Edward: Coram Episcopis & Principibus Regni, in præsentia Regis ventilata & finita. In the tenth year of the Conqueror, Episcopi, Comites, & Barones Regni potestate adversis provinciis ad universalem Synodum pro causis audiendis & tractandis convocati, saith the book of Westminster. And this continued all along, in the succeeding kings reign, until towards the end of Henry the Third.

As this great court or council, consisting of the king and barons, ruled the great affairs of state, and controlled all inferior courts; so there were certain officers, whose transcendent power seemed to be set to bound in the execution of princes wills, as the steward, constable, and marshal, fixed upon families in fee for many ages. They, as tribunes of the people, or Ephori among the Athenians, grown, by manly courage, fearful to monarchy, fell at the feet and mercy of the King, when the daring Earl of Leicester was slain at Evesham.

This chance, and the dear experience Henry the Third himself had made at the parliament at Oxford, in the fortieth year of his reign, and the memory of the many streights his father was driven unto, especially at Runnymead near Stanes, brought this king wisely to begin what his successor fortunately finished, in lessening the strength and power of his great lords; and this was wrought by searching into the regality they had usurped over their peculiar sovereigns, whereby they were, as the book of St. Albans term them, Quot Domini tot Tyranni: And by the weakening that hand of power which they carried in the parliaments, by commanding the service of many knights, citizens, and burgesses to that great council.

Now began the frequent sending of writs to the commons; their assent was not only used in money, charge, and making laws, for, before, all ordinances passed by the King and peers, but their consent in judgments of all natures, whether civil or criminal: In proof whereof I will produce some few succeeding precedents out of record.

When Adamor, that proud prelate of Winchester, the King's half brother, had grieved the state by his daring power, he was exiled by joint sentence of the King, lords, and commons; and this appeareth expresly by the letter sent to Pope Alexander the Fourth, expostulating a revocation of him from banishment, because he was a church-man, and so not subject to any censure; in this the answer is, Si Dominus Rex & Regni majores hoc vellent, meaning his revocation, Communitas tamen ipsius ingressum in Angliam jam nullatenus sustineret. The peers subsign this answer with their names, and Petrus de Mountford, vice totius Communitatis, as speaker or proctor of the commons.

For by that style Sir John Tiptoft, prolocutor, affirmeth under his arms the deed of intail of the crown by King Henry the Fourth, in the eighth year of his reign, for all the commons.

The banishment of the two Spencers, in the fifteenth of Edward the Second, Prelati Comites & Barones & les autres Peeres de la terre & Communes de Roialme give consent and sentence to the revocation and reversement of the former sentence; the lords and commons. accord, and so it is expressed in the roll.

In the first of Edward the Third, when Elisabeth, the widow of Sir John de Burgo, complained in parliament, that Hugh Spencer the younger, Robert Baldock, and William Cliff, his instruments, had, by durance, forced her to make a writing to the King, whereby she was despoiled of all her inheritance; sentence is given for her in these words, Par ceo que avis est al Evesques, Counts, & Barons & autres grandes & a tout Communalte de la terre, que le dit escript est fait contre ley, & tout manere de raison si fuist le dit escript per agard del Parliam. dampue elloques al livre a la dit Elis.

In An. 4 Edw. III, it appeareth by a letter to the Pope, that, to the sentence given against the Earl of Kent, the commons were parties, as well as the lords and peers; for the King directed their proceedings in these words, Comitibus, Magnatibus, Baronibus, & aliis de Communitate dicti Regni ad Parliamentum illud congregatis injunximus, ut super his discernerent & judicarent quod rationi & justitiæ conveniret, habere præ oculis solum Deum, qui eum concordi unanimi sententia tanquam reum criminis læsæ majestatis morti adjudicarent ejus sententia, &c.

When, in the fiftieth year of Edward the Third, the lords had pronounced the sentence against Richard Lions, otherwise than the commons agreed, they appealed to the King, and had redress, and the sentence entered to their desires.

