AS without doubt ever since the first propa­gation of Mankind on the face of the earth; there were before the Deluge, Cain and Cains and proud Giants, and after the Food, Cham, Nimrod, Esau and such like mighty Hunters, and injurious Oppressors of the servants of God, so from time to time, God out of his pa­ternal care and mercifull providence, hath excited some of his own, indued and armed with Wisdome, Authority, and power, not only to preserve his little ones from the greedy and rave­nous jawes of wicked persecutors, but also after a sort to resist theire cruelty and chastise them for their excesse and sury.

For we read in Genesis that Adam; immediatly after his Fall, had two sons (to wit) Abell and Cain, whom he taught in the knowledg of God; and Cain was a wicked person and slew his Brother, of which it grieved him not t [...]ll God had afflicted him with the fire and torment of his Conscience, and then he cried out Maior est paena mea quam ut sustinere possim. Gen. 4.13. After Cain, succeeded Lamech (born in the house of Cham) who corrupted the institution of Marriage, by ta­king to his Wives Adah and Zilla. And besides them, many others lived im­piously, even to the dayes of Noah, when all the Earth was corrupted; wherefore God destroyed all mankind with the rest of the Creatures from the face of the Earth, except Noah and those that were with him. Gen. 7.23. And againe after that deluge, when the Earth was replenished with a mul­titude of people, and consequently con­tentions were become so numerous, that there was not found any one able to determine of their plaints and suites, nor place spatious enough to [Page 3]hear the suitors: then according to Jethroes counsell to Moses, the ju­risdiction or charge of Administring Justice was divided among very many, and severall places assigned for that es­peciall purpose, that the people, as from so many Conduit-pipes, the aquam vitae the Law, that fountaine wherein the life and liberty of the people is conser­ved, might receive.

Wherefore the Israelites, that were the first people to whom any written law was given, were wont to pronounce their Iudgments in the gate of every Citie, that the plainnesse and indiffe­rency of their proceedings might ap­peare; so that none might need to go out of the right way to seek for Iustice, and of purpose to shew, that Iudgment was a divine thing; then afterwards in Curia & Foro the Athemians also in their temple called (by reason of a spe­ciall Iudgment) Areopagus, and in the place called Palladium et Pritaneum:

And albeit that the Caules, our neighbours (now called French-men) did hold their Assemblies for justice, only at Charnute and Charters, a place [Page 4]scituate in the midst of their Country that all the people might have indiffe­rent resort; after which order also the Brittons of this Iland did make their meetings, as it may well be gathered out of Caesars Commentaries, where he plainly writeth, that these Druides (which then were the Iudges amongst the Galls) had fetched that their man­ner of discipline out of Brittaine, where we now dwell; yet Nevertheles the Saxons our Ancestors (which suceeded them in this country) they retained the manner of the old Germans their owne elders (who as Tacitus writs Jura per pagos vicosque reddebant) and they made distribution of Iustice not in one towne or in the princes palace; but also sundry other speciall places within the country.

And truly the Normans, that invaded the posterty of the same Saxons here did not so much after the substance, as the name of this the Saxons order, which they found at their comming higher, for (in effect) they did but al­ter the word Gemote (which in the Saxon tongue signified in assembly or [Page 5]meeting together, into the french word Court or Cour (for so it is also found written) being a term of the self same force and signification.

This court (or Cour) therefore is derived of the latin Curia, Cooke Epist to his 4 In­stit. Curia a cura qui a est locus ubi publi­cas curas gerebant, or Curia [...] from the Lord, and so it is the Ks. Court or Palati­um Regi­um. which also is fetched from Cura, (as Valla wri­teth) whereby is notified, that heed and care ought to be taken in the deci­dings of Controversies: it signifieth properly both the assembly of men for the hearing of causes in variance, and the place also where that assembly is made; According to the first of which significations, the Saxons as I said, cal­led it Gemote a meeting, of Gemettan, to meet, and agreeably to the second, the kings house was first called a Court, because the cheife Court of Iu­stice was holden there.

But now of Courts some were called ecclesiastical, some Lay, and other some mixed (that is to say) both ecclesia­sticall and Lay.

Of this last sort I find but one name­ly the high Court of Parliament, which I call mixed, because it had the Bishops ioyned with the lay Lords to make up [Page 6]the second estate thereof, the first estate consisting of the Prince alone, and the third of the Commonalty, without any of the Clergy at all.

Of which Court, albeit it was rather sommoned to devise and create, reforme and repeale laws, than to put them in execution: yet forasmuch as it both ministred the matter whereupon all the other Courts do work, and had in some causes ordinary jurisdictions also, I will speake first, and then persue my division.

That which wee now (agreeing with the Scotts and Irish) do call a Parliament, the Frenchmen do call Les Estates or assemble de les estates, because with them there (as with as also) the King, Nobilitie and Commons (which be the three Estates of the land) do meet thereat to consult: and the same in Germany is termed a Dyet: for these other Courts that carry the name of Parliament in France, be but ordinary Courts of Iustice which as ( Paulus Jo­vius writeth) are thought to have been planted by us, (and of which our own Councels established in Wales, and in the [Page 7]North parts do beare the nearest shew and resemblance.)

This word Parliament (saith one) is Compounded of parium and lamentum, because (as he thinketh) Peeres of the country did at those meetings lament and complain each to other of the enor­myties of their country, and thereupon provided redress for the same, but this is not very credible.

But their opinion is more probable (as I think) which derive the Par­liament simply from the French word Parler, and that also from the Greeke [...] both signifying tospeake, and so by adding the termination, mem (which is common in the french tongue, as well to many nounes, as adverbs) do make up Parliament, meaning thereby an Assembly of men called together to speake, or confer of their advice and opinion, and so also it may not unfitly be called Parliament for that every man there doth or should speake his mind: but Laur. Valla misliketh that kind of Etymologie, Cooks [...] stit. fol [...] 110. se [...] 164. yet my Lord Cooke saith that it comes from parler lament, to speake ones mind [Page 8]and his authority is not mean.

I will not take upon me to set downe the very time, The begin­ning of the word Par­liament. in which the word Par­liament came first in use, but forasmuch as it was transported out of France, it is not unprobable to guesse that it began here shortly after the time of the Nor­man Conquest, One of the most au­thentique reports, The name Parliament was used before the conquest in the time of Edw. the Confessor, Cooke 1 Instit. sect. 164 page 110 that I think can be sound of that name Parliament, is in the statute made 3. E. 1. and common­ly called—where that assembly is said to be le Primer Parliament generall, a­pres coronement le Roy but yet that is not the very first use of the word, for in the statute called Articuli clori and published 9. E. 2. these words are read amongst others, Tempore progenitorum nostrornm, quondam regum Angliae in diversis Parliament is su is, &c. which word progenitorum and quondam regum must needs reach higher than to E. 1. that was but father to him that spake it.

So that I can willingly herein sub­scribe to the opinion of Polydore Virgill who in the eleaventh book of his Eng­lish history which contayneth the raigne of King Henry the first, that was [Page 9]son to the Conqu. writing of the great assembly at Salisbury, saith thus, at illud apposite habeo dicere reges ante haec tem­pora non consueuisse populis conventum consultandi causa, nisi perraro facere, adeo ut ab Hemico id institutum jure manasse dici possi [...], &c. and a little after, more galico vulgo Parliamentum appel­lant &c. and this is so much the more credible, as that King laboured by all meanes, and especially by restitution of the antient, lawes, (as all histories do agree) to heale the hearts of the Eng­lish men, which were before deeply wounded by the oppressions of his fa­ther and brother William, to the end that he might thereby the better keep the Crowne, of this Realme against his elder brother Rob. Witenage Mote Mi­chall Si­noth, and Michell Gemote, names, of Parliament before the Conquest. Cook In­slit. fol. 110 who both had good right, and had moved his claim there­to: but what time soever this Court be­gan to be called by the name of Parliament, this is certaine, th [...]t the same was before known to the Saxons (or English men) some times by the word Sinoth and Micell Sinoth, of the Greeke Synodos (now appropriated to ecclesi­asticall meetings only, and somtimes [Page 10]by these tearmes, micel-zemoce wizena­zemoze and aupa-picena zemoze, (that is to say) the great meeting, the meet­ing of all the wise men, for wizan sig­nifieth a wise man, and Gemote, a meeting: of which last word the names Shiyremoote, folemoote, and halymoote (that is to say) the assembly or meeting of men of a Shire of the men of a Towne and of the tenants of a Hall (or Man­nor) had their beginnings also. And as Synoth is more used in the acts of Par­liament themselves, so Gemote is more familiar to the histories: thus much as well of the present as of the antient usuall name, now let us looke, into the thing it self.

