SINCE the late Learned Doctor Howell and Doctor Brady, the former in his Second and Third Parts of his General History of the World, and the latter in his General Preface, and First Book of his Compleat History of England, have given us a large Account of the Political Government and Laws in this Part of our Island we now call England, during the time of the Roman Emperors, as also of our English-Saxon Kings, as far as the Norman Conquest; this Undertaking of Mine would look very imperfect, if I should not in some measure follow their Method, and prefix before it something of the like nature.

I have therefore made bold to borrow from Mr. Selden, and those other Authors who have written on this Subject, whatsoever I thought was necessary to carry on the same Design; and also added those Things that I found they have either omitted or mistaken, and which required more largely to be treated of, in order to render this Work as use­ful as possible I could for a matter of so great Importance.

TO begin then with the Government of the Britains before the Ar­rival of Julius Caesar into this Island: Of which we have scarce any Account but what can be gathered from Geoffrey of Monmouth, which is so uncertain and fabulous, that there is little reliance upon what he says, save that in the general it was governed by Kings, and often canton'd into several Kingdoms: for that it was ever under one Monarch, as he frequently affirms, I have very good reason to doubt; it being not only contrary to the Genius and Custom of the British Nation, (where all the Male Issue inherited alike) to suffer the Eldest Son to go away with the whole Inheritance, but likewise it is di­rectly opposite to Caesar's Account of this Island when he came first hither, which he says he found divided into several distinct Principalities and States.

BUT if any Part of Geoffrey's Relation be true, that is most likely to be so which he gives us of the Laws of Molmutius, viz.

THAT the Temples of the Gods had this Privilege, That whatever guilty Persons should fly to them, they should be secure from their Pro­secutors; because we find that Custom very antient, not only amongst the Greeks and Romans, but indeed all other Nations, the Jews not ex­cepted.

[Page xxx]NEXT, That the publick Ways leading to the said Temples, and the Cities wherein they were, should be free and safe. And,

LASTLY, That such a Proportion of Land should maintain so many Ploughs for the Encouragement of Husbandry; which was very natu­ral in a Countrey, where not only the Soil, but the Laziness of the Inhabitants, rendr [...]d it more apt for Grazing than Tillage

BUT I cannot forbear observing how little stress is to be laid on Geoffrey's Account of the Laws of those British Princes, since he has the Confidence to tell us of another Sett of Laws supposed to be made by Queen Martia, which, he says, being afterwards translated by King Alfred out of the British Lang [...]age, were by him inserted into his Bo­dy of Saxon Laws, under the Title of Me [...]rchen-Lage. The Falshood of which Derivation Mr. Camden has very well discovered, by shew­ing, That this Word had not its Original from Queen Martia, but from the Saxon Word Mearc, signifying a Limit or Boundary; from whence the Mercian Kingdom had its Name, and was so called from its Situation, as being circumscribed by the other Kingdoms of the Heptarchy.

BUT as for the British Government that succeeded upon the Romans deserting of this Island, we can say no more of it, than that it was Regal; but that it was all subject to one Monarch, I no where find. For tho it appears from Gildas and Nennius, that Vortigerne was made King not long after the Romans leaving it, yet does it not follow from thence, that there were no more Kings than he at the same time; since it seems very unlikely, that all Britain (properly so called) which in the time of the Romans was divided into so many distinct Pro­vinces, each of which had their particular Praefects or Deputies, should so unanimously agree in the Choice of this Vortigerne, whom Geoffrey preposterously relates to have been then Count of the Gewises, when indeed there were no such People of that Name in Being, till the erecting of the West-Saxon Kingdom; those People being then (and not before) so called from one Gewis, an Ancestor of Hengist. And Gildas, who lived within fourscore Years after the Reign of this Vortigerne, tells us of no less than four distinct Kings reigning together in this Part of the Island, and mentions not a Word of its ever being other­wise.

BUT that the Titles of those Kings who reigned here during the first Wars between the Britains and the Saxons, were oftner by Election than Succession, may appear not only from Geoffrey himself, but also from Gil­das and Nennius, who are Authors of better Credit; and they relate Vortimer the eldest Son of Vortigerne, to have been elected upon his Father's Deposition, King of the Britains; and after his Death, and the second Desertion of Vortigerne, that Aurelius Ambrosius was elected first General, and some time afterwards King of the Britains.

NOR can we believe that these Kings were Absolute or Despotick Monarchs, since we find that Government unsutable to the Temper of the British Nation, both then, and in succeeding times; having not only frequently cast off the Government of the Roman Emperors, but also of their own Kings, for their cruel Tyranny and Oppression.

AND that this way of the Election of one supream King over the rest, was after often used by the Britains, you will find in the History it self; not but that it must be confessed, that the several petty Kingdoms o [...] [Page xxxi] Principalities which the Britains still possessed, and that go under the Name of North and South-Wales, did commonly descend, and were divisable among the several Sons of the deceased Prince, tho it was with great Inequality and Confusion; which often produced frequent Civil Wars between the Contending Competitors, and became the Ruin of them all at last.

BUT to pass from these British Princes, and the manner of their Go­vernment, as well before the coming in, as after the Desertion of the Romans, and which (tho not in its due order of Time) I have here put together, that the Reader might have a full View of it all at once. I proceed now to the Civil and Military A [...]ministration of the Romans whilst they continued Masters of this Part of Britain.

JVLIVS Caesar, when he had rather view'd than conquer'd this Island, left it, upon the Delivery of some Hostages, and the Promise of send­ing over more into Gaul, together with a certain Tribute to the Senate and People of Rome, neither of which the Britains ever perform'd; but during the Civil Wars, which not longer after ensued, they re­covered their antient Liberty, which for divers Years they enjoyed, till the Emperor Claudius, at the Instigation of one Bericus a Fugitive, and upon a Pretence of their denying the Romans to trade here, sent over first Aulus Plautius as his Lieutenant, and then following pre­sently afterwards himself in Person, made the Britains (I mean the greatest part of them) partly by Force, and partly by Fear, sub­mit themselves to his Empire; tho in a great measure under the Re­giment of their own Kings, who only paid Tribute, and received Roman Garisons, and suffered them to erect Colonies where they pleas'd: during which time the Government of the Romans was rather Mili­tary than Civil, the People living after their own Laws.

NOR were the Britains wholly subdued by them, till upon their Insurrection under Queen Boadicia in the Time of Nero, when Paulus Suetonius being Legate or Lieutenant here, reduced them (tho with great difficulty) under the Roman Yoke.

