers that were the makers of these Acts; as Testamentum44 is to be expounded secundum mentem Testatoris,45 and Arbitramentum secundum mentem Arbitatoris.46 As to the 2d,47 the Saxons called this Court micel gemott,48 the great Assembly, wittenagemott,49 the Assembly of Wise Men, the Latin Authors of those times calledit Commune Concilium, magna Curia, generalis Conventus, &c.50 And let it be granted, that W. the Conqueror changed the name of this Court, and first called it by the name of a Parliament, yet manifest it is by that which hath been said, that he changed not the frame or jurisdiction of this Court in any point. And the very Names in substance that were attributed to this Court before the Conquest, are continued after the Conquest to this day. For in the Mirror of Justices, as appeareth before, it is called Concilium generale, Fleta lib.2.c.2. Habet etiam Rex Curiam Suam in Concilio Suo in Parliamentis Suis, praesentibus Praelatis, Comitibus, Baronibus, Procerib’, & aliis viris peritis.51 8 R.2. Avowry 260. and in many other Books it is called Rex & Concilium: In the Original Regist.f.280. it is called Magnum Concilium. In Dorso claus.16 E.2. M. 5. Henricus de bello monte Baro de magno & Secreto Concilio Regis:52 and Rot. Parliam’ an. 3E.4. parte prima M. 2. it is called Magnum Concilium. Bracton lib. 1. c. 2. termeth it Magna Curia. Anno 17 E. 2. de Templariis, Super quo convocatis Majoribus de Concilio Domini Regis tam Justiciariis quam Laicis personis in Parliamentum, concordatum est in Parliamento, &c.53 And in many Statutes in the Reigns of Henry the third Edward the first and succeeding Kings, it is called Commune Concilium, and Commune Concilium Regis, and Commune Concilium Regni,54 and so runneth the Writ of Wast,55 and many other original and judicial Writs. But if any be desirous to see more of this King, let him look into the eighth part of my Reports in the Princes Case. So as I conclude, that the nature and name of the Court, in use before the Conquest, continueth to this day. And where some do suppose, that in the Parliament holden at Westminster, in the third year of the Reign of King Edward the first called Westm’ the 1. this Word Parliament first crept in, where it is called the first general Parliament by the assent of the Archbishops, Bishops, Abbots, Priors, Earls, Barons and all the Comminalty of the Land summoned to the same, &c. It is manifest that the name was long before that time, as well by that which hath already been said, as for that in the 9th year of Edward 2. Son and immediate Successor to King Edward 1. at a Parliament then holden, it is said thus, Sciatis quod iam dudum temporibus progenitorum nostrorum quondam Regum Angliae in diversis Parliamentis suis, &c.56 which could not have truly been said if the Name had first begun in the Reign of his Father.57 ,58 This is not that Court that in France bear the Name of Parliaments, for they are but ordinary Courts of Justice which (if you believe Paulus Jovins) were by us first setled there: But this is that which both England and Scotland agree in naming of it a Parliament, which the French doth term Assemblee des Estats, or les Estats, and the German a Dyet.59
Fleta ubi Supra a saith of this Court, Ubi terminatae sunt dubitationes judiciorum, & novis injuriis emersis nova constituuntar remedia, & unisuique justicia prout meruerit retribuetur ibidem.60