Like as in warr where the King is present in person, The confor­mitie and the reason of the E­states in Parliament and with him the Nobilitie, Gentry, and Yeomonry, there is the force and puissance of the Realme: even so in peace, wheresoever is the prince (as the head) to give life (that is to say, yield the highest and the last assent, and where the Baro­nie consistting of the Lords spirituall and temporall, and the Commonalty made up of the Knights and Burgesses) [Page 11]be (as the body) present at his comman­dement, to deliberate, conferre, con­sult and consent, there is also the Coun­cill and policie of the Realme, so that forasmuch as every man, (from the highest to the lowest) is there either in person or by procuration, therefore of right every man is said to be bound by that law vvhich doth passe from such an assembly.

And this frame of policie, is both Na­turall and Harmonicall: 1. Naturall, in that it hath an imitation of the naturall body of man, truly called [...] a little vvorld, out of the 3 cells vvhereof, namely, the head, breast and belly, the vvhole three povvers of the soule do open and utter themselves:

2 Harmonicall, because from such and so tuned a Base, Meane, and Treble; The begin­ning of the Parliament there proceedeth a most exquisite con­sent and delicious melody, the begin­ing of vvhich manner of consultation, Parlia­ments hol­den long before the Conquest. Mirror c. 8 sect 2 and namely, vvith us of this Realme I see not hovv I can derive it from any other time then from that in vvhich the Germans or English nation did set their first foot on this land to in­vade [Page 12]vade it, for Cornelius Tacitus vvriteth thus nec regibus infinita potestas, de mi­noribus rebus principes consultant, de ma­ioribus omnes.

Neither did they (together vvith the change of the soile) make change of this their vvonted manner of deli­beration: for it is yet extant in monu­ments left behind them, The con [...] ­nuance of the Parlia­ment untill the Con­quest. that after their coming hither, they frequented the same order in counselling vvhich they had used in their ovvne countrey be­fore, These two Kings are great exem­plars of grave wis­dom, and would not trust their own judge­ments in a [...]tter of so [...]gh con­cernment, but consul­ted their wisemen a­bout it knowing that plus vident o­culi quam oculus. for proofe vvhereof I might call Beda the Saxon historiographer to vvittnesse, vvho (reporting that the Christian faith tooke roote by little and little amongst them in their particular Kingdomes vvithin this land) vvriteth that King Edwyne of Northumberland vvould not embrace the preaching of the Gospell before he had communed and consulted with his freinds and Nobility, and Wisemen, and that Sigeberth the King of Eastsex, being likevvise moved to be baptized, did first call a Councell of his subiects, and finding them all to favour the motion, did then himselfe also assent unto it.

But because the Synodes (or Parlia­ments) themselves be most faithfull witnesses of their owne doings, and for that also the kingdome of the west sax­ons prevailing over the rest, and meet­ing (as it were) all their crownes to make on for hereselfe, did in the end be­come mistresse (or Monarch) of the whole Heptarchie (or seven King­doms) into which this Land was first divided, I will for a while leave histo­rians, and come to the Synodes, first shewing by one or two examples, what persons were wont to be present at the parliament of that kingdome, and then confirming the like to have been used, after such time as the whole land was reduced to one entire estate and monarchie.

Ine the King of Westsex who began his reign, about the year of the Incar­nation of our Lord Christ 712. begin­eth his Parliament thus: I Ine by Gods guift King of the west Saxons, with the advice and teaching of Cenred my father, Ireledde my Bishop, and Ercenwold my Bishop, and with all mine Aldermen and eldest wisemen of my people, and also [Page 14]a great assembly of Gods servants was carefull concerning the health of our soules, and the establishment of our king­dome &c. Now let us see if three estates of Parliament (that is to say) the King, the Nobilitie, and Commons, may besound here.

First the Kings name is expresly ad­ded, the Noblitie is signified under these Bishops and Aldermen; for be­fore the division of the Realme into Shires, every large Territorie had an Alderman or governor: who was after the allotment into shires for the most part an Earle, in token whereof all our Earles to this day do beare the name of one shire or other.

The Commonalty is partly included in the words: the Eldest wisemen of my people, which betoken the laytie, and partly in the words, A great assemblie of Gods servants vvhich do notifie the Clergie so called then, as it may ap­peare by the first Chapter of the very same lavves, for that they vvere conse­crated to Gods service. And lest any man should thinke that these estates vvere called together more for their [Page 15]advice and counsell, to be given to the king, then for any authority (or in­terest) that they had in making the lavve, the preamble calleth those lavves, our dooms, or Iudgments. And the pur­veivv saith, wee bid or command, in the plurall number, vvhich also may not be restrained to the King only for honour sake, as vvee novv use to speake, for he is there named I Ine, in the singular only: Thus much I note once for all. That I be not hereafter troubled to re­peat the same thing often.

About one hundred yeares after the death of this Ine, one Aldred a King of the vvest Saxons also, as he calleth himselfe, but rather King of the Eng­lish men and Saxons (as Asserius sai­eth that vvrote his life) did as he tel­leth in his preface to his lavves, gather together and put in vvriting certain ordinances made by vvise men in sun­dry Synods of sundry former Kings: as namely Ine aforesaid, Offa King of mid­dle England, and Ethelbert of Kent, the first christned Prince of all the Sax­on nation; vvhich collection of lavves he also saieth that he shevved to all his [Page 16]vvise men, and they also thought them meet to be observed, but what maketh it to the three estates (will some man say) that the kings and their wisemen (which may well seem to be but their privy Counsellors) did establish lawes. yes very much: for here the word Witena. (wisemen) doth include the Nobilitie and Cōmons because they be Counsellors of the Realme for the time in respect whereof the assemblie of them was of some, called Witena Gemote a meeting of the wisemen as I told you, And of other it is termed Commune consilium Regni, the comon counsell of the Realme, and that this must be so understood in this place, I will use none other argument, then the testi­monie of Alfred himselfe drawne out of the same place; for he saith (as you have heard) that the lawes of the King Ine were made by a Synode of wisemen, and what those wisemen were, you here also understand by the report of King Ine himselfe And the stile of his owne lawes (that is to say) by the Nobilitie and Comunalty besides the King.

Furthermore that I lose not another [Page 17]advantage offered me by this au­thoritie, I must also gather hereby, That not only the Kings of Nor­thumberland, Essex, and Westsex u­sed the three estates in making their Lawes, but also that they of Kent, and middle England, maintai­ned the same order: for King Al­freds words (as you see) are one and the same for them all, and then consequently their manner was one and the same through all.

But now that I may at the length leave these heptarchies or petie Kings, and passe to the Monarchies and great ones, the same Alfred af­ter that the whole nation had yeild­ed themselves unto him, and were shrowded under his protection a­gainst the furious storm of the Da­nish invasion, did at one time con­clude a peace with Guthrum the King of the Danes, the stile where­of beginneth thus: This is the peace that King Alfred and King Gu­thrum and all the wisemen of the English nation have taken &c. Loe here you see ( Ealra Witena Gemote [Page 18]an assemblie of all the wisemen) After him, Edward called his wise­men to Excester, and consulted with them for the better observati­on of the peace of his own Realm, And he also at another time by the advise of his wisemen renued and confirmed the league that Alfred had before taken with the Danish Captain.

King Ethelstane concludeth his famous Parliament holden at Grateley thus: All this was ordai­ned in that great Synod at Grate­ley, at the which was the Arch-Bishop Walfhelme with all the No­blemen and Wisemen, that King Ethelstane gathered together, and the same King did also afterward call another assemblie of his wise­men, to Excester to consult for the better execution of those former Ordinances.

Edmond the King summoned a great Synod at London both of the order of the Spiritualty and Tem­poralty, the which (in the second part of the Law there made) [Page 19]he called by a generall name, his (Witena) wisemen, and thank­eth them all for their help in that advice.

And after him King Edgar pub­lished certaine lawes which were made (as he saith) by the Coun­sell of his wisemen. K. Edgar made lawes frequenti senatu, he began to raign, 959. Lambard. f. 62. Etheldred had consi­lium sapi­entium and be began to raign 979. Lam. f. 88.