BUT the Civil Wars that afterwards happened upon the Death of Nero, hindred their entire Conquest, until such time as the Em­peror Vespasian sent over that famous Commander Agricola to be his General here; who in a few Years, having laid aside their petty Kings, brought it into the Form of a Province under the Roman Go­vernours, sometimes stiled Presidents, sometimes Consulares, and some­times Legati or Procuratores, as the Emperor's Commission, or the various Appellations of the Roman Historians are pleased to en­title them.

AND then it was, I suppose, this Part of the Island was first divided into several Praefectships or Governments, tho how many they were, cannot be ascertained; only we find from the Breviary of Sextus Ru­fus, that in the Reign of Constantine it was parcell'd into these four for its better Administration, viz. Britannia prima, De [...]is Nomi­ni [...]us, vid. Pan­cirol. ad N [...]t. imperii Occi­dent. & Cam­den. Brit. which is con­jectured to have been that Part of the Countrey lying from the Gal­lic Sea to the River Thames and the Mouth of the Severn; Britan­nia secunda, which reached from the Severn to the Irish Sea; Flavia Caesariensis, which was enclosed by the Rivers Thames, Severn and Humber; and Maxima Caesariensis, lying betwixt Humber and Hadri­an's Wall; to which was afterwards added by Theodosius the Elder, [Page xxxii] the Province of Valentia, so called from the Emperor Valentinian; and which, having been taken out of Maxima Caesariensis, lay betwixt the Wall of Hadrian, and the Friths of Glotta and Bodotria, which now are those of Edinburgh and Dunbritton.

EACH of which Provinces were under their particular Magistrates, some whereof had the Title of Consulares, and others of Praesides: all which, according to the Notitia Romani Imperii, were by Con­stantine's new Constitutions, made subject to the Vicarius of Britain, as he was to the Praefectus Praetorii of Gaul, who was one of the Four Praefecti of Constantine's Erection.

THIS Vicar of Britain had also several inferiour Officers under him for the Civil Administration; as first, he had his Princeps or Lieu­tenant out of the Agentes in rebus, that is, from the Chief of the A­gents, Solicitors, or Attorney-Generals: he had also from the Duce­narii, or Society of the Emperors Pursuivants, a Cornicularius, i. e. one that wrote and published the Sentences and Decrees of the Presidents and other Magistrates, and had his Name from Cornu a Horn, by the sounding whereof he is supposed to command silence in the Court; then two Numerarii, i. e. Clerks Accountants, who did set down all the Sums of the publick Revenues; then a Commenta­riensis, i. e. the Jailor or Keeper of the Prison, and was so called from the Commentaria, or Kalendars which he kept of the Prisoners, and delivered to the Judges: then certain Officers called ab Actis, who were Publick Notaries, that wrote Testaments, Contracts and other Instruments, which were signed before by the Judg or Pre­sident, and attested by him, that so after the Death of the Party they might remain Authentick: then other Clerks or Secretaries de Curâ, or de Curâ Epistolarum, who wrote and sent the Letters and Dis­patches of the Governours of Provinces to the Emperor, or to each other.

BESIDES whom, the Vicarius himself, (and, I suppose also, each of the Presidents) had his Adjutorem, i. e. his Coadjutor, in case of Sickness, or necessary Absence; as likewise Subadjuvas, Under-Assistants, or Assistants to the Adjutor: and, in short, certain other Officers called Singulares, from the particular Civil Imployments they had, who seem'd to have been Prosecutors, Informers, or Serjeants; not to mention others of more inferiour Rank, as Apparitors, Sum­moners, or Messengers. This was the Civil Court of the Vicarius, or Deputy of Britain, under the Praefectus Praetorii of Gaul, who had the Power to reverse his Judgments and Decrees.

THE Ensigns of his Government were a Draught of those Five Parts of Britain before-mentioned,Vid. Pancirol. in Notit. Im­perii. expressed in the Forms of seve­ral Buildings, with the Superscription of their Names placed on the Triangular Form of the Island, as if they had comp [...]ehended the whole Island; the Book of their Instructions covered with Green, and the Commission in a gilt Cover, with several Letters inscribed on the Book, the Signification of which is unnecessary to be here in­serted; but you will find this, as also a Draught of these Insignia themselves, in the above-cited Pancirollus.

BESIDES these general Presidents, there were likewise Courts in all the great Cities, Municipia, or Colonies of each Province, which had their several Officers and Magistrates according to the Model of Rome [Page xxxiii] it self, who heard Causes, and administred Justice to the particular Districts belonging to them, much after the same manner as the Par­liaments in France do at this day.

HAVING thus concluded their Civil Administration, we now come to the Military, which was executed by Three Chief Officers un­der the Magister Militum of the West, and they were these, viz. the Comes Britanniarum, Comes Littoris Saxonici, and the Dux Britan­niarum; whose several Charges, and the Tracts subjected to each of their Commands, may be best discerned by the Names of those Towns where their Under-Officers and Forces are said to have had their Head-quarters. The first of these, viz. the Count of Britain, is thought to have had his Command over the Inward or Middle Part of the Island, because the two others are known to have had theirs over the Northern or Maritime Parts thereof; but the Notitia assigns not any Forces to the former, nor mentions any Places under his Command, because, as Pancirollus writes, the whole Island was then almost over­run by Barbarians.

BUT as for the Comes Littoris Saxonici, so called in the Declension of the Roman Empire, from the charge or Care he had to suppress the Saxon Pirates, who often landing on the Eastern Parts of Britain, (ly­ing over against Germany) committed great Ravages there; he had eight Praepositi, and one Tribune under him, that were Leaders of di­vers Cohorts, consisting of Gauls, Germans, and other Foreign Nati­ons, who quartered in several Towns all along the Coasts, from Sussex, as far as the remotest part of Norfolk: for the Names of whom, with the Places where they lay, I shall refer you to the Notitia Imperii Occidentalis, or (if you had rather have them in English) to Mr. Sel­den's Titles of Honour, and Dr. Howell's second Part, and third Chap­ter, of his General History.

THE like I may also say of the Forces under the Dux Britannia­rum, or General of Britain, whose Army, had it then been really in being, was sufficient to have suppressed both the Picts and Scots; for they consisted of no less than fourteen Praefects or Praepositi of Horse and Foot, whose Names, and Places where they quartered (extending from Lincolnshire through all the Northern Counties, as far as the Pictish Borders, and so round about by Lancashire into North-Wales) you may find in the Authors abovementioned.

BUT as for the several Ensigns of these three chief Military Officers, they being much what the same with those of the Vicarius Britanniae, viz. The Figures of certain Towns, with their Names set over them, together with their Commissions, contained in Books of different co­loured Covers, with the Emperor's Images set by them on Pillars, I will leave it to those who take more Pleasure than I do in such Curiosities.