In Master Plowdens Commentaries 388.61Le Parliament est Court de tresgrand honour & justice, de que nul doit imaginit chose dishonourable.62 I will pretermit Fortescue sometime Chief Justice of England, in his Treatise De Laudibus Legum Angliae,63 and many others, and will conclude this Point with him that is the chief Antiquary of his time, because he concludeth the sum of all aptly, distinctly and eloquenly,64sol. 128. b. Quod ad Angliae Tribunalia, Curias, five Juris fora attinet, in triplici sunt apud nos differentia, alia enim sunt Ecclesiastica, alia temporalia, & unum mixtum, quod maximum, & longe amplissimum, non ita vetusto nomine e Gallia mutuato Parliamentum dicitur. Majores nostri Anglo-Saxones Wittena gemott, i. Prudentum Conventus, & Geredniss, i. Concilium, & Micel synod (a Graeca dictione, synodus) i. Magnus Conventus, Latini ejus & Subsequentis aevi Scriptores, Commune Concilium, Curiam altissimam, generale placitum, Curiam magnam, Magnatum Conventum, praesentiam Regis, Praelatorum, Procerumque collectorum, commune totius Regni Concilium, &c. vocarunt. Utque universum AEtoliae Concilium Panetolium Livio nominatur, ita Pananglium, recte dici possit. Ex Rege enim, Clero, Nobilibus, Majoribus, Equitibus & Burgensibus electis; sive ut significantius dicam stylo forensi, ex Rege, Dominis spiritualibus, & temporalibus, atque ex Communitate constat, qui universae Angliae corpus repraesentant. Statis autem temporibus non habetur, sed a Rege pro arbitrio indicitur, quoties de rebus arduis & urgentibus, ne quid detrimenti Respublica capiat, consultandum, ejusdemq; soliusarbitriodissolvitur.Summam autem & sacrosanctam authoritatem habet in legibus ferendis, confirmandis, antiquandis, interpretandis, proscriptis in integrum restituendis, litibus inter privatos difficilioribus decidendis, & ut semel dicam, in omnibus quae ad reipublicae salutem, vel etiam privatum quemcunq; spectare possint.65
In this ancient Mirror you may also clearly discern as far as the Reign of the often named King Arthur, the great Antiquity of the Officers and Ministers of the Common Law, and of their inferior Courts, as for example, of the Offices of the Keepers or Senators of the Shires or Counties, Custodes seu Praepositi Comitatus,66 of later times called Shireves (who saith this Author fueront ordeines per veiels Roys quant les Countees demisterent des gards67 ) and of his Tourns and County Courts: Which Officers and division of Shires continued (as you may read amongst the Laws of those seven Kings) though with much incroachment, during the Heptarchy, as taking one or two Examples for many: Amongst the Laws of King Ina it is provided in these Words, Gif hwa hun righter bidde beforan scirman oth the othrun deman,68 the ancient Translation thus, Si quis rectum sibi roget coram aliquo Scirman (i. Praeposito comitatus) vel alio Judice & habere non possit, & accusatus vadium recti dare nolit, emendet 30 s. & infra septem noctes faciat ei recti dignum.69
And in another place, Gif he Eldorman hy, tholige his scire, Qui furem ceperit, vel captum reddiderit, vel ipsum dimiserit, vel furtum celaverit, reddat ipsum furem secundum weram suam, si Eorldermannus, i. Praepositus Comitatus sit, perdat Comitatum suum nisi Rex parcere velit ei.70 If the Shireve do it he shall lose the Custody of his Shire or County: And afterwards, Si quis discedat a domino suo sine licentia, vel in alium Comitatum se furetur, & deinceps inveniatur, redeat illuc ubi antea fuit, & emendet domino suo lx s. &c.71
And albeit the Saxons gave this Officer the vulgar Name used to this day, yet it is manifest that the Office was of ancient time before they set any foot in England.72 This word Shireve is derived of two Saxon words, viz. of Scyre, that is, the Shire or County, and Reve, that is, Custos, or Praepositus Comitatus,73 the Keeper or Gardein of the Shire; and sometime (as you see) they were called Shire-man or Elderman of the Shire. And to this day his Patent is, Commisimus vobis Custodiam Comitatus.74 ,75 So I agree well with them which affirm that King Alfred divided England into Shires or Counties, in that he made the most certain division of them; for where, during the time of the Heptarchy, there were many Incroachments one upon another, and many ancient bounds obscured, all that he reformed by his exact partition. But they must also agree with me, that long before the Birth of King Alfred this Kingdom had been divided into Shires or Counties. But hereof, at this time, this little shall suffice.