The like title and conclusion have those statutes also which King Etheldred ordained at Woodstock and the league which he made with Anlaf, another of the Captaines of the Danish armie, is intituled to be made by him and his wisemen.

And certain other acts there be (though hitherto not imprinted) of a Parliament that was assembled in the yeare of Chist 1008. which fell under the raign of the same King, which are there reported to have passed under the authority of the King and his wisemen, both spirituall and lay, in which said last ordinances, this one thing for this purpose is worthy of observa­tion: That whereas in the begin­ning of the lawes all the acts are [Page 20]said to passe from the King and his wisemen both of the Clergie and Laytie, It is also supposed that the se­natus con­sultum de monticolis Walliae, was in this Kings time, the title is Consultum quod An­gliae sapi­entes & Walliae consiliarij de monti­colis fece­runt. Lamb. 94. in all the body and processe of the law each statute saith thus: And it is the advice of our Lord and his Wisemen so (as it seemeth plainly) that it was then a recei­ved speech, to signifie both the Spi­ritualty and Laity that is to say the Nobility and Comons, by the onely word, Witena. (or Wisemen.)

Finally those lawes of the great King and Monarch Canute or (Knoate) which he made at Win­chester and be yet remaining, do beare face and testimonie that they were made by him and his wise­men: Se of this Guliel. Lamb. 97. And there is an antient writ­ten treatise intituled Modus tenen­di parliamentum tempore regis Ed­wardi filii Etheldredi to be seen in many hands, purportng the very order, forme: and manner of all this stately Court and Assemblie.

Now as these written authorities do undoubtedly confirm our asser­tion of the continuance of this manner of Parliament, so is there [Page 21]also unwritten law (or prescrip­tion) that doth no lesse infallibly uphold the same: for it is well known that in every quarter of the Realm a great many Bo­roughs do yet send Burgesses to the Parliament, which neverthe­lesse be so antiently, and so long since decayed and gone to naught, that it cannot be shewed that they have been of any reputation at a­ny time since the Conquest, and much lesse they have obtained that priveledge by the Grant of the King succeeding the same; so that the in­terest they have in Parliament groweth by an ancient usage before the Conquest, whereof they cannot shew any beginning which thing also is confirmed by a contrary usage in the selfesame thing: for it is likewise known, that they of ancient demeasne do prescribe in not sending to the Parliament, for which reason also they are neither contributaries to the wages of the Knights there, neither are they bound by sundry Acts of Parliament [Page 22]though the same be generally penned and do make no exception of them.

But there is no ancient Demeasne saving that only which is described in the book of Domesday under the title of Terra Regis, which of ne­cessitie must be such as either was in the hands of the Conquerour himselfe (who made that booke) or of Edward the Confessor that was before him.

And so again if they of ancient demeasne have ever since the Con­quest, Mirror, c. 1. sect. 2. prescribed not to send Bur­gesses to the Parliament, then (no doubt) there was a Parliament before the Conquest, to the which they of other places did send their Burgesses; which seeing it is so, let us come neerer and examine whether the same order have con­tinued since that time or no. The conti­nuance of Parliament after the Conquest.

To looke for a Parliament (assem­bled of the English nation and Commons) soon after the Conquest were but to labour without ex­pectation of good speed; for Silent [Page 23]leges inter arma. There were in the time of, and since the conquest in the raigns of H 1. K. Stephen H. 2. R. 1. K. John H. 3. &c. 280. Parliaments and acts made at e­very session Cook 1. Jnst sect. 164. p. 110. See Polyd. l. 11. and Hollingsh, p. 354. of the begin­ning of Par­liaments in England. And during all the raign of the Conquerour either the sword was not put up into the scabbard, or if it were, the hand was alwayes upon the hilt ready to draw it again.

So unwilling on the one part were the English men to take the yoak, and more that rather their obedi­ence was to be compell'd, then their opinions to be consulted, and so haughty on the other part were the Normans victors, that to be called an English-man was in their eye a great contumelie and re­proach.

His son William also did rather pretend in word, some release of the former austerity in government than perform it in deed and ex­perience: But his other son (the first Henry that ever raigned here) did not only at his Coronation promise restitution of St. Edwards laws (as we call them) but also delivered out his free Charter of the Grant of the same; in which (as M. Paris reporteth he acknow­ledgeth [Page 24]that he was crowned by the Common-Councell of the Barons of the Realme of England and there it may happily seeme strange to affirm that this was a full Parlia­ment; in the which there is no other mention but of these Barons only: But if it be considered, first, that the Germans expound and ren­der the word Baro, by Freehears, a freeman, then that Math. Paris saith that the Citizens of London were at that time called Barons: And also that even yet Burgesses of the Five Ports do passe under the same name of Barons, and that every man (almost) hath his Court-Baron; It shall not be altogether without ground, to say that both the Nobility and Com­monalty of the Realme were meant under these words (the Barons of the Realm) the rather because that speech is accompanied with the words (Common-Councell) and for that also, the selfe same Author doth afterward use the words Comunis assensus Baronagii [Page 25]when he intendeth to signifie a just Parliament Ingulphus who died before 1109. saith Rex Eldredus convocavit magnates, Episcopos pro­ceres & optimates ad tractandum de publ. negotiis Regni.

Howbeit since I labour not with a­ny penurie of proof, I wil relinquish the advantage of this matter, desi­ring only that they may be called to memorie which Polydore Virgil hath before acknowledged concerning the restitution of the form of the Parliament made by this very same King, of whom also the Saxon Chro­nicles of Peterborough Abby do testifie, that in the yeare after Christ 1123. he sent his writers over all England, and bad his Bish­shops, Abbots, and all his Theignes (which signifie asmuch as Barons before) that they should come to his Witena Gemote, on Candlemas day to Glocester

But to leave him, and to leap o­ver Stephen, because he hath stri­ven longer for the Crown then he enjoyed it. King Henry the second [Page 26](saith Mathew Paris) in the year of our Lord Christ, 1185. Convo­cavit Clericos Regni, & populum cum omni nobilitate apud fontem Clericorum.

And yet again to passe over his two sons, Richard and John, whereof the one spent the most part of his Raign in battell abroad, and the other in Civill warrs at home. I read in the same Author, that King Henry the third, did in the year of our Lord, 1225. call together Omnes Clericos & laicos totius regni; Which assembly the same writer also in some places ex­presseth by the words Vniversitas regni, but what need I to hang long on the credit of Historians, seeing from this time downward the authentique writers of the Par­liaments themselves do offer mee present help.

The great Charter of England (which passed from this King about this time, and for which the English men had no lesse striven [Page 27]than the Trojans for their Helena) beareth no shew of an Act of Par­liament, and yet I will prove by the Depositions of two sundry Par­liaments, That it was made by the comon assent of all the Realme in the time of King Henry the third, for so saith the statute called Confir­matio Chartae. Anno. 25. E. 1. in flat Termes, and the statute made at Westminster Anno. 25. E. 3. Cap. 1. saith, that it was made by the King, Peeres and Commons of the land: in the 20. year of the same King Henry, the statute of Mert [...]n was published, which saith thus. Provisum fuit & consessum tam a praedictis Archiepiscopis Epis­copis, Comitibus, Baronibus quam ab ipso rege & aliis.

And in the 52. yeare of his raign was the statute of Marle-bridge made, provideat (as it self speaketh) ipso domino rege ac con­vocatis discetioribus eiusdem Reg­ni tam majoribus quam minoribus provisum est &. statutum. &c.

The statute of Westminster the first, which was made in the third yeare of E. 1. hath this title. The establishments of King Edward made by this Councell and by the Assent of the Archbishops, Bishops Abbots, Earles, Barons and all the Comonalty of the land thither sumo­ned. The statute made at Gloucester in the 6. year of the same Kings raign is there said to be thus made. Purrelant le Roy & apelles le pluis discretes de son Royalme auxi­bien des greinders come des meindres establie est & concordantment orde­nie.

To draw to an end, King Edward the second held a Parliament in the 14. year of his raign wherein are these words. Le (Roy per assent des Prelates, Counts, Barons, & tout le Comunaltie de son Realme en le Parliament &c. and the like speech hath he in another statute that he made. Ne quis occasionetur pro morte Petri de Gaveston.