ALL these Comites and Duces were equal in Power, and only sub­ordinate to the Vicarius Britanniae; the Forces under their Command were not only dispersed through the Municipia or Free Colonies, which the Romans planted here, and were governed by their own Civil Ma­gistrates in Imitation of Rome their Mother-City, but were also gari­son'd in divers Towns, Castles and Forts, all along the Roman Li­mits, thereby to discover the Motions of the Neighbouring Nations; several of which being intended only at first for their Military Camps, [Page xxxiv] by degrees grew up into Cities, and are known at this day by the Name of Chesters; such as are West-Chester on the River Dee, Portchester in Hampshire (now destroyed,) Chester in the Street in Northumberland, with several others of less note near the Picts Wall; as also in the Inland Parts of England, ending in the word Cester, as Leicester, Cirencester, &c. all which owe their Original to the Latin Name Castra.

HAVING now dispatched the British and Roman Polity, I come to the main part of Design, which is, to give a brief Account of the Civil Government that the English Saxons established in this part of our Island, which they called England, who consisting of several Tribes or Nations inhabiting different Countries, yet all speaking the same Language, came over hither at several Times under their particular Leaders; and as soon as they had expelled the Britains, they did with­in the space of about a hundred Years,The Heprar­chy. erect seven distinct Kingdoms, though not of equal Extent; the Names of which, (notwithstanding they are set down in the History it self, yet having not given you the particular Catalogue of the several Counties they contained, because their Dominions were not then divided into those Districts as they were afterwards,) I have reserved to this place.

1st. Kingdom.THE first Kingdom, being that of Kent, consisted only of that County and Surrey.

2d. Kingdom.THE second, viz. that of the South-Saxons, contained Sussex and Surrey, or at least great part of it.

3d. Kingdom.THE third was the Kingdom of the West-Saxons, and contained Devonshire, Dorsetshire, Somersetshire, Wiltshire, Hampshire and Berk­shire. But as for that Countrey called Cornwall, I shall not reckon it here, because it was for a long Time after governed by its own Prin­ces, and not brought under the West-Saxon Dominion till long after

4th. Kingdom.THE fourth was that of the East-Saxons, which contained Essex, Middlesex, and part of Hertfordshire.

5th. Kingdom.THE fifth was that of the Northumbers, which contained Lanca­shire, Yorkshire, the Bishoprick of Duresme, Cumberland, Westmorland, Northumberland, and part of Scotland, as far as Edinburgh Frith.

THIS Kingdom after the Death of Ida, was divided into two parts; the first whereof, containing all the Countries lying on this side the River Tyne, was called the Kingdom of Deira; and that on the other side of it was called Bernicia, and so continued for several Descents, till King Oswy, about the Year 643. upon the Murder of King Oswin his Cousin, again reduced them into one; and they continued thus united till such time as the Southern Provinces were overrun by the Danes, as the more Northern were by the Scots, and have ever since remained part of that Kingdom: and hence it is the Low-Lands of Scot­land, (that is, all the Countrey from the River Tyne, to the Friths of Edinburgh and Dunbritton,) antiently spoke the English Saxon Tongue, which in succeeding Times was changed into that English Dialect they call the Modern Scotch; and consists of the old Saxon, with no little mixture of the Danish Language: this, I suppose, proceeded from the great Conquests, and settling so many of that Nation in those Nor­thern Parts.

THIS is in great measure confirmed by John of Wallingford, (pub­lish'd by the Learned Dr. Gale) where he relates,545. that Keneth King of Scots received Lothian from King Edgar, under the Condition [Page xxxv] of a Homage from himself and his Successors Kings of Scotland, to the King of England, as also that the People of that Countrey should en­joy their Laws and Customs, as also the use of the English Tongue.

BUT as for the true and genuine Scotish, which they now call the Speech of the Highlanders, because by them only spoken at this day, it is no other than the antient Irish, which the Scots brought over with them from thence, when they first came over to inhabit there, as you will find in the Beginning of Bede's History.

THE sixth Kingdom was that of the East-Angles, 6th. Kingdom. which contained Norfolk, Suffolk, Cambridgshire, with the Isle of Ely.

THE seventh was that of the Mercians, containing Gloucestershire, 7th. Kingdom. Herefordshire, Worcestershire, Warwickshire, Leicestershire, Rutlandshire, Northamptonshire, Lincolnshire, Huntingtonshire, Bedfordshire, Bucking­hamshire, Oxfordshire, Staffordshire, Shropshire, Nottinghamshire, Che­shire, and part of Hertfordshire.

BUT as for the Names of the Kings who reigned in each of these Kingdoms, till they were all brought under that of the West-Saxons, I shall refer you to the Tables at the end of the third, fourth and fifth Books of this Volume, wherein you have at one view all the Kings that succeeded in each of those Periods, as also those of that part of Britain we now call Wales; and for the more exact Chronology of the first British Princes, I must own my self obliged to the exact account of the Right Reverend the present Lord Bishop of Bangor, who I hope one day will let the World see some of his Learned Labours on that Subject.

THIS is a short Scheme of the several Kingdoms, into which that Part of Britain we now call England, was divided in the Saxon Times.

I should next proceed to the particular Laws and Forms of Govern­ment in each respective Kingdom; but since we have no Remains of those left us for want of Letters, before the Preaching of Christianity here, we can only say in the general, that without doubt each of these Kingdoms had its own particular Laws and Customs; and tho they might perhaps differ one from the other in some Points, yet they all agreed in the main, as to the most Material and Fundamental Con­stitutions of their Government, and long received Laws and Customs before ever they arrived in England, as proceeding from the same Com­mon Ancestors.

AND tho the English-Saxons were not immediately derived from the Germans but Goths, as you will find in the third Book of this Vo­lume; yet since even the Germans themselves were derived from the same Gothick Original, with all the rest of those Northern People, as the Sweeds, Danes and Norwegians, as appears by the Agreement of their Language, Customs and Laws; I shall therefore suppose that in the main likewise they agreed with the Antient Germans, as they are de­scribed by De moribus Germanorum. Tacitus, in their Laws, Manners, and Religion; and there­fore I shall from him give you some of the most considerable of them, as they are collected by Mr. Selden in his Learned Treatise, called; Jani Anglorum Facies altera.

THE first of which is, In conciliis Rex vel Princeps, prout Aetas 1 cui (que) prout Nobilitas, prout Decus Bellorum, prout Facundia est, audi­untur, Auctoritate suadendi magis quàm jubendi potestate. Si displicuit [Page xxxvi] Sententia, fremitu aspernantur; sin placuit, frameas concutiunt. Hono­ratissimum assensûs Genus est Armis laudare. Which for the Benefit of the Common Readers, I will take upon me to translate into Eng­lish, viz.