When, in the first year of Richard the second, William Weston and John Jennings were arraigned in parliament, for surrendering certain forts of the King's, the commons were parties to the sentence against them given, as appeareth by a memorandum, annexed to that record. In the first of Henry the Fourth, although the commons refer, by protestation, the pronouncing of the sentence of deposition against King Richard the Second unto the lords, yet are they equally interested in it, as it appeareth by the records; for there are made proctors or commissioners for the whole parliament, one bishop, one abbot, one earl, one baron, and two knights, Gray and Erpingham, for the commons; and to infer that, because the lords pronounced the sentence, the point of judgment should be only theirs, were as absurd as to conclude, that no authority was vested in any other commissioner of Oyer and Terminer, than in the person of that man solely, that speaketh the sentence.

In 2 Hen. V, the petition of the commons importeth no less than a right they had to act and assent to all things in parliament, and so it is answered by the King; and, had not the journal roll of the higher house been left to the sole entry of fhe clerk of the upper house, either out of a neglect to observe due form, or out of purpose to obscure the commons right, and to flatter the power of those he immediately served, there would have been frequent examples of all times to clear this doubt, and to preserve a just interest to the commonwealth; and how conveniently it suits with monarchy to maintain this form, lest others of that well-framed body, knit under one head, should swell too great and monstrous, it may be easily thought; for monarchy again may sooner groan under the weight of an aristocracy, as it once did, than under a democracy, which it never yet either felt or feared.

ANCIENT CUSTOMS

OF

ENGLAND*.

BEING desirous for my own particular satisfaction to search and

enquire after reverenced antiquity, it was my hap to light on an old manuscript, which, altho' in sound is Saxon-like, yet in something it savours of the Danish matters, and of the ancient British laws under the rule and government of the Danes; which writing, writ in the Saxon tongue, I have translated into English word for word, according to the true sense and meaning thereof.

"IT was sometimes in the English laws, that the people and the laws were in reputation; and then were the wisest of the people worship-worthy, each in his degree, Lorle and Chorle, Theyn and Undertheyn. And if a Chorle so thrived, that he had full five hides of his own land, a church and a kitchen, a bell-house and a gate, a seat and several offices in the King's hall; then was he thenceforth the Theyn's right-worthy. And if a Thyen so thrived, that he served the King, and on his message, or journey, rode in his houshold; if then he had a Theyn that him followed, who to the King's expedition five hide had, and in the King's palace his lord served, and therewith his errand had gone to the King, he might, afterward, with his fore-oath his lord's part play at any need. And if a Theyn so thrived, that he became an earl, then was he right-forth an earl right-worthy. And if a merchant so thrived, that he passed thrice over the wide sea of his own craft, he was thenceforth the Theyn's right-worthy. And if a scholar so thrived through learning, that he had degree, and served Christ, he was thenceforth of dignity and peace so much worthy as thereto belonged, unless he forfeited so, that the use of his dignity might be taken from him."

These ruins of antiquity make shew of a perpetuity of nobility, even from the beginnning of this island; but times are changed, and we in them also. For King Edward the Confessor, last of the Saxon blood, coming out of Normandy, bringing in then the title of Baron, the thane from that time began to grow out of use; so at this day men remember not so much as the names of them. And, in process of time, the name of baronage began to be both in dignity and power so magnificent above the rest; as that, in the name of the baronage

Printed in the
year 1641.

of England, all the nobility of the land seemed to be comprehended. As for dukes, they were (as it were) fetched from long exile, and again renewed by King Edward the Third. And marquisses and viscounts were altogether brought in by King Richard the Second, and King Henry the Sixth.

But our kings descended of the Norman blood, together with the crown of the kingdom, granted an hereditary and successory perpetuity unto honourable titles; such, I mean, as are the titles of carldom, and baronies, without any difference of sex at all, which thing I thought good to make manifest, by the examples of the more ancient times.

In the reckoning up whereof, that I may the better acquit and discharge myself, I shall, in the first place, desire the reader to observe three things.

First, Concerning the disposition and inclination of our King in the creating of the nobility.

Secondly, Of the custom of transferring of honours and dignities by families. And,

Thirdly, Of the force of time, and the change and alteration of things.

For why our kings (who in their kingdoms bred alone the absolute rule and sway) are with us the efficient causes of all political nobility. The titles of named nobility, by our custom, have this natural and common, together with the crown itself, that, the heirs male failing, they devolve unto the women, except in the first charters it be in express words otherwise provided; and yet, so that regard is always to be had of the time, which is every where wont to bear sway in the formality of things.