I have in my custody an ancient Record intitled Kanc’ de placito apud Pinendenam inter Lanfrancum Archiepiscopum Cant’, & Odonem Baiocensem Episcopum tempore magni Regis Willielmi qui Anglicum Regnum armis conquisivit:76 The effect whereof is, That Lanfrank Archbishopof Canterbury brought a Writ of right Patent against the said Odo of the Manors of Raculfe, Sandwic’, Rateburg’, Widetun, Saltwode, cum Burgo Heth ad Saltwode pertinente, Langport, Huoenden, Rokinge, Broche, Detling, Prestitune, Sunderhurst, Earheth, Orpintune, Einsford, &c., una cum libertatibus & pertinentiis de soca, saca, Toll, Team, Flymena, Firmith, Grithbreach, Storsteale, Haunfare, Infangentheof, cum omnibus aliis consuetudinibus paribus istis, vel minoribus istis, in terris & in aquis, in sylvis, in viis, & in pratis, & in omnibus aliis rebus infra Civitatem, & extra, & in omnibus aliis locis:77 Which Writ was removed into the County Court by a Writ called a Tolt: and the Record saith, Quod praecepit Rex Comitatum totum absque mora considere, & omnes Francigenas, & praecipue Anglos in antiquis legibus & consuetudinibus peritos in unum convenire: qui cum convenerint apud Pinendenam pariter considerunt, &c. Huic placito interfuerunt Ernestus Episcopus de Rovec’, Agelricus Episcopus de Cicestr’, vir antiquissimus, & legum terrae sapientissimus, qui ex praecepto Regis advectus fuit, ad ipsas antiquas legum consuetudines discutiendas & edocendas, in una quadriga, Richardus de Tunebreg, Hugo de Monteforti, Willielmus de Acres, Haymo Vicecomes, & alii multi, &c. Barones Regis & ipsius Archiepiscopi, atque illorum Episcoporum homines multi, &c. cum toto isto Comitatu multae & magnae authoritatis viri, &c. Et ab omnibus illis probis & sapientibus hominibus qui affuerunt fuit ita diraciocinatum & etiam a toto Comitatu recordatum atque judicatum, quod sicut ipse Rex tenet suas terras liberas & quietas in suo dominico, ita Archiepiscopus teneat suae terras praedictas omnino liberas & quietas in dominico, &c.78 And let not this ancient Judgment in a Writ of Right seem strange: for since that time, and to this day the Judgment for the Tenant in a Writ of Right is, Quod teneat terram illam, &c. quietam, or, in pace, &c.79 And under this Record it is thus testified. Hujus placiti multis testibus multisque rationibus determinatum finem postquam Rex audivit, laudavit, laudansque cum consensu omnium Principum cipum suorum confirmavit & ut incorruptus perseveraret firmiter praecepit.80 And the cause of this Controversie is there also expressed in these words. Tempore magni Regis Willielmi qui Anglicum Regnum armis conquisivit,&suisditionibus subjugavit, contigit Odonem Bajocensem Episcopum & ejusdem Regis fratrem multo citius quam Lanfrancum Archiepiscopum in Angliam venire atquein Comitatu de Chent cum magna potentia residere, ibique potestatem non modicam exercere. Ac quia illis diebus in Comitatu illo quisquam non erat qui tantae fortitudinis viro resistere posset propter magnam quam habuit potestatem, terras complures de Archiepiscopatu Cantuar’ & consuetudines nonnullas sibi arripuit, atque usurpans suae dominationi. Postea vero non multo tempore contigit praefatum Lanfrancum Cadomensis Ecclesiae Abbatem jussu Regis in Angliam quoque venire, atque in Episcopatum Cantuar’, Deo disponente, totius Angliae primatum sublimatum esse, ubi dum aliquandiu resideret, & antiquas Ecclesiae suae terras multas sibi deesse inveniret & suorum negligentia antecessorum illas distributas atque distractas fuisse reperisset, diligenter inquisita & bene cognita veritate, Regem quam citius potuit & non pigre inde requisivit, ut Justicia secundum legem sibi fieret, &c.81 And thus much by way of Addition to my former Preface shall suffice.
I have in this ninth Work reported certain Cases which have been adjudged and resolved, together with the Reasons and Causes thereof, to the end the Learned that know the Law may be confirmed, such as know it not may be instructed, the Possessions and Interests of all in general according to Right strengthened and quieted, Love and Charity between Man and Man continued, unnecessary Suits, the Causes of Contention and Expence, prevented, and the Reign of our dread Sovereign, for his Zeal of Justice, renowed and honoured.