‘IN their Councils the King, or some principal Person, according to every one's respective Age, Nobility, Reputation in Arms, or Elo­quence, are heard, rather by the Authority of Perswading, than the Power of Commanding: if their Opinions displeased them, they shewed their dislike by their Clamour; but if they approved of what was spoken, they struck their Launces one against another. This was thought the most Honourable way of giving their Assent to ap­prove by Arms.’

2 THE second is, Eliguntur in iisdem Conciliis Principes, qui Jura per pagos vicos (que) reddunt. Centeni singulis ex plebe Comites Consilium simul & Auctoritas adsunt, viz.

‘IN those Councils such chief Men are Elected, as judge Causes in Towns and Villages. A hundred Assessors chosen out of the com­mon People are added to each of them, as well for Counsel as Au­thority.’ From whence Mr. Selden here supposes our Hundreds had their Original; which antiently consisted of the Masters of one hun­dred Families.

3 THE third goes on thus, Nihil publicae vel privatae Rei nisi Armati agunt, sed Arma sumere non antè cuiquam moris, quam Civitas suffecturum probaverit. Tum in ipso Concilio, vel Principum aliquis, vel pater, vel propinquus, scuto frameâ (que) Juvenem ornant: haec apud illos Toga, hic primus juventae honos: ante hoc Domus pars videntur, mox Reipublicae, viz.

‘THEY transact nothing either of Publick or Private Concern without their Arms: but it was not a Custom for any to assume those Arms, before the Common-Wealth had approved of his Abi­lity. Then in this very Council, either one of the principal Men, or his Father, or his near Kinsman, adorned the Youth with the Shield and Lance. This served them instead of a Gown, and was the first Honour of their Youth: before they only seemed as part of the Family, but now they became a Member of the Common-Wealth.’ And here Mr. Selden discovers the first Footsteps of Knighthood.

4 THE fourth is, Insignis Nobilitas, aut magna patrûm merita, Prin­cipis dignationem, etiàm Adolescentulis assignant; viz.

‘EMINENT Nobility, or the signal Merits of their Ancestors, do advance even these young Men to the Degree and Honour of being a chief Man.’

FROM hence we may observe, that all Nobility among the anti­ent Germans was at first Military, as being derived from the Noble and Valiant Acts of their Ancestors in War; and thence proceed all the present Ensigns of it; videlicet, the Shield, on which our Coats of Arms are now depicted; as also the Helmet and Crest that stand for an Ornament over them: for until some Brave and Worthy Act was performed, it was not lawful among the Germans for a young Warriour to paint any Device upon his Shield, which was only Personal to himself, and extended not to his Posterity.

5 THE fifth is, That Dotem non Vxor Marito, sed Vxori Maritus offert, viz.

[Page xxxvii] ‘THE Husband settles a Dower upon the Wife, and not, vice versâ, the Wife upon the Husband.’ Which shews the Antiquity of Dowe [...] among the Germans and English-Saxons; and as Mr. Selden upon this Law observes, it was called antiently MORGANGHEB among them.

THE sixth shews, that Accisis Crinibus, nudatam adulteram coram 6 propinquis expellit domo Maritus, ac per omnem vicum verbere agit, viz.

‘FOR Adultery, the Husband turned the Wife out of his House in the presence of her Relations, having first cut off her Hair, and be­ing then strip'd, whip'd her through the Town.’

BUT the Severity of this Punishment, if ever it was in use here, was quite abolished by the English-Saxons, as you will find from the Laws about it.

THE seventh is, that Haeredes, successores (que) sui cui (que) Liberi: & nullum 7 Testamentum, viz.

‘EVERY Man's Heirs and Successors are his Children; and no Testament is allowed.’

BUT in this the English-Saxon Law differed much from those of the Germans; for it was lawful in England for Men of Quality to dis­pose of their Land by Will (if they pleased) provided it were Bocland, (that is Free-Tenure grantable by Deed) as you may find by some Laws in the ensuing Volume; otherwise in Lands held in Socage, every Man's Sons inherited all alike: But this law was changed after the Conquest, and no Will could be made of Lands held by Military Service, but they descended entirely to the eldest Son: which Law continued so low as the Reign of King Henry the 8th, 32 Hen. VIII. Cap. 1. when the Statute was first made, which gives the Tenant by Knights Service, Power to bequeath his Estate by Will, provided there were enough left to perform the Service.

THE eighth says, that Suscipere Inimicitias, seu patris, seu propinqui,8 quàm amicitias, necesse est, viz.

IT is absolutely necessary to continue the Enmities of a Father, or near Kinsman, as well as Friendships.

FROM whence, as Mr. Selden well observes, arose those Family-Quarrels, called in the North of England, DEADLY FEUDS, (which you will also find mentioned in the ensuing Collection of Saxon Laws) and which are continued in Scotland even to this Day.

BUT to proceed with Tacitus, he says, Nec implacabiles durant: Lui­tur enim etiam homicidium certo Armentorum as Pecorum numero, recipít (que) satisfactionem universa Domus, viz.

‘THAT they do not remain implacable; for the Homicide is re­compensed with a certain Number of great and small Cattel, and the whole Family thereupon receives Satisfaction.’

THIS Custom continued long not only among the Germans, but al­so English-Saxons; The Price of Blood being to be redeemed at a certain Rate, according to each Man's Condition, which you will hereafter often find in the said Laws to be mentioned under the Title of WIRE­GILD: and in the Laws of King Aethelstan you will meet with the particular Prices of each Man's Head, from the Clown even to the King himself; the Estimation of whose Life is likewise there set down, thô at a much higher Rate (as it ought to be) than that of other Mens. But of this we shall speak more anon.

[Page xxxviii] 9 THE ninth Law bears, that Frumenti modum Dominus, aut pecoris, aut vestis Colono injungit, viz.

‘THE Lord of the Soil prescribes to the Husbandman, what quantity of Corn, Cattel, or Clothes he shall pay him.’

FROM whence we may take notice of the Antiquity of Rent re­served upon Farms, which was chiefly in Provision, and not in Mo­ney, as it continued for a long Time after the Conquest here in Eng­land, and remains so in Scotland even to this Day.