I do not think that I shall need [Page 29]to speake for further proofes a­mongst the Records of Parliaments after this time: for they do from henceforth not only shew them­selves in such store and plenty, but also set forth the severall states themselves, the duty of their pre­sence, the paines of their default or departure, and sundry other cir­cumstances so particularly and plainly, that as I might well be charged (if you would stand up­on them) in a matter not doubt­full to have used speech nothing at all needfull: and yet least any man should suspect, that any of the two estates of this Assemblie deri­ved his voice in Parliament from the authority of any of these later lawes, I must leave him to under­stand that in one short Statute of Parliament (holden in the 5, year of King Richard 2. statute 2. ca. 4. he may reade it 4. severall times plainly spoken, that this was done anciently and of old time.

So that here again also Prescrip­tion [Page 30]is ready to serve the turne, and to say the truth, this one law may stand for an Interpreter of all the rest, for whether they be said to be made by the King and his Barons, or by the King and his Clergie and Laytie, or by the King and his discreeter men, both great and small, or by the common. Assent of all the Realme, as I have already shewed, or by the King and his Wisemen, or by the King and his Councell, or his Comon-Councell, or by the King, Earles, Barons and other Wisemen, or after such other like phrases whereof you may meet with many in the volumes of Par­liament; it cometh all to this one point, namely that the King his Nobilitie and Commons did ordaine them.

And (which is more) if you shall find any act of Parliament seeming to passe under the name and authoritie of the King only (as some have that shew indeed) yet you must not by and by judge that [Page 31]it was established without the Assent of the other estates.

To take one example for the rest, The statute of Gloucester (made the 6. E. 1.) speaketh thus: Our soveraigne Lord the King, for the amendment of the land, hath provided the statutes under-written &c.

But yet the statutes made at Westminster (in the 13, year of that King) and the statute of Quo Warranto (set forth in the [...]0. year of that King also) [...]eciting that statute of Gloucester, do plainly acknowledge; the one, that it was provided by the more discreet men of the Realme, aswell of the high as of the low degree being called together; and the other, that it was made by the King, cal­ling together the Earles, Prelates, Barons, and his Councell, And therefore it was well noted by Judge Brook, That though magna Charta, and sundry other old sta­tutes do run in the name of the Prince [Page 32]only, yet the other estates are sup­plyed in all good understanding.

Againe whether the forme of an Act be thus. The King with the Assents of the Lords and Com­mons doth establish, or thus: It is enacted at the request of the Lords and Commons whereto the King assenteth, or thus: by the Assent of the King, and of the Lords spirituall and Temporall, and of the Commons it is enacted, or thus: It is enacted by the autho­rity of this present Parliament; It is also all one in effect and substance: for the words ( assenteth and enacteth) are equivalent in this case, 7. H. 7.14. & 2 H. 7. [...]7. as it is holden 7. H. 7.14. &. 2. H. 7.27. whereas otherwise the necessitie of the Assent of all the 3. estates of Parliament is such, as without any one of them the rest will lose their labour: For it fell out upon a time, that the King in Parliament willed that a certain man should be attainted, and should lose his hands, whereunto the Lords [Page 33]assented. But because there was no­thing spoken of the Commons, it was adjudged by all the Iustices (4. H. 7.18.) That this was no Acte that might binde, 4. H. 7.18. and there­fore the partie was restored.

Hitherto of the Continuance and Assent of this our first and highest Court, This Court of Parlia­ment ma­keth, inlar­geth, dimi­nisheth, a­brogateth, repealeth, and revi­veth Lawes statutes &c. concerning matters ec­clesiasticall, capitall, cri­minall, com­mon, civill, martiall, maritine, &c. Cook. 1: Inst fol. 110. sect. 164. see 4. Inst. chap. Parlia. ment. whereunto after that I shall have added a word or two of the jurisdiction thereof, I will proceed to the rest, if all judgements (as Cicero said) be conversant either in the punish­ment of offences, or in the decision of controversies, then is the Judg­ment of our Parliament of as ample authority as the assent of any or all other Courts whatsoever: for it declareth the lawes that do bind all persons in all Causes aswell eccle­siasticall as temporall, whereof you may see a great many examples in the volume of the old saxon Parlia­ments, how strange a thing so ever the popish Clergie in former times have thought it to be, it hath juris­diction [Page 34]also in such causes which have need of help, and for which there is no help by any law alrea­dy in force. And whereon the erronious Judgments of any other Courts must be reversed by a high­er authority, this Court doth not only reverse the errors of the upper Bench, formerly called the Kings Bench, which is superior to all o­ther, but it may also amend the er­rors committed by the Parliament it self, if any such shall at any time appeare.

Ecclesiasticall Courts were ma­ny in number, & diverse in nature, whereof the Chiefe was the Convo­cation of the Clergie of the whole nation of England and Wales, which was assembled together with the estates of Parliament, and it consi­sted of the Deanes, Chapters, Arch­deacons, Procurators of all the Ca­thedrall Churches, the next were the 2. provinciall Synods of Canter­bury and of Yorke, to the later of the which, there were only three [Page 35]Bi­shopricks subject, that is to say, Durham, Carlisle, and Chester, and all the rest owed their obedience to the See of Canterbury.

After those were the generall Courts of the Arch-Bishops of Canterbury (that is to say) the Consistory (or Court) of the Arches for Appellations, the Court of Au­dience (of the Chancellours Court) which was wont to be in the Arch-Bishops house; The Commissaries (or the Praerogative) Court (which is now in being) for pro­bate of Testaments, and the Court of Faculties for dispensations; then followed the speciall Courts of this Arch-Bishop, namely his Consisto­ry holden by his Commissary at Canterbury for his diocaesse, and lastly the Court of those peculiar Deanaries which did belong unto him, and do ly in the diocaesses of other Bishopps; The other Arch-Bishops (and each other Bishop) had in his owne Diocesse the Court of his Chancellour, and the [Page 36]Court of his Archdeacon or his Officiall.

But forasmuch as the description of these ecclesiasticall Courts, per­teineth to another learning, (I meane to the Civill and Canon Laws by which they were gover­ned) and do withall require a dou­ble treatise by themselves, I will content my self with this bare enu­meration of them at this time, and bend my labour to the discovery of the Lay (or temporall) Courts that now have place amongst us.

Lay Courts were of two sorts, The sorts of Lay Courts in antient time. at the first only base, and high; con­cerning the beginning whereof, I read that even as Moses (the spe­ciall minister of Justice appointed by God) finding himself unable to sustain the burden of deciding all the Controversies of the people, Deut. 1. Exod. 18. did set Judges over Tribes, Hun­dreds Fifties, and Tenths of the multitude, to whom he referred the determination of smaller cau­ses, reserving to himself the know­ledge [Page 37]of matters that were of grea­ter importance; so also that Sax­on (but Christian King of Eng­land) Alfred, divided his whole Realm of England first into Shires, Division of the Realm for juris. diction. then those shires into Rathes, Rapes, or Rideings, and these again into Wapentakes or Hundreds; and lastly, those also into Leets, Barons, or Tything, and did withall establish jurisdiction in every of these, per­mitting to the Reeves or Judges of the lower roomes, authority of hearing smaller suites, granting greater power to the Shiriffs and Aldermen, which have charge of greater Assemblyes, and detaining to himself the decision of such mat­ters as by just cause of appellation, (either for Law or equity,) should be brought unto him.

This Court of the whole Shire was of two sorts, whereof the one then called Scyre-Gemote, that is the Assembly of the Shire, and now termed the Sheriffs turn, was then (as now also) holden twice in one [Page 38]year: And this Court was of like jurisdiction, to the Court of the Leet, or of the Boroughs or Ty­thing, as it was then called: The second and the Hundred Court (then named Hundre des-Gemote) was in those appointed to be hol­den once in a month at the least, and that was of like nature to the County Court (which is now kept every month also) unto the Court Baron antiently called healgemote, and corruptly halymote, that is (as I said) the Court of a Hall (or chief place) which is now at this day to be kept, and maintained once in three weeks, if the Lord will so have it.

I read further more in the Laws of the Saxon King Edgar, thus: ne Gesece nan man Sone Synz &c. Let no man seek to the King in matter of variance, unless he cannot find right at home; but if that right be too heavy for him, then let him seek to the King to have it lightned.

The very like whereof is to be [Page 39]seen (in effect in the Laws of Ca­nutus the Dane sometimes King of this Nation also. The hygh Court of justice be­fore the Con­quest for Laws and equity.

Out of which laws I gather four things.

First, that every man had means to use in these base Courts at home in the Countrey for the recovery of his right.