And it is very observable out of what root the Doubts and Questions herein adjudged and resolved did grow: The most difficult whereof do spring out of these two Roots, either out of Statutes enacted in that supream Court of Parliament (whereof I have spoken) or out of supposed variety of Opinions and Rules in our Books. Out of Acts of Parliament principally in two sorts, either when an ancient Pillar of the Common Law is taken out of it, or when new remedies are added to it. By the first arise dangers and difficulties, and by the second the Common Law rightly understood is not bettered, but in many Causes so fettered, that it is thereby very much weakned. Take one Example for both; In 5 Edwardi 3. 14.82 Sir Will. Herle Chief Justice of the Court of Common Pleas, saith, That the Statute De Donis Conditionalibus83 was made in the Reign of King Edward the first, (who (saith he) was the most sage King that ever was) and the Cause of the Statute was to salve the Heritage in the Blood of them to whom the Gift was made; and yet that Statute shaking a main Pillar of the Law, that made all Estates of Inheritance Fee simple, no Wisdom could foresee such and so many mischiefs as upon those fettered Inheritances followed; but hereof have I given a touch in the Prefaces to my third and fourth Work; and therefore desiring that this kind of innovation might be left, I will for this time leave it. Concerning the supposed variety of Opinions and Rules in our Books, I trust in many Cases herein the studious Reader shall observe (as in my former Works he hath done) that the Law truly distinguishing84 (for ubi Lex non distinguit nec nos distinguere debemus)85 they be in these Cases well and justly accorded. And I affirm it constantly, That the Law is not incertain in Abstracto but in Concreto, and that the incertainty thereof is hominis vitium86 and not professionis:87 And to speak plainly there be two Causes of the uncertainty thereof in Concreto, viz. praepostera lectio and praepropera praxis,88 preposterous reading, and oversoon practise.
A substantial and a compendious Report of a Case rightly adjudged doth produce three notable effects: 1. It openeth the Understanding of the Reader and Hearer; 2. It breaketh through difficulties, and 3dly, It bringeth home to the hand of the studious, variety of pleasure and profit; I say it doth set open the Windows of the Law to let in that gladsom Light whereby the right reason of the Rule (the Beauty of the Law) may be clearly discerned; it breaketh the thick and hard Shell, whereby with pleasure and ease the sweetness of the kernel may be sensibly tasted, and adorneth with variety of Fruits bothpleasant and profitable, the Storehouses of those by whom they were never planted nor warred. Whereunto (in those Cases that be tortuosi89 and of great difficulty, adjudged upon Demurrer or resolved in open Court) no one Man alone with all his true and uttermost labours, nor all the actors in themselves bythemselves out of a Court of Justice, nor in Court without solemn Argument, where (I am persuaded) Almighty God openeth and inlargeth the understanding of the desirous of Justice and Right could ever have attained unto. For it is one amongst others of the great honours of the Common Laws, that Cases of great difficulty are never adjudged or resolved in tenebris or sub silentio suppressis rationibus;90 but in open Court, and there upon solemn and elaborate Arguments, first at the Bar by the Counsel learned of either party (and if the Case depend in the Court of Common Pleas then by Serjeants at Law only) and after at the Bench by the Judges, where they argue (the puisne Judge beginning and so ascending) seriatim,91 upon certain days openly and purposely prefixed, declaring at large the authorities, reasons and causes of their Judgments and Resolutions in every such particular Case (habet enim nescio qd’ energiae viva vox:92 ) a reverent and honourable proceeding in Law, a grateful satisfaction to the Parties, and great instruction and direction to the attentive and studious Hearers.
In this, as in the rest of my Works, my chief care and labour hath been for the advancement of truth that the Matter might be justly and faithfullyrelated, and (for avoiding of Obscurity and Novelty) that it might be in a legal and Method and in the Lawyers Dialect plainly delivered, that herein no Authority cited might be wittingly omitted, or coldly applied; no Reason or Argument made on either side willingly impaired; no Mans Reputation directly or indirectly impeached; no Author or Authority cited unreverently disgraced; and that such only as (in mine Opinion) should hereafter be leading Cases for the publick quiet might be imprinted and published. Almighty God (who hath of his great Goodness enabled me hereunto) knoweth that I have not taken these Labours, either for vain Glory or upon presumption of any persuasion of Knowledge: but true it is, that I have been ever desirous to know much; and do acknowledge my self to owe much more to my Profession than all my true and faithful Labours can satisfie: And as I truly confess, that I have no means (for I know my own wants) to quit that Debt, so I faithfully promise never to be found unthankful or unwilling to perform what by my uttermost endeavour shall lie in my power. My desire of the learned Reader, with old Bracton (sometime a famous Judge of the Court of Common Pleas (as I find in Record) and a Writer of the Laws) is, Ut si quid superfluum vel perperam positum in hoc opere invenerit, illud corrigat & emendet, vel conniventibus oculis pertranseat, cum omnia habere in memoria & nulla peccare, divinum sit potius quam humanum.93
[3. ][Ed.: To God, to the Country, to you.]