HAVING thus done with the Laws, we shall next descend to the People who practised them.Adam. Bre­mens. Hist. Eccles. Brem. & Hamburg. cap. 5. ex Bib­liothecâ Hen­ric. Ranzovii. The antient Saxons, as Adam of Bremen from Einhardus relates, were like the Germans, divided into these four sorts, viz. Noblemen, Freemen, Slaves that were Manumized, and lastly, those that continued Slaves: But Nithard. p. 4. Nithardus speaking of his Time, makes them but of three sorts, scilicet, Ethelings, Frilingues, and Lazzi, that is, Noblemen, Freemen, and Slaves: and it was established as a Law among them, that none of these should transgress the Bounds of their own Condition, by matching with those who were either a Degree above, or below them.

THIS Custom was also long observed in England after the Con­quest,Vid. Mag. Charta, C. 6. & Merton. C. 7. and gave Original to those Statutes of Mag. Char. and Merton, by which the Lord was to lose the Benefit of his Wardship, in case he mar­ried the Ward to his Disparagement, that is, To the Daughter of a Vil­lain, or a Tradesman, in case that the Kindred complained of it.

BUT before we come to treat of the several Degrees of People a­bovementioned, it is fit we should say something of the Head of the Saxon Common-Weal, viz. their King; who though he was chosen in all the Kingdoms of the Heptarchy, out of the Blood-Royal of Wo­den, their first Leader of this Gothick Colony into Europe, as appears by their Pedigree at the end of the Book; yet were they at first no better than Generals in War,Bede Eccles. Hist. Li. 5. Cap. 12. and in time of Peace they had little or no Power, as we may see in Bede.

FOR he speaking of the Province of the Hither (i. e. East) Frize­land, (from whence he supposes our Saxon Ancestors to have come, and to which the two Hewalds, the White and the Black, went to preach the Gospel, and were there martyr'd for their Pains) he hath this re­markable Passage, Non enim habent Regem iidem antiqui Saxones, sed Satrapas plurimos suae Genti praepositos, qui ingruente Belli Articulo mit­tunt aequalitèr sortes, & quemcunque sors ostenderit, hunc tempore Belli Ducem omnes sequuntur, & huic obtemperant; peracto autèm Bello, rursum aequalis potentiae omnes fiunt Satrapae: i. e. ‘For the Antient Saxons (says he) have no King, but several Noblemen of their own Nation set over them, who on the breaking out of any War, cast Lots, and on whomsoever the Lot happened to fall, all the People during that War, follow and obey him as their General; but when the War was over and at an end, all these Lords again became of equal Power.’

AND it is likewise very observable, that neither Bede nor any other German Author, who relates the Story of the Saxons being invited by the Britains over hither, ever mention their being sent by any of their Kings, but only by the Saxon Nation in general: and if it continued thus in Bede's Time, it ought reasonably to be concluded, that it was [Page xxxix] likewise so before their coming over, unless any Man can shew me some better Authority than ever I have yet met with to the contrary.

AND that this likewise continued so, not only in Bede's Time, but many Years after, may appear from this Testimony of Johan. Pomarius in his Saxon Chronicle, which, tho written in Latin, yet not being able as yet to procure the sight of it, I shall give you what he says almost to the same effect out of Verstegan's Restitution of decayed Intelligence;Verstegan. Chap. 3. pag. 68, 69. ‘As for the General Government of the Countrey, they ordained twelve Noble-men, chosen from among others for their Worthiness and Sufficiency. These in the Time of Peace rode their several Circuits, to see Justice and good Customs observed; and they often of Course, [...]t appointed Times, met all together, to consult and give Order in Publick Affairs; but ever in Time of War one of these twelve was chosen to be King, and so to remain as long only as the War lasted; and that being ended, his Name and Dignity of King also ceased, and he became as before: and this Custom continued among them until the Time of their Wars with the Emperor Charles the Great, at which time, Wittekind one of the Twelve as aforesaid, a Nobleman of Angria in Westphalia, bore over the rest the Name and Authority of King; and he being afterwards by the means of the said Emperor converted to the Faith of Christ, had by him his mutable Title of King turned into the induring Title and Honour of Duke; and the eleven others were in like manner by the said Emperor advanced to the honourable Titles of Earls and Lords, with Establishment for the continual remaining of these Titles and Dignities unto them and their Heirs; of whose Descents are since issued the greatest Princes at this present in Germany.’

FROM what now I have given you, I think nothing is more evident than that the Government of the Antient English Saxons was rather Ari­stocratical than Monarchical: and admitting they allowed the King they had set over them somewhat more Power than those Noblemen abovementioned, by whom they where governed in their own Coun­trey in time of Peace; yet was this Power of theirs far short of that absolute Dominion which Dr. Howell in his Discourse of the Polity of the English-Saxons supposes, (tho without any just Ground,Dr. Howell's General History, Part. 4 Fol. 272.) that these Kings enjoyed, and therefore he would have it, ‘That the Govern­ment was Monarchical, and that not only in respect of the parti­cular Kingdoms during the Heptarchy, which had their peculiar Kings, but even of the whole Body of the Nation, which was usually commanded by one of the Seven; of all which Bede takes notice in his Time.’

BUT if every one of these Kings were no more a Monarch, than he who was sometimes Supream or Chief above the Rest, I doubt he will fall very short of that Title, which is not found either in Bede, or in the Saxon Annals, or yet in any other Antient Writer before the Conquest, until the Time of King Edred,

BUT I have said enough to confute this Notion, I hope, in the Pre­face.

THE Doctor's next Argument is from the Nature of the Monarchy, which he says, ‘We must believe at the first followed the Condition of the Tenure, absolute Conquests and Territories,Id. ibid. both got and held by the Sword alone, usually producing absolute Governments, [Page xl] which many times either by reason of the infirm Foundation laid by the Conquerors themselves, the Humour of the People not induring such Subjection, or other Accidents, change into more Moderate and less Arbitrary. That Hengest, Aella, and the other Captains, where they first erected their Dominations, governed their Souldiers, whom now being Kings they called Subjects, with as great Autho­rity, and as full Command as formerly, we little doubt.’

IN answer to this, and to shew you, that notwithstanding what this Author hath alledged, we have still great reason to doubt the Truth of it, as being founded on no Authority, but rather the quite contrary appears; I shall therefore only desire the Reader in the first place to take notice, that it is no good Argument at all to say, that because the Saxon Princes were Conquerors by the means of their Followers, therefore they must have submitted themselves absolutely to their Dominion, when the War was over.

FOR the better Proof of which, I would farther intreat the Reader to observe;

FIRST, That those Princes or Generals over the English-Saxons; (thô all of them were descended from Woden their Common Ancestor,) knew no such Power as that of Kings of Home, (according to Bede;) or if we believe Pomarius, the Title of King lasted at the most no longer than the War: nor could those Princes be made Kings by their own Nation before they came over, since being only meer Souldiers of For­tune, they had as yet conquered no Dominions, from whence they could receive that Denomination: so that then it must fall out, that they could only be so by the Election of their Souldiers and Followers, that came over along with them; which may be also proved from the ensuing Annals themselves.