Secondly, Then that no man ought to use it out of the County, or to draw his plea from thence without good cause, both which things lye plainly in the letter of this Law.

Thirdly, that the King himself hath a high Court of Justice where­in it seemeth, that he sate in per­son, for the words be: Let him not seek the King.

And lastly, that the same Court of the King did judge, not only ac­cording to meer right, and Law, but also after equity and good con­science.

For first the words be: unlesse he cannot find right at home, by which [Page 40]it is permitted that then he might use to go to the King for right.

Secondly Again, if that right be too heavy, then let him seek to the King &c. whereby it is meant, that he should have the rigor of the Law mitigated by the conscience of the Prince, and after this order, and in these two sorts of Courts was all Justice administred untill the time of King William the Conque­rour [...] during whose reign (as allso under the Government of King Rufus his son) it is to be thought, that the ordinary course of Justice was greatly disturbed, as well by reason of the intestine and sorraign wars, as also because that these two Princes governed by a meer and absolute power, as in a Realm ob­teyned by Conquest, but yet it was so farre off, that any of them did ut­terly abolish these Courts, That the same did not only remain du­ring all their times, (howsoever put to silence for the season) but also had continuance afterwards, [Page 41]and do yet (as they may) here bear life amongst us: for, as I said, those base Courts of the Shires, Hundreds, Boroughs, and Man­nors, do yet continue in manuer the same in substance that they then were, and that the pleas ought no more to be taken from then now in our dayes (without cause) then they ought to have been, may evi­dently be proved by the writs of Tolt, pone accedas. ad Curiam, and Recordari, vhich wee now yet use, and that to this only end, to remove suits upon cause out of one Court into another.

The like I may also affirm of that high Court which then followed the King himself, for albeit that many particular high Courts be now since that time advanced, by reason that the multitude of suits (still increasing with the iniquity of the age of, the World,) would not suffer them all to be ordered in one place, without both into ler [...]ble delay of matters, and grievous [Page 42]vexation of men, yet nevertheless if ye will throughly behold the matter, and subject about which all these Courts are now occupied, you shall perceive that they are but as it were so many branches sprung up out of that one tree or stream derived from the same spring and sountaine.

For letting pass those Courts of the Country which I have already touched, also those other small Courts of record that be in Cityes and Townes corporate, Pipowders of Pies and powldres, that is dusty feet: because it is for Tra­vailers to the sayr yea, and the Pipowders Court it self that lasteth no longer then the Fayr, All our higher Cours at this day be either Courts of right and Law, or else of equity and conscience, as they then were, although they now require another subdivision, than they then had; And that (if you will) may be this.

The Courts of Law do either handle civil or criminall causes: The late division of Lay Courts And these Civill causes be either moved between the Lord Pro­tector [Page 43]and the people of England (formerly between the King his tenants and subiects) or else be­tween one subiect and another.

Those Courts of Law that hold plea of common or civill matters that grew between the Prince and subiects be these.

The Exchequer devised for the safe custody of the lands formerly called the Crowne lands, and for the faithfull answering of the reve­nues of the same. The Court of wards and Liveryes, and the Court of the dutchy of Lancaster, both which are now altered.

And the Chancery Court (at the least) so far forth as the same hath to do with Petitions, traverses — de droith and such like.

Those other Courts of Law that have jurisdiction of civil or Com­mon Pleas arising between, subiect, and subiect, be these. The Common Place or Bench: The Marshalsea for matters heretosore within the vierge, or limits assigned to the [Page 44]Kings house or Palace: The Admi­ralty Court, which was for marine Causes: And the upper Bench, in time past termed the Kings Bench, so far forth as it yet doth retain jurisdiction in matters of debt, Assumptions, Actions upon the Case, and such other things properly tryable in the Common Place, and not there.

Criminall causes do generally belong to the upper Bench, and have formerly belonged to the Starre Chamber, or else particular­ly do appertaine to the Constables Court, to the Marshasie, Admi­ralty, Goale delivery, Oyer and Detorminer, and Sessions of the Peace. And these be the Courts of Law that have ordinary resort and jurisdiction. The Courts of Conscience be these, First the Chancery open to all men at all times. Secondly the Court of the Request, that did hear only the suits of poor men, and of the Prin­ces servants. Thirdly The Chan­cellors [Page 45]Court, that was within the Exchequer: and Fourthly, two Councills, which formerly were established, the one in Wales, and the other in the North Country, both consisting of President and Councill, now taken away, which were like unto those which in France are called Parliaments, as I said before.

But now to the end that it may the more evidently appear how, and by what degrees of increase, these many Courts have sprung out of that one, it is requisite that I pro­ceede to the history of King, Willi­am the Conqueror (where I left) and to descend from him, down­ward, untill I have set all on foote. The Court of Exchequer. The Autho­rity of this Court is of originall jurisdiction without any Commission Cook: 4. Inst. c. 11. p. 130.

It is confessed by all writings that the Conqueror after such time as he had suppressed the forces of those that made head against him here, did immediatly cause the whole Realm to be exactly survey­ed by Shires, and Hundreds, seve­rally aswell for the understanding [Page 46]of the woods, pastures, meadows, and tillage thereof, The first survey of the King­dome was by Alfred about 872. the Register thereof was kept in his treasury at Winche­ster. Dani­ell f. 11. as also of the profitts of Churches, Mills, Vil­laines, and of all other Commodi­ties whatsoever. The record of which survey was then called Domesday Book, and was appoynted to be kept in the Exchequer at Westminster, where it now resteth. And that Court did he then also newly erect for the ordering of his revenues, after the name of the Exchequer: in Normandie it had not only the government of re­venues of the Duke there, but was also the soveraigne Court for ad­ministration of justice amongst his subjects, Custom Normand. 48.52.635. and so continued untill that Lewis (the 12. King of France) converted it into a Court of Parliament consisting of Presi­dent and Counsellors, and establi­shed it at Roan in Normandie, where it now remaineth: But this his Exchequer in England had only the direction of his demeasns and re­ceipts, the administration of Com­mon [Page 47]justice continuing still in that other Court of his as it was before his coming hither: For proofe of which matter I call to witnesse Gervasius Tilberiensis, a learned man that lived so neer to the time of the Conquest, that he confesseth he had talk with Henry Bishop of Winchester, which was son to the Conquerours sister.

This man was an officer of the Exchequer, here, and penned speci­all dialogues of the observations of the Exchequer which he dedica­ted to King Henry the second, and are yet in the Exchequer in the Black Booke there, in the first part of which his dialogues, ca. 1. he writeth (for the advancement of the Antiquity of the Exchequer) that it was brought out of Norman­dy by the Conquerour; and for the authority of the Court he hath (amongst other words) these following: Nulli licet statuta Scac­carii infringere, vel eis quavis te­meritate resistere, habet enim hoc [Page 48]commune, cum ipsa domini Regis curia, in qua ipsc in propria persona jura decernit, quod nec recordationl, nec sententiae in eo latae, liceat alieni contradicere.

Whereby it is plainly proved, the Court of the Exchequer was at that time a distinct Court from that Court of the King, in the which he himself sometimes, and com­monly his justice (called then Prima justitia) did use to sit.

The one Court, having autho­rity over the Kings demeasns and receipts (as Gervasius in all that worke at large discourseth) and the other using the power of distri­buting common justice, as his words in this place do sufficiently purport.

And therefore I cannot (but here by the way) note the error of them, which do maintain, that the Exche­quer was (in this time of King Henry the second) a Court of whatsoever Common pleas for all subjects, and which for proof of [Page 49]their assertion) do alledge the Title of Mr. Glanvil [...]'s book in part thus: Et illas solum leges continet & consuetudines secundum quas placi­tatur in curia Regis ad scaccarium, for overthrow whereof, first, I say, that the words of this title be not the words of Glanvill himself, but of that man (whatsoever he were) that published his book by print. for he entituleth the book thus, Tractatus de legibus & tempore Reg is Henrici secundi compositus, illustri viro Ranulpho de Glanvill juris regni & antiquarum Consuctudi­num eo tempore peritissimo, which doth plainly discover, that he spea­keth of Glanvilla as of another man, and which also lived not then but at another time.

Secondly I affirm, that if it were the speech of Glanvill himself, yet (if you will take the rest of his words with you) then you shall see that they have another meaning: for the words stand thus together, Secundum quas placitatur in Curia [Page 50]Regis ad Saccarium & coram Justi­ciis ubicunque fuerint: which words coram Justiciis ubicunque fuerint) do set forth the other Courts of the King whereof I now speake.