In this manner (Harold being overcome) William the First, king and conqueror, having obtained the sovereignty, according to his pleasure, bestowed dignities and honours upon his companions and others: some of them so connexed and conjoined unto the fees themselves, that, yet to this day, the possessors thereof may seem to be ennobled even with the possession of the places only as our bishops at this day, by reason of the baronics joined unto their bishopricks, enjoy the title and preeminence of barons in the highest assemblies of the kingdom, in parlia ment. He gave and granted to others dignities and honours, together with the lands and fees themselves. He gave unto Hugh Lupus, his kinsman (a Norman) the Earldom of Chester: Ad conquirendum & tenendum sibi & Hæredibus, adeo libere per gladium, sicut ipse Rex tenuit Angliam per CoroTo Hanus Rufus (then carl of Bretagne in France) and his heirs, the earldom of Richmond: Ita libere & honorifice, ut eundem Edwinus Comes antea tenuerat. And the earldom of Arundel (which Harold possessed) he granted, with a fee, unto Roger of Montgomery. The first two of which honours (the heirs male failing) by women passed unto other families; but the latter earldom, Robert, the son of Roger, being attainted of treason, returned unto King Henry the first, who gave the same in dowry unto Queen Adeliza, his wife. But the succeeding kings, more sparingly, bestowed such dignities, to be holden of them in fee, granting, for the better and more honourable

nam.

maintenance of their stock and honour, the third part of the pleas of the county (as they term it) which they, in their charters, call Tertium denarium, or the third penny; so that he, that received the third penny of any province, was called earl of the same; and so by custom the women, the heirs male failing.

And if any earl or baron, dying without sons, had many women his heirs, howsoever order was taken, either by way of covenant, or partition, concerning the lands and possessions, according to the common laws of the kingdom, yet the dignity and honour (a thing of itself indivisible) was still left to be disposed of, according to the King's pleasure, who, in bestowing thereof, usually respected the prerogative of birth; by which right, King Henry the Third, after the death of John the Scot, dead without issue (other lands and revenues being, by agreement, given to his three sisters) united the earldom of Chester, with the honour thereof, unto the crown. This is manifest in the earldom of Arundel, which (after Robert Bellisme, son to the aforesaid Roger Montgomery, driven out by Henry the First) King Henry the Second bestowed upon William of Albany, Queen Adeliza his mother's husband, and, by a new charter, confirmed it in fee, together with the inheritance, to him and his heirs, with the third pleas of Sussex, whereof he created him earl. But Hugh the Great, nephew of this William the First, being dead without issue, all the earldom was divided among his four sisters, whose dignity and honour, for all that, together with the castle of Arundel, was, by Edward the First, at length, given to Richard Fitz-Alan, (the nephew) son to John Fitz-Alan, and Isabella, the second of the aforesaid sisters.

I will now pass from Henry the Third, to Edward the First, his son, there being for a time great dissension betwixt him and certain of his nobility, viz. Gilbert of Clare, Earl of Hertford and of Gloucester; Humphrey of Bohun, Earl of Hereford and Sussex, and constable of England; and Roger Bigod, Earl of Norfolk, marshal of the kingdom; and that all those noblemen, at length, had lost their earldoms and offices; they, being reconciled to the King, afterward they again, by new charters, received the same in this manner: The first of them to himself and Joan his wife, the same King's daughter, his second wife, for term of both their lives; and to the children to be by both of them begotten (his two daughters by his first wife being excluded.) This Joan (called Joan of Acon) bare unto her husband Gilbert a son, called also Gilbert; but she, the second time, secretly married unto one Radulph, of Mount Hermeri, without the King her father's knowledge, and, in her own right, made the same Radulph earl, so long as she lived; but, she being dead, Gilbert, her son by the aforesaid Gilbert, succeeded again into the earldom, Radulph, his father-in-law, being yet alive. In the same manner he restored to the aforesaid Humphrey of Bohun his earldom and constableship, unto whom he also gave in marriage Elisabeth, another of his daughters, widow to John Earl of Holland; and to the third he restored the earldom of Norfolk, and the office of Marshal, with the yearly increase of a thousand marks, upon condition, if the heirs male of his body to be begotten failed,