FOR first they call Hengest and Horsa the two Brothers, who came over hither only Heretogan, i.e. Leaders or Captains of the Jutes that accompanied them, as you may see An. 449. of these Annals.

NOR secondly, do they begin the Reign of Hengest till the Death of Horsa his Brother, Anno 455. six Years after his coming over: so that it is plain he could have no other Right to his Kingdom of Kent, but the free Election of the People that came over with him, or else followed him not long afterwards.

THE like I might say of all the rest of the Kingdoms of the Hep­tarchy for the same Reason, were there no express Authorities to prove it, which yet also are not wanting.

FOR as to the Kingdom of the West-Saxons, (which afterwards swallowed up all the rest) our Annals, Anno 495. tell us ‘Of Cerdic, and Cynric his Son, their landing in Britain with five Ships, and having fought with the Britains, they about six Years after their coming over, upon their conquering the Countrey of the West-Saxons, became their first Kings: which is further confirmed under Anno 519. where it is expresly related, that Cerdic and Cynric then began their Reigns over the West-Saxon Kingdom. So likewise in Anno 547. it is there said, that Ida began first to reign; from whom is derived the Royal Stock of the Northumbrian Kings.’

AND yet we find from Nennius and Malmesbury, and all our other Hi­storians who treat of this Matter, that Octa and Ebusa, Son and Nephew to Hengest, had landed in the Northern Parts of England not long after [Page xli] Hengest himself; and having conquered those Countries, they and their Descendants ruled there for near 100 Years, tho without the Title of Kings, but only as subordinate Lords or Earls under the Kings of Kent, till this Ida obtained the Kingdom; but whether by Succession or E­lection, William of Malmesbury cannot tell us, but rather inclines to the latter: and tho it be true, that these Annals mention no other King­doms of the Heptarchy than these three last; yet it appears from very good Testimonies in the ensuing History, that Norfolk, Suffolk and Cambridgshire, being the Countrey of the East-Angles, were conquered by them under several petty Princes, that ruled there long before Vffa, who was made the first King of that whole Countrey.

THE like I may say for the Mercian Kingdom, where Creoda, or Crida, began his Reign about Anno 585. above 60 Years after the East-Angles first settled in those Parts.

HAVING now, I hope, sufficiently proved this Point against the Learned Dr. Howell, I think it will plainly follow, that all those Kings above-mentioned could have no other Title to their Crowns besides Election, who from Captains and Generals in time of War, became Kings in time of Peace over the Countries they had conquered.

I will here therefore leave it to the Impartial Reader, to consider; whether what Dr. Howell asserts is at all likely to be true, viz. ‘That the Power of these Kings commencing by the Sword, was as abso­lute in Time of Peace as in that of War: for we plainly see, that these were a free People, and it is in no ways probable that they should, contrary to the Genius of so noble and free a Nation, submit themselves to the absolute Dominion of one Man, who owed his delegated Power to themselves.’

BESIDES this, the original Constitution of all these several King­doms speaks the quite contrary; for we find in the following History, frequent mention made of great Councils of the Wites, i. e. the chief, or wise Men of the whole Kingdom, which Councils were established to curb the exorbitant Power of their Kings; since by these they were elected, and by these too they were likewise often deposed, when ever their Tyranny rendered them insupportable; as you will see in several Instances when you peruse the following Books in this Volume.

AND thus having traced as far as we are able the Original of the first English-Saxon Kings, we shall now in the next Place treat of the manner of their Succession to the Crown, which some of our Modern Authors fancy to have been by a Lineal Succession, because we find the Son to have often succeeded the Father in most of these Kingdoms for several Descents. But if this should be granted, yet is it no good Argu­ment to prove a Lineal Succession by Blood: for tho I am sensible that the Saxon Annals, as well as all other Historians, are very obscure in this Point, not declaring which way those Princes came to the Crown, whether by Succession or Election, because it was omitted in the old Saxon Annals out of which they wrote, and which we find very short in that particular; yet this will by no means warrant those Kingdoms to have been only Successive, as some Men fondly suppose; seeing we may observe, that in the German Empire, (which every one knows to be Elective) the Son hath succeeded the Father, or a younger Brother the Elder, for above 150 Years, ever since the Time of the Emperor Ferdinand Brother to Charles the Fifth; however I hope no Body will [Page xlii] have the Confidence to affirm, that the Empire hath been only Succes­sive, and not Elective all this while.

THE same I may say concerning the Succession of our English-Saxon Kings, in which tho we find the Son often succeeded the Father, or one Brother another, yet does not this prove that the Succession went by right of Inheritance, as it does at this day.

I MAY say the like as to Denmark and Sweden, the latter of which has been by Succession but little above fourscore Years from Charles the Ninth; and as for the former, it has become so even in our own Memories: and yet for many Successions in both these Kingdoms, he that was the next Heir by Lineal Descent, was most commonly cho­sen King after the Death of his Father, Uncle or Brother; but before this Election he could claim no Legal Right to the Crown by the Laws of these Kingdoms, of which I shall give you divers Instances. And I think we may affirm this of all the Kingdoms of the Saxon Heptarchy; where tho the Mycel-Gemots commonly obliged themselves to choose one of the Blood-Royal, and the next Heir rather than any other, pro­vided he were equally fit to govern, especially if he were recommended or designed for Successor by the Will of the last King; however in this they took a great Latitude, as will evidently appear in the pursuit of this Discourse.

BUT I must confess the manner how the Saxon Kings came to the Throne is but darkly expressed by the words FENG to RICE in Saxon, in Latin Regnum capessit, which we have commonly rendered, succeeded in, or to the Kingdom: yet those words do not signify any Lineal Succession, but are often promiscuously used, when the next Successor could have no Title but Election, as shall be farther shewn by and by.

NOW the best way to prove this, I think, will be briefly to survey the Successions of each Kingdom, and the several Breaches and Altera­tions that were made therein, upon this supposed Lineal Succession. And first,1. Kent. to begin with the Kingdom of Kent, of which we indeed have scarce any more than the bare Names of the Kings, with but ve­ry little of their Actions, for about four Descents, till Ethelbert the first Christian King there began to reign, only that the Son still succeed­ed the Father.