Lastly, I undertake to shew, not by the title, but by the Text of Glan­vills owne booke, that in his time the Kings Court was one, and the Exchequer another: for through­out his whole worke, he called the Court of Common P [...]eas Curiam Domine Regis, And the Stile of the writ therefore is, quod sit coram me vel Justiciis meis: But when he cometh to speake of the Exchequer, he talketh of Acompts to be made to the King there, and of none o­ther matter: as namely in the 7. book Ca. 10. where he hath this, Si dominus Rex aliquam custodiam alicui commiserit tunc distingui­tur utrum ei custodiam pleno jure commiserit, ita quod nullum inde reddere compotum oporteat ad Scae­ [...]arium, aut aliter.

But before that I leave the raign [Page 51]of this King Henry the second: I must add this also, that he in the xxiii. of his raign did (by the ad­vice of some of his Bishops) cut the Realm into 6. parts, and to every of these parts appointed three Justices, the which are (by Henry Bracton) called Itinerants, and in Brittons Book, Justices in Eire qua­si errantes, as Gervas of Tilbery expoundeth it. The proper names of which Justices are set down by Roger Hoveden, who also describeth their circuits, not to differ much from the same that our Justices of Assize do now ride.

And so I conclude, that not only during all the time of the Con­querour himself, of William his son, and of his other son Henry the first, (which was a peaceable Prince, and a maintainer of the antient Laws, and learned in them, whereof he had the name (Beauclark) but also under the government of King Stephen, and of this Heury the se­cond there was one Court follow­ing [Page 52]the King, which was the place of Soveraign justice, both for mat­ter of Law and conscience; and one other standing Court which was Governess only of the lands and revenues of the Crown, The first of which was then called Curia Domini Regis & Aula regia, Bract. fol. for that the Prince himself did many times fit in person there, and had Justices (a latere suo residentes) as Bracton saith, namely, his chiefe Justice, Chancellour, Constables, Marshall, and others. The later was then (as it is now) cal [...]ed Scac­carium eo quod lusibilis Scaccarii formam haberet. If you will give credit to Garves. Tilber. or else it took the name of Statarium, Eo quod stabilis et firma effect ibi as Paulus Aemilius and (after him) Polydore Virgil doth write of it and in this the Prince sate, not perso­nally at any time, but his chiefe Justice as President, and then the Chancellor of the Exchequer the Treasurer and Barons. The Common Place.

And in this manner that high [Page 53]Court of the King continued untill that Henry the third in the 9. yeare of his raign (which was about the time in which he aspired to the age of xxi, years) granted unto his subjects that great Charter of the liberties of England in the 11. Ca. whereof he ordained thus, Commu­nia placita non sequuntur curiam nostram, sed teneantur in aliquo loco certo: whereupon followed two things, The first, This Court, was in be­ing before this statute it doth not appeare that it was then newly e. rected by the stat. of M. Ch. that this Court was directed for the determination of all such pleas as did not concern the Crown and dignitie of the Prince but were meerly civill, and did belong unto the subjects be­tween themselves. The second, that this Court was established in a place certain (and that was at Westminster) to the end that the people might have a standing Seal of Justice wher to they might re­sort for the tryall of their owne causes, and not to be driven to follow the King and his Court, but only where the matter re­specte [Page 54]him.

And after this, fo. 105.108. all the Writs that are recited in Henry Bractons book (which was written in the latter end of the raign of this King Henry the third) have this Com­mandment to the partie, quod sit coram Justiciariis meis apud West­monasterium, and not coram me vel Justiciis meis, as the former form in Glanvill was.

And thus began the Court, which (because it hath power over Com­mon-Pleas) wee now call the Com­mon-Place. About this time also, or not long after, some other Courts of Justice were likewise opened, The booke called Britton as it may partly appear by Henry Bracton, but more plainly by John Britton, which followed immediatly after him, for in the beginning of the raign of King Ed­ward the first, this John Britton then Bishop of Hereford (whose name Mr. Bale in his Centuries (or his Printers) mistaketh and calleth Bekton) being singularly learned [Page 55]in the Laws of the Realm, did at the commandment of that King, and in his name) compile a book now imprinted and named Britton: in the beginning whereof he d vi­deth all jurisdiction thus: First, that the King himself had soveraign jurisdiction above all others in his Realm to Judge in all causes what­soever: Secondly that the Marshall of the Kings house had the place of the King to hear and determine the pleas of the Crown within the verge, and that the Justices in Erie had like authority in every County once in 7. years. Thirdly, that the Justices which followed the King wheresoever he went and sate in his place, had conusance of erroni­ous Judgement, Appeals, and other matters of the Crown. Fourthly, That the Coroner of the House­hold had his proper power within the verge and that he and others had the order of weight and mea­sure throughout the Realm. Fiftly, That Sheriffs, Coroners, Hundre­dors [Page 56]Burgesses, Serjeants and Beadles, had (and so have) their Courts within each of their par­ticular limits. Sixthly, That Justices (being continually at Westmin­ster) have power over Common Pleas. Seventhly, That the Exche­quer at Westminster had authority concerning the Kings Debts and Feeds, and all things incident there­unto. And Lastly, that other Justi­ces had the charge of Assize of the deliverance of Gaols in every County,

Forasmuch as after this distribu­tion of power to hold plea thus made: some of these Courts would not contain themselves within their appointed limits, but sought to enlarge their authority, by usurp­ing jurisdiction that was appropri­ate to others. Articuli super Chartas ca. 3, 4, 5.

The same King did by Parliament (holden in the xxviii yeare of his raign) confirm that great Charter for ever, and in certain articles (as he did call them) set forth up­on [Page 57]the said Charter: did then by like authority of Parliament enact, that they of the Exchequer should not take knowledg of any Com­mon Plea: That the Seneschall (or Steward) and the Marshall of the Kings houshould should not have plea in hearing of trespasses, Seneschall os Sein, a house and Scale skil­full. So ste­ward, of Stow a place and Wear a keeper: con­tracts and covenants made within the verge; And the Chancellors and the Justice of the Kings Bench (now the upper Bench) should follow him wheresoever he went, to the end that he might alwaies have men about him that were able to deliver Law to such as should require it.

Hitherto (as you see) there is no express mention in Britton either of the Court of Admiralty, the Constables Court, or the Chance­ry, and therefore it remayneth that we labour to find out from whence they also fetched their beginnings and that shall we the more easily do, if we give heed to this that Britton hath already opened, for [Page 58]he leaveth the soveraign jurisdicti­on of all causes in the King, The Admi­ral [...]y. The Brittish and Sa [...]on Kings had their Chan­cellours, as Etheldred who began his raign 978 Edw. the Con­fess [...] had Re [...]nb [...]ld for In [...] Cha [...]lor. Edg [...] had A [...]u [...]ph and [...]ded and Ed­mund had Turk [...]ull. and K [...]ag Athe [...]stone had Wol­faid for his Chan [...]lor Cooke 4. Inst. [...] 97. and Ethel ba [...]d had Turketill for his Chancelor. about 718. so that whatsoever the King hath parti­cularly de ivered out to others, his Justices Commissioners and Dele­gats, that still remaineth in him­self, and was exercised either by himself in person, or by his Chan­cellour, Councellors of a State, and Justices of Law that continu­ally attended on him for that ser­vice.

And therefore first concerning the Admiralty, I think that the de­cision of marine causes was not put out of the Kings house and Com­mitted over to the charge of the Admirall untill the time of King Edward the third, whereunto I am led partly.

And then (after this subscription of him and his Queene, and of the Archbishops and Abbots) one Re­nibaldus is named Cancelarius: and in the end of all, after the date of the Chreme it is vvritten thus, Siwardus Notarius ad vicem Reni­baldii [Page 59]Regiae dignitatis Cancellarii, hanc cartam scripsi & subscripsi; The next year after this King VVil­liam the Conquerour gave (by an­other Charter) to the same Abby sundry Lands in exchange for Wind­sor, the which King Edward had be­stowed on them; and in the end of this grant he likewise saith; Ego Willielmus Dei Gratia Rex & Dux Normannorum atque Prin­ceps Cenomannorum hoc scribi pre­cipi & scriptum hoc signo deminicae crucis † confirmando stabilivi no­straeque imaginis sigillo insuper assig­nari curavi. And then (in order as before) it followeth, Ego Mauri­tatus Regis Cancellarius favendo re­legi & sigillavi.