[4. ][Ed.: the workshops of the law.]
[5. ][Ed.: itinerant justices.]
[6. ][Ed.: Falsifying or counterfeiting a seal or coin.]
[7. ][Ed.: which was made before the conquest. . . . I will only cover the main points.]
[8. ][Ed.: If you seek antiquity, it is ancient; if dignity, it is most honorable; if jurisdiction, it is very broad.]
[9. ][Ed.: I, Ine, by the grace of God king of the West Saxons, by the exhortation and teaching of Cenrede my father, and Hedde my bishop, and Erkenwald my bishop, and of all my ealdormen and wise elders of my kingdom, and by a great gathering of the servants of God, being solicitous of the health of our souls and the estate of my kingdom, have appointed right union and just judgments to be laid down with benign diligence for the establishment and strengthening of my people; and it shall be lawful for no ealdorman or other person of our whole realm to abolish judgments.]
[10. ][Ed.: King Edward warned all his wise men to be at Exeter to investigate together and enquire how their peace might be made better than before etc.]
[11. ][Ed.: meeting of wise men.]
[12. ][Ed.: at Grateley.]
[13. ][Ed.: a meeting of all the noble and wise men.]
[14. ][These are the judgments of Exeter which were instituted by the wise men of the council of King AEthelstan, and again at ‘Fresresham’, and a third time at [blank] where these were defined and confirmed together.]
[15. ][Ed.: council of wise men.]
[16. ][Ed.: These are the constitutions which King Edgar instituted by the council of his wise men.]
[17. ][Ed.: This is the advice which King AEthelred and all his wise men brought in for the improvement of the peace of the whole people.]
[18. ][Ed.: council of spiritual and lay men.]
[19. ][Ed.: These are the words of peace and of the speech which King AEthelred and all his wise men confirmed with the army which came with Anulanus, Justinius and Guemundo son of Stigranus.]
[20. ][Ed.: These things were instituted [NB belongs with next passage].]
[21. ][Ed.: by King AEthelred and his wise men at ‘Habam’.]
[22. ][Ed.: a meeting of wise men, spiritual and temporal.]
[23. ][Ed.: The king assembled a great synod of the clergy [literally, divine order] and of secular persons at the city of London at the holy feast of Easter.]
[24. ][Ed.: These are the institutions which King Edmund and his bishops, with their wise men, instituted at ‘Culincona’, etc.]
[25. ][Ed.: I, King Edmund, command and order all people, both old and young, who are within my jurisdiction, that I have sought out with wise clerks and laymen . . .]
[26. ][Ed.: Venerable council of wise men.]
[27. ][Ed.: These are the statutes of Canute, king of the English, Danes and Norse, with the venerable advice of his wise men, to the praise and glory of God, and his regality, and the common profit, made at the feast of Christmas at Winchester etc.]
[28. ]Pryn sur 4 Institut. f. 78. [Ed.: in the fifth year of his reign, namely.]
[29. ][Ed.: For one hundred and thirty years before the compilation of the decretals which were compiled in the year of our Lord 1150, in the seventh year of the pontificate of Pope Eugenius III, and before the compilation of any other canons whatsoever, [King Canute] summoned the whole body of prelates, peers and magnates of his realm, in his public parliament; and archbishops Wulstan and Adenoldo, bishop Ailwin of Elmham, and other bishops their suffragans, seven dukes, with all the earls, and many abbots of various monasteries, and great crowds of knights, personally appeared there with a copious multitude of people; and, while all of them were still in the same parliament, it was ordered and decreed by the royal will, everyone consenting, that the monastery of St. Edmund, etc. should thenceforth for ever be free and exempt for ever from all jurisdiction of the bishops of that county etc. The illustrious King Hardicanute, son of the aforesaid King Canute, his heir and successor, and a devoted imitator of the ways of his father, with the praise and favour of bishops Aegelnod of Dover, now of Canterbury, and Aelfric of York, and other bishops their suffragans, and also of the whole body of people of his realm, have constituted and confirmed the above mentioned command of worldly princes.]
[30. ][Ed.: The laws are silent amidst arms [during war].]
[31. ]Pryn sur 4 Institut. 1, 7. 4 Inst. 12.
[32. ][Ed.: Writ to require a person to act or show cause to avoid acting on the basis of a record, such as a judgment.]