SO likewise from this Ethelbert to Earcombert his Grandson, for two Descents more we find the like seeming Lineal Succession; yet for all this doth it not therefore follow, that there might not have been either elder Brothers, or the Sons of them, who were excluded during that Time; seeing that we only meet with the next Successor mentioned, without telling us whether there were not such Heirs put by: for un­der the Year 640. we learn from our Annals, that Earcombert King of Kent succeeded Eadbald his Father abovementioned, who yet left an elder Son named Ermenred, that according to the Course of Lineal De­scent ought to have succeeded to the Kingdom before his younger Bro­ther Earcombert: Vid. Florence of Worcester's Genealogy of the Kentish Kings at the end of his Chro­nicle, pag. 689. and Will. of Malmes [...]ury, Lib. 1. p. 10, 11. but whether he was disinherited by his Father, or rejected by the People, our Annals mention not, only that this Ermen­red left two Sons, who afterwards were made away by one Thunor, Servant to King Earcombert.

AFTER him Egbert his Son succeeded, leaving a Son called Eadric, yet he did not succeed as he ought to have done (according to our Mo­dern Opinions) by Hereditary Right, but Lothaire his Uncle, that kept [Page xliii] the Kingdom twelve Years from him: But whether he came in by the Testament of his Brother, or Election of the People, or by both, neither Bede nor any other Author give us an Account; tho it must be confessed, that this Eadric was discontented at his being thus put by, and therefore fled to the South-Saxons, and joined with them who were then in actu­al War against Lothaire; who happening to be worsted in the Fight where this Eadric commanded, and dying of the Wounds he therein received, Eadric succeeded, but whether by Right of Lineal Descent, or Election, is no where said: Nor doth his thus making War upon his Uncle prove his Right, since we find that King Edward the Elder suffered the like Disturbance from Prince Vide Saxon Annals, Anno 901, 902. Ethelwald, the Son of King Ethelred his Father's elder Brother, as you will see in the beginning of the Reign of that King, which ended not but with the Life of the said Prince Ethelwald, who pretended to the Crown.

NOR were Foreign Princes any better satisfied with Eadric's Right; for William of Malmesbury tells us, that Ceadwalla made War upon him,Ibid. and destroyed his Countrey, to revenge the Death of King Lothaire his Predecessor.

BUT after this Eadric, two Princes, called Webba and Seward, held the Kingdom, which must certainly have been by Election, because it is not related, whether they were of the Royal Family or no; but they reigned not long, for Whitred Brother to Eadric succeeded them: after whom this Kingdom seems to have gone in a Lineal Succession for three Descents, as far as to his Sons Eadbert, Ethelbert, and Alric; tho these Prin­ces might have been also elected, for ought we know to the contrary, for they all reigned successively after each other: But whether any of these left Sons is uncertain, for Malmesbury tells us, ‘That after them the Kentish Royal Family decaying, any bold Aspirer, whom Wealth or Faction made formidable, obtained that Crown, but how?’— Most Likely by the Election of their Great Councils, for Usurpations by Force could not well be practised in Kingdoms where (there being no standing Army) the King in great measure depended on the general good Will of the People.

BUT as for the next Kingdom, viz. that of the South-Saxons, 2. South-Saxons. there is so little said of them by any of our Historians, and they were so soon swallowed up by the Kingdom of the West-Saxons, that we can only guess they succeeded to the Crown, but it is most probable, that it was after the same manner as the Kings did in all the other Kingdoms.

I should next treat of the Kingdom of the West-Saxons, according to the course of Time wherein it begun, but I intend to reserve that to the last, because it is from them that all our English-Saxon Kings de­scended, till the Conquest.

AND therefore I will now give you a brief Succession of the Kings of the East-Saxons, 3. East-Saxons. where they seem to have followed in a Lineal De­scent, till Sebert, the first Christian King; and he dying, as Bede relates,Bede Lib. 2. Cap. 5. & Flor. Wig. pag. 690. left his three Sons joint Heirs of his Kingdom, tho we can find no more than the Names of two of them, viz. Sexred and Seward, who being both slain in Battel against the West-Saxons, Sigbert, the Son of Se­ward, succeeded him.

THIS I remark to shew you, that this Kingdom did not always go according to a Lineal Succession, for all the three Brothers were Heirs alike: and that the Testament of the King alone had not the Power to [Page xliv] do this without the concurring Assent of the Great Council of the Kingdom, I shall prove when I come to discourse of the Succession of the West-Saxon Kings; since it is most reasonable to suppose the same General Laws or Constitutions concerning it to have been in use among them all, until any one can prove the contrary.

I have no more to say concerning these Kings of the East-Saxons, but that after the Death of King Sebbi or Sebba, Ibid. Cap. 12. we are informed by Bede, that Siggard and Swithered his two Brothers, reigned jointly after him, which I observe only the further to make good the former Instance, of more Heirs than one at a Time.

4. Nor­thumbers.AND now I come to the Kingdom of the Northumbers, the Lineal Succession whereof being so often broken, and so very perplexed, it would be tiresome to give you all the particular Instances in which the next Heirs by Descent were put by, and other Princes of the Blood more remote chosen by the People in their Rooms: so that from Ida their first King for near three hundred Years, we shall scarce ever find that Crown settled in any one Family for above three Descents, but that it was still translated to some other Prince of the Blood Royal,Vid. The Gene­alogies of the Saxon Kings at the end of Florence of Worcester. which seems to have been the most general Rule they observed, as any one may see, who will please to consult their Pedigree at the end of Flo­rence of Worcester.

AND indeed the frequent Rebellions of this Nation against their Kings, and the Deposing of them so as they did, being not only observed, but frequently blamed by William of Malmesbury and our other Antient Historians, I shall not draw any Precedents from thence, but such as we find in the very beginning of this Kingdom, and before that People were infected with that turbulent Humour of casting off their Kings whenever they displeased them.

Lib. 1. Cap. 3.TO begin with Ida their first King, 'tis true William of Malmesbury will not affirm, whether he made himself King by his own Power, or else became so by Consent of the People, because he owns it to be very much in the dark; yet Henry Huntington is positive, that he was chosen to this Dignity by the Consent of the Great or chief Men: but after his Death, tho a Prince of great Merit, the Kingdom became divided, and Adda his Son only obtained the Kingdom of Bernicia, whilst Aella, the Son of Yffi, of the same Royal Lineage, succeeded him in that of Deira, which how it could be unless by Election, I do not understand.

See Florence in the Place a­bove cited.NOR did any of the Sons of Adda succeed him in that Kingdom, but three other Princes, viz. Glappa, Theodulf, and Frethulf, whose Relation to the Northumbrian Blood Royal, our Authors do not declare, nor yet how they stood in Consanguinity to each other; only they say that after them, Thedorick first, and then Ethelrick, the Sons of Ida, succeeded in the Bernician Kingdom, which how they could do other­wise than by Election I do not find.