Hereby it appeareth that the office of the Chancellor then was at the first to make and seal the In­struments that passed from the Prince, and this I call his originall duty, because it cannot credibly be shewed of any history (as I think that ever there was in Eng­land, [Page 60]any of sealing of writings or mention of the name of Chancellor, before the dayes of this Edward, who (having spent agreat part of his age in Normandy) first brought the use of the Seal from thence into this Nation, See before of the anti­quity of Chancelors and with it (I suppose) the name of Chancelor, In whose time also Leofricus the Britain is the first Chancelor I find named.

For that we learned of the Normans our manner of sealing, Ingulphus the Abbot of Croyland (which came out of Normandy hi­ther, in the Train of the Norman Conquerour) assureth us, writing thus, Normancii Cyrographorum confectionem, cum crucibus aureis & aliis signaculis sacris in Anglia formari solitam, in Cerae impressionem mutant &c. And that the name of him that kept the seal came out of France, also it may be probably conjectured both by the word (which we found nearer to the pro­nunciation of the French than of the Latin) and also by the office it [Page 61]self, which hath been exercised in France (under the same name and nature that we use it) ever since the time of Charlemaigne at the least.

And so it is manifest that the Chancelor did bear this name, and had the Charge of the Kings seal and writings both before and in the reign of the Conquerour, the which also (without all doubt) he hath ever since continued.

Howbeit when I say (writings) I do not mean, he had the authority of making originall writs here before the time of the Conquest, for those came out of Normandy also, as the very forms of the most of them (be­ing expressed in the book of the Norman customes) may leade a man to think; and that rather also, because the Saxons (our Ancestors) whose proceedings in Judgment was deplano, and without solemn­ty did not use (so far as I have hitherto observed) to call the par­ties by any writ or writing, but to send for them by certain Messengers, [Page 62]which they tearmed Theins, that is to say, Ministers, or Serjeants, yea, and what that manner of summo­ning by Writ was brought into use here, forthwith committed to the Chancellour; For Originall Writs of this time, had this form, Teste Ranulpho de Glanvilla, &c. Which was the name of the chief Justice of the Kings Court, then under whose sealing they passed abroad.

Nevertheless for as much as it is to be read in Bracton, quod omnia bre [...]ia de pace (which are prohibiti­ons indeed) irrotulari debent in Ro­tulo de Cancellaria, and for that not onely the Statute of Westminster, the second (which was made in the 15. year of King Edward the first, saith in plain words, that the for me donne in reverter satis est in usu in Cancellaria, and hath often mention of the Clerks there; But also that other Statute of articu­li super Chartas hath the express names both of the Chancellour and Chancery, it must be confessed that [Page 63]the Chancellour had the keeping of the Rolls of Record, and the making out of Writs either at the same time that the common lace was erected, or not long after, that is to say, either under the reign of King Henry, the third, or else in the beginning of King Henry the third, or else in the beginning of Ed­ward the first, which later King (as Judge Prisot reporteth of him) la­boured carefully to reduce our Law into order and writing, and, in mine opinion may therefore not unworthily be accounted our English Justinian.

And albeit that the House of the Rolles, which hath been of long time as it were, the Colledge of the Chancery men, was builded at the first by the same King Henry the third for another purpose, namely for the sustentation of such Jews as would give their names to Christ, and was thereof called, Dominus Judeorum conversorum: Mat. Paris yet that hindreth not, but that the [Page 64]same House might shortly after be converted to another use, upon experience (as it is likely) that sew converts was found amongst the Jews to inhabite it; and then thus have you the Chancellour (or now instead of him the Commissioners) furnished with the Seal of Grace, and Seal of common Justice, and with him or them the Chancery for the keeping of Records, and the Clerks thereof for the framing of Writs; Coment. [...]43. and as touching the au­thority in Judgement, I see not what Jurisdiction he had (his Court of Equity and some powers given by late Statutes 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 reversed in the Bench of the King, now called the upper Bench. Neither could he try any Issue taken before him; [...]4 E. 1. [...]5. For that also was and is to be done in the upper Bench as a thing with­out his Jurisdiction.

It remaineth then that I speak of this Court of Equity which (in my opinion) is not altogether so anti­ent as others; Os the high Court of Chan­cery. for (as you have heard before) King Edward the first and the Parliament took order, that the Chancellour should fol­low the King, even as the Justices 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 Justices should inform him of the Law, and the Chancellour of Equity; for (otherwise) I see not what use he could have of the Chancellour in this behalf: but onely for that he being commonly a Bishop, or other Spirituall person (was the more meet) after the opinion of men in those dayes) to give advice accor­ding to equity and conscience.

In which respect also he was vi­sitor for the King, and bestowed his Benefices, so that such as then sought relief by Equity, were Sui­tors [Page 66]to the King himself, who (be­ing assisted with the Chancellour and Counsell) did mitigate the severity of Law in his own person, when it pleased him to be present, and did (in absence) either refer it to the Chancellour alone, or to him and some others of the Coun­sell.

And this continued (if I be not mistaken) untill the 20th. year of the reign of King Edward the third, in which year (when he made pre­paration for his wars in France) it was enacted by Parliaments that the Chancellour and Treasurer should determine all complaints against extortion of Officers, mainte­nance, imbracery, and such like of­fences, and albeit that (indeed this authority be neither granted to himself alone, nor doth plainly e­rect any Court of Equity, yet for as much as it is the very first seve­rall power of this sort, that I find committed to him from the King (in which also it is to be thought, [Page 67]that the proceeding was extraor­dinary and absolute, even as the Kings own before was,) I suppose it to be the laying of the first stone of the foundation of the Chancel­lours Court. But after this (in the 36th. year of the same Kings reign) it was provided by Parliament; That if any were grieved contrary to the Articles of that Parliament, or others, That he should have remedy in the Chancery without other Suit, by which Law the Chan­cellour was not onely made sole Judge in this newly erected Court, but was enabled so to proceed in Judgement after his own discreti­on, or (otherwise) the words (with­out other Suits) were not Bene­ficiall.

After this also his authority was inlarged by sundry Parliaments, as by one, to award damages upon untrue suggestion made before him: by another, To send Proclamation of Rebellion against such as would not appear: And by others, To [Page 68]grant Commissions of divers kinds, and to do many other things, whereof it is not needfull to make rehearsall here.

And truly as these be first begin­nings (that I can find) in Statute Law concerning this authority of Chancery Court, so also I do not remember, that in our reports of Common Law, there is any men­tion of causes drawn before the Chancellour for help in Equity; but onely from the time of King Henry the fourth, in whose dayes (by reason of those Intestine trou­bles) Feofments to uses did either first begin (as some have thought) or else did first grow common & fami­liar as all men must agree for reme­dy, in which causes of uses (chiefly) the Chancery Court was then fled unto, as to the onely Altar of help and refuge.

But whence the Court of Equity took a beginning to be a distinct Court; I have made proof (as I think) that the power thereof was [Page 69]alwaies in exercise, and considering that formerly all the Princes of this Realm, and now the Lord Prote­ctor of this Nation is the immedi­ate Minister of Justice under God, and sworn to deliver to the people (aequam & rectam Justitiam) I can­not see, how that it may otherwise be, but that (besides his Court of meer Law) he must either reserve to himself, or refer to others a cer­tain preemment power, by the which he may both supply the want and correct the rigor of that posi­tive (or written Law which (of it self) neither is or can be made such a perfect rule, as that a man may thereby square out Justice in all cau­ses that may happen.

For written Laws must needs be made in a generality, and be groun­ded upon that which happeneth for the most part, because no wisdome of man can foresee every thing in particular, which in time experience doth beget, and therefore although the written Law be generally good and just, yet (in some speciall case) it may have need of correction, by [Page 70]reason of some considerable cir­cumstance (falling afterwards) which at the time of the Law making was not forseen, whereas (otherwise) to apply one generall Law to all particular cases, were to make all Shooes by one last, or to cut one Glove for all hands, which how un­fit it would prove, every man may readily perceive.

And here of this Equity hath this name in Greek [...], of [...] i. e. secundum, and [...] id est con­veniens; & assimulatum; because it doth not onely weigh what is ge­nerally meet for the most part, but doth also consider the person, time, place, and other circumstances, in every singular case, that cometh in question, and doth thereof frame such a judgement as is agreeable and convenient to the same, so that (in summe) the written Law is like a stiffe rule of Steel (or Iron) which will not be applyed to the fashion of the Stone (or Timber) where­unto it is laid; and Equity (as A­ristole saith well) is like to the lea­den [Page 71]rule of the Leasbian Artificers which they might at pleasure bend and bow to every Stone of what­soever fashion.

And hereby it may also appear, what use there ought to be aswell of the positive (or written Law) as also of Equity it self, for seeing that the positive or common Law, is made meet for the most part, and that Equity is added for help in few or singular causes, it followeth by reason, that commonly and sin­gularly the positive Law, should be put in ure, and that Equity should be appealed unto, but onely in rare and extraordinary matters, least on the one side, if the Judge in Equity should take Jurisdiction over all, it should come to pass (as Aristotle saith) that the best should bear rule (for so he calleth man whose judgement (if it be not restrained by the chain of Law) it is common­ly carried away with unruly affecti­on, and on the other side, if onely streight Law should be administred, the help of God (which speaketh [Page 72]in that Oracle of Equity, should be denyed unto men that need it.

And therfore even as two Hearbs being in extreamity of heat, or Cold be (by themselves) so many poi­sons, and yet (if they be skillfully contempered) will make a whole­some medicine, so also would it come to pass, if either this Arithme­ticall Government as they call it) by rigor of Law onely, or this Geo­metricall judgement, at the plea­sure of the Commissioners onely should be admitted, And yet if they be well compounded together, a most sweet and Harmonicall Ju­stice will follow them.

And as a good Chancellour then would not, so the Commissioners now will not make this Proclama­tion, Nullus recedat a Cancellaria sine remedio, and so receive Cogni­sance of every complaint, which shall be made before them upon whatsoever suggestion, and there­by both overthrow the authority of the Courts of Common Law, and also bring in upon men such a con­fusion, [Page 73]and uncertainty, as hardly any man shall know how, or when he shall hold his own assured, but they will rather have the Common Law to have her just honour, and not to be interrupted in her right course or current, and will yet withall provide that the Gate of mercy may be opened, in all cala­mity of Suit, to the end that (where need shall 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 Ministry of our Pro­tector) he doth not onely leave to us the right use of the Courts of meer Law, but hath also hitherto placed in that Praetoritall Room (or Chancery) men no less lear­ned in the common Laws of the Nation, than accomplished with the skill of this moderation and equity.

I see that occasion is offered me, to enter into the handling of some few questious concerning the order of Chancery, and chiefly of this [Page 74]one, whether it be meet that the Commissioners should appoint un­to themselves, and publish to others any certain rules or limits of equity or no? about the which men Godly and learned have differed in opini­on; For on the one part it is thought as hard a thing to prescribe equity any certain bounds, as it is to make one generall Law to be a meet mea­sure of Justice in all particular cau­ses: And on the other side it is said, That if it be not known afore­hand in what cases they will reach forth their help, and where not, then neither shall the people be as­sured how or when they may pos­sess their own in peace, nor the practiser of Law be able to inform his Clyent what may become of his action, The later of which opini­ons I hold to be the best, (accor­ding to the late Regulation of the high Court of Chancery (together with the Common Law) in Au­gust the 22th. Anno 1654. by his Highness the Lord Protector and his Counsell:) For though equi­ty [Page 75]cannot be limited; yet as it puts an end to controversies, it must have certain rules prescribed to it, otherwise it can neither be called a Court, nor can the Suitors be certain of any relief to be had therein, which Court (were it so) would soon be destroyed.

Because this and the like matters be of more difficultie than that I may (with modesty) take upon me to determine them. And for that also it is not my present purpose, to dispute what is convenient to be done in any Court, but rather to discourse the beginning, and ac­knowledge the benifit of them all, I will onely wish this one thing. That before any motion should 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 side, to de­fend that motion, that so he might not be put off to shew cause from day to day, which rather increa­seth trouble and charges, than ei­ther furthereth the suit for the hea­ring [Page 76]or benefits the parties in their cause.

Which thing whether it might be more couvenient than the pre­sent manner of motions, I will leave to the judgement of such as have more wisdom to devise, and power to execute; And will sum up the rest of our Courts and make an end.

The Court of the Dutchy (or County Palatine of Lancaster (which is by a late Act of Parliament com­mitted to the custody of a Com­missioner) grew out of the grant of King Edward the third, The Court for­merly cal­led, The Dutchy Court, the jurisdicti­on where­of is now commit­ted to a Commis­sioner or Commissio­ners. County Palatine of Lanc. erected in Parlia­ment 50 E. 3. and Iustices of Assises Gaole de­livery and of the Peace have been since the e­rection of it. Cook lib. 4. f. 204. 205. who first gave that Dutchie to his Son John of Gaunt, and endowed it with such royall rights as the County Palatine of Chester had. And for­asmuch as it was afterward extin­cted in the person of King Henry the 4th. (by reason of the union of it with the Crown of the Realm) the same King (knowing himself more rightfully) Duke of Lanca­ster, then King of England, deter­mined to save his right in the Dut­chy, [Page 77]whatsoever should befall the Kingdom. And therefore he separateth his Dutchy from the Crown, and setleth it so in the na­turall persons of himself 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 Henry the first, and of King Henry the 6th. that were descen­ded of him. But when King Ed­ward the 4th. had (by recovery of the Crown) recontinued the right of the House of York, he feared not to appropriate that Dutchie to the Crown again, And yet so as he suffered the Court, and Officers to remain as he found them.

And in this manner it came (to­gether with the Crown) to King Henry the 7th. who liking well of that policy of King Henry the fourth (by whose right he also obteined the Kingdom) made by separation of the Dutchie as he hath done, and so left it to his posterity.

It appeareth in our Books of the Tearms of King Edward the 4th. The Star Chamber. [Page 78]and the Report of cases, happening under the usurpation of Richard the third. This Court was in be­ing before 28 E. 3. Cook lib. That sometimes the King and his Counsell; And sometimes the Lord Chancellour and other great personages, did use to sit Ju­diciall in the place (then and lately called) for that it is decked with certain Stats) the Star Chamber.

But forasmuch as (be like) that Assembly was not ordinary, there­fore the next King Henry the 7th. and his Son Henry the 8th. took order by two severall Laws; That the Chancellour assisted (with o­thers there named) should have power to hear complaints against Reteinors, Embraceries, misdemea­nours of Offices and such other of­fences, which through the power and countenance of such as do com­mit them) (do lift up the head a­bove other faults) and for the which inferiour Judges are not so meet to give correction.

And because that place was before time dedicated to the like service, it hath ever since also been so used [Page 79]untill it was taken away in the late King Charls his reign. The Court of Requests

The Court of the Requests being of the same nature (as I said) with the Chancery took beginning by Commission from King Henry the 8. before which time the Masters of the Requests had no warrant of or­dinary Jurisdiction, This Court had no warrant by act of Par­liament or prescripti­on to esta­bl shit. Cook lib. 4. fol. 97. but travailed between the Prince and Petitioners, by direction from the mouth of the King.

The same King also established one Court of President and Coun­sell in the Marches of Wales 34. & 35. H. 8. The Court of the Mar­ches of Wales and that of the North parts were taken a­way in the late K Ch. his reign. Anno 17. Car. And another like Court of President and Counsell in the North parts, which Court in Wales was a Court of Law in its principall Jurisdiction, although it did with­all exercise other powers of equity. by vertue of other severall Com­missions that did accompany the same, and the Court of York was in its principall Jurisdiction Equity, and did exercise other powers by vertue of other Commissions. Court of Wards.

The Court of Wards began about [Page 80]the 32th. year of the reign of King Henry the 8, who also (in the next year after) added thereto the of­fice of the Masters of the Liveries, and withall conjoyned the names, ordaining that it should be called, The Court of his Wards and Li­veries.

The same King likewise had ere­cted one Court of the generall Sur­veiours of his Lands; and one other of the Augmentations and Reve­nues of his Crown; and a third Court of the first fruits and Tithes of Benefices. But all these were af­terwards dissolved and (by Queen Mary) united to the Court of Ex­chequer. Thus having run along these Courts deriving them from the Crown, I might proceed yet further to shew the originall and beginnings of some Courts erected by the late Parliament, and the na­ture and beginning of the High Court of Justice that was erected in Westminster Hall Anno 1648. but they being so fresh in the memory of this age, I shall not need to make mention thereof.