[33. ]a) Pryn sur Inst. 1, 2, 3, tc. 78, &c. Inst. 12.
[34. ][Ed.: The Method of Holding Parliament ...,the title of the treatise.]
[35. ][Ed.: a meeting of noble and wise men, etc.]
[36. ]F.N.B. 14. d.
[37. ]Richardus Hagustadensis & Math. Paris. in brevi Historia.
[38. ][Ed.: In the year of our Lord 1100, [King Henry I] with his council decreed that the common mint which was undertaken by the citizens or the county, which was not in the time of King Edward, should not from thenceforth be done. Also that he would not sell or let to farm churches on the death of the bishop or abbot.]
[39. ]Ex Chronico de Peterburgo.
[40. ][Ed.: Called together the clergy and people of the realm, with all the nobility, to Clerkenwell.]
[41. ][Ed.: The King to the Sheriff etc. Know ye that it is agreed, with the assent of the archbishops, earls, barons and all our faithful subjects of England, that every nine knights throughout England should find the tenth knight ready with horses and arms for the defence of our kingdom, etc.]
[42. ][Ed.: to speak the mind.]
[43. ]Co. Lit. 110. b.
[44. ][Ed.: testament.]
[45. ][Ed.: according to mentum testatoris (the mind of the testator).]
[46. ][Ed.: arbitration according to the mind of the arbitrator.]
[47. ]Tay. Hist. Gav. 65. Co. Lit. 110. a.
[48. ][Ed.: the great meeting.]
[49. ][Ed.: the meeting of wise men.]
[50. ][Ed.: The common council, great court, general meeting, etc.]
[51. ][Ed.: The King also has his court in his council in his parliaments, in the presence of the prelates, earls, barons, peers and other learned men.]
[52. ][Ed.: Henry, baron de Beaumont, of the king’s great and secret council.]
[53. ][Ed.: Whereupon, the leading members of the lord king’s council, both justices and lay persons, having been called into parliament, it is agreed in parliament, etc.]
[54. ][Ed.: Common council, and the king’s common council, and the common council of the realm.]
[55. ][Ed.: Waste]
[56. ]Pryn sur 4 Institut. 2, &c.
[57. ][Ed.: Be it known that not long since, in the times of our forebears formerly kings of England, in their various parliaments, etc.]
[58. ]Co. Lit. 110.a.
[59. ][Ed.: assembly of the estates, or the estates.]
[60. ][Ed.: where doubtful judgments are determined and new remedies appointed for new injuries, and there everyone who should merit it is given justice.]
[61. ]Plowd. 398. b. 11 Co. 14. a.
[62. ][Ed.: the parliament is a court of the greatest honour and justice, of which no one ought to imagine a dishonourable thing.]
[63. ][Ed.: In praise of the laws of England.]
[65. ][Ed.: There are with us three distinctions with respect to the tribunals, courts or jurisdictions of England; for some are ecclesiastical, some temporal, and one is mixed: and that is the greatest and most extensive, not so long ago called parliament (borrowing the French name). The greater Anglo-Saxonscalled it ‘witena gemot’, that is, a meeting of wise men, and ‘gerednis’, that is, a council, and ‘micel synod’ (from the Greek word synod), that is, a great meeting. The Latin writers of that and subsequent periods call it the common council, the highest court, the general plea, the great court, the great meeting, the presence of the king, prelates and peers gathered, the common council of the whole realm, etc. And as Livy called the supreme council of Aetolia ‘Panetolium’, so ought it rightly to be called Pan-anglium. It consists of the king, the clergy, the nobles, and the mayors, knights and burgesses who have been elected, or (as is more significantly said in legal style) the king, the lords spiritual and temporal, and the commons: who represent the body of the whole of England. At certain times it does not exist, for it is proclaimed at the king’s pleasure whenever he needs advice concerning difficult and urgent matters, lest any damage be done to the state; and it is dissolved by the same power alone. It has the ultimate and sacrosanct authority in laying down, confirming, abrogating, interpreting and consolidating laws, deciding the more difficult lawsuits between private people, and in all things whatsoever that may belong to the health of the state or to any private matter.]
[66. ][Ed.: keepers or provosts of the counties.]
[67. ][Ed.: were ordained by ancient kings when earls were deprived of the custody [of the counties].]
[68. ][Ed.: If anyone leaves his lord without licence, or steals into another county, and then returns, he shall go back to the place where he was before and make amends of sixty shillings to his lord etc.]