Flor. Ibid.AND note, that these six Princes last mentioned, governed Bernicia, whilst Aella being yet alive still reigned in Deira; nor did he, for all he ruled above thirty Years, long secure the Kingdom to his Son Eadwin; for he was soon expelled by Ethelfrith, the Son of King Ethelrick, who forced him to fly his Countrey, whilst he commanded both Nations for several Years, till being at last overcome and slain in Battel by Redwald King of the East-Angles; Eadwin again recovered not only his own Kingdom, but that of Deira also.

[Page xlv]BUT yet he did not enjoy what he had thus obtained many Years, for he lost his Life in a fight with Penda King of the Mercians, and then Osric his Cousin-German succeeded him in Deira, whilst Eanfrid, the Son of Ethelfrith, was made King of Bernicia; but he soon after be­ing killed by Cadwallo King of the Britains, Oswald his Brother succeeded him, who being also slain by the said Penda, Oswin his younger Bro­ther was made King, whilst Oswy, the Son of Osric, reigned in Bernicia, and having cruelly murdered Oswin, made himself Master of both King­doms; but whether it was done by the Power of the Sword, or by Election, since our Authors are silent in this Matter, I will not deter­mine. I have only set down the Succession of these first Kings, to shew that there was not often any Hereditary Lineal Right to the Crown observed among them.

AS for the Kingdom of the East-Angles, 5. East-Angles. the Antient Annals and Histories of that Countrey having been all destroyed by the Danes, we have little more than the Names and Successions of their Kings left us, nor yet of those higher than Vffa, (tho it is certain the East-Angles had fixed themselves in those Parts long before he began to reign) and those but very lame and defective: For from Ethelbert who was murde­red by King Offa, for above threescore Years, we have no Account of what Kings reigned in that Kingdom; and it is certain, that upon the Death of Offa and his Son Egfert, the People of the East-Angles freed themselves from the Mercian Yoke; but about the Year 855. (as As­ser in his Annals, and Florence of Worcester assure us) Edmund, (after called the Martyr) being then but fifteen Years old, was Elected and Crowned King of the East-Angles by the general Consent of the Peo­ple of that Kingdom; but they do not inform us who was his Father; yet if we may give Credit to John of Tinmouth in his Sanctilogium, he makes him to be the Son of one Alcmond a Nobleman of the Blood Royal.

I have given you this Instance, to let you see that they were no Strangers to Elective Kings; for if his Blood alone would have fixed in him any Title, there would have been no need at all of his Electi­on: but this King being afterwards murdered by the Danes, they al­so seized on his Kingdom, and held it till it was reconquered by King Edward the Elder.

NOR have we much to remark of the manner of the Succession of the Mercian Kings;6. Merci­ans for tho the Son very frequently succeeded the Fa­ther, or one Brother or Cousin to another, yet it is as certain that it must have been chiefly by an Elective Right, notwithstanding the Annals and our Historians do not expresly mention it: Florence Wig. p. 691. For Beornred having in the Year 755. treacherously slain Ethelbald King of the Mercians, Offa a young Man of the Blood Royal, raising Forces against him, and having driven him out of the Kingdom, he was, as Pag. 852. printed at the end of Script. post Bedam. Ingulph relates, made King in his room by the General Consent of the Nobles of Mer­cia; or as Anno 758. Matthew Westminster words it, ‘He was by the unanimous Consent of the Clergy and Laiety of that Kingdom, Elected and Crowned King; which without doubt was done in a Great Council of that Nation, for we find that to secure the Crown to his own Family, Page 26. Matthew Paris in his Life of King Offa, tells us, that in a Great Council assembled at Calcuith, Anno 787. he caused Egfrid his eldest on, a comely and valiant Youth, to be crowned King, who [Page xlvi] jointly reigned with him as long as he lived: and that this could not be done without the Consent and Election of this Great Council, appears by the twelfth Law or Decree made therein,Vid. Sir Henry Spelm. Co [...]cil. Vol. 1. Anno 787. entituled, De ordinatione Regum, viz.’ ‘That at the Election or Ordination of Kings, no Man should permit the Assent or Vote of evil Men to prevail, but Kings shall be lawfully Elected by the Clergy and Elders, (i.e. chief Men of the King­dom) and not begotten of Adultery or Incest, because an Adulterer, according to the Canons, cannot arrive to the Priesthood; so neither can he be the Lord's Anointed and Heir of his Countrey, or King of the whole Kingdom, who is not begot of Lawful Matrimony.’

FROM hence the Reader may observe, that he who is appointed to be Elected, is also called Haeres Patriae, to let us see, that he who was to come in by an Elective Right, was also accounted the Right Heir of the Kingdom.

AFTER Egfrid succeeded Kenwulfe, who certainly came in by Election, being himself very remote from the Crown; for William of Malmesbury says,Lib. 1. he was in the fifth Descent from Cenwalch the Brother of Penda, one of the first Mercian Kings; a Title too stale in that Age to give a Right without a new Election, since his Predecessor King Offa could not be admitted to obtain the Crown without it, tho he was in Blood almost as near to it,Vid. Chroni­con Saxoni­cum, Anno DCCLV. where his Pedigree is set down. being in the fifth Descent from Wibba or Wippa, who was the Father of the aforesaid Penda.

BUT were there no other Proof of this, the Decree of the Council abovementioned sufficiently evinces this Kingdom to have been elective at that Time.

TO Kenwulf abovementioned, succeeded Kenelme a Child, and he is the first Example of an Infant's succeeding when there was a Male Heir of full Age alive,Vid. William Malm. Lib. p. 33. viz. Ceolwulf the Brother of the said Kenwulf; which I suppose proceeded from the great Love they bore to their late deceased King, and some Aversion they had to his Brother, as you will see by and by.

BUT if John of Tinmouth in his Historia Aurea, (still in Manu­script in several Libraries) may be credited, tho he wrote long after those Times, yet out of antient Manuscripts not now extant, he says expres­ly, Kenelmum aetate parvulum, sed animo & pietate magnificum, ad Re­gem elegerat Amor Populi sui, i. e. the Love of the People had elected Kenelm to be their King, tho an Infant in Years, yet remarkable for Spirit and Piety.

BUT King Kenelme being murdered by his Sister Quendride, and she frustrated in her expectations of the Crown, our Annals tell us, that then Ceolwulf was advanced to it, (without making any mention at all of King Kenelme) and the next Year expelled his Kingdom by the Faction and Contrivance of