[69. ][Ed.: If anyone should seek justice to be done him before any shire-man (that is, provost of a county), or other judge, and cannot have it, and the accused person will not give a gage of justice, he shall make amends of thirty shillings and within seven months do him such justice as he deserves.]
[70. ][Ed.: If he is an ealdorman, he shall forfeit his shire. He who takes a thief, or renders someone captive, and lets him go, or conceals the theft, shall pay for the thief according to his wergeld. If he is an ealdorman (that is, provost of a county), he shall lose his county, unless the king is willing to spare him.]
[71. ][Ed.: If anyone should seek justice before the shire-man or other judge.]
[72. ]Co. Lit. 109. b. 168. a.
[73. ][Ed.: keeper or provost of the county.]
[74. ][Ed.: we have committed to you the keeping of the county.]
[75. ]Co. Lit. 168.a.
[76. ][Ed.: Kent. Concerning a plea at Pennenden between Lanfranc, archbishop of Canterbury, and Odo, bishop of Bayeux, in the time of the great King William who conquered the English realm with arms.]
[77. ][Ed.: [Following the list of locations], together with the liberties and appurtenances of soke, sake, toll, team, flymenfyrm, grithbreche, [forestel], hamfare, infangthief, and all other customs equivalent to these, or less than these, on land and in water, in woods, in ways, and in meadows, and in all other things within the city and without, and in all other places.]
[78. ][Ed.: that the king commanded the whole county to meet without delay, and that there should be convened all the Frenchmen and especially the English who were learned in the old laws and customs; and they met at Pennenden, and sat down together, etc. At thiscasewerepresent Arnost, bishop of Rochester, AEthelric, bishop of Chichester, a most elderly man and very wise in the laws of the land, who was brought in a cart by the king’s command to discuss and explain the old customs of the laws, Richard de Tonbridge, Hugh de Montfort, William de Acres [Arques], Hamo the sheriff, and many others, etc., the king’s barons and his archbishops, and many of the said bishops’ men, etc., with the whole of that county, men of much and great authority, etc. And it was decided by all these good and wise men who were present, and also recorded and adjudged by the whole county, that just as the king himself holds his lands freely and quit in his demesne, so the archbishop should hold his aforesaid lands utterly free and quit in his, etc.]
[79. ][Ed.: that he hold the land, etc. quiet, or in peace, etc.]
[80. ][Ed.: Having heard the conclusion of this case, by many witnesses and arguments, the king approved it and, praising it with the consent of all his princes, confirmed it and firmly ordered it to be preserved unbroken thereafter.]
[81. ][Ed.: In the time of the great King William, who conquered the English realm by arms, and subjected it to his authority, it so happened that Odo, bishop of Bayeux, and the said king’s brother, arrived in England much earlier than Archbishop Lanfranc and resided in the county of Kent with great power, exercising considerable authority there. And because in those days there was no one in that county who could resist a man of such strength, because of the great power that he had, he seized numerous lands and a good many customs of the archbishopric of Canterbury for himself, and by way of usurpation gained control of them. Not long afterwards, however, the said Lanfranc, abbot of the church of Caen, also came to England by the king’s command to be archbishop of Canterbury, by God’s arrangement, and supreme primate of all England. He lived there for some time, and found many of the old lands of his church to be missing and distributed and given away by the negligence of his predecessors, and having made diligent enquiry and careful discovery of the truth he went to the king as soon as he could and earnestly asked that justice be done to him according to law, etc.]
[82. ]Co. Lit. 19. a, 392. b. 10 Co. 38. b.
[83. ][Ed.: concerning conditional gifts.]
[84. ]Cawley 132.
[85. ][Ed.: where the law makes no distinction, we ought not to distinguish.]
[86. ][Ed.: the vice of the man, . . .]
[87. ][Ed.: . . . the profession.]
[88. ][Ed.: namely, preposterous reading and premature practice,]
[89. ][Ed.: tortuous.]
[90. ][Ed.: in darkness, or in silence, suppressing the reasons;]
[91. ][Ed.: in order,]
[92. ][Ed.: for the living voice has I know not what efficacy:]
[93. ][Ed.: Whatever you find has been put in this book superfluously or mistakenly, correct and amend it, or pass it over with your eyes shut, for to remember everything and commit no faults is divine rather than human.]
[94. ][Ed.: Fare[well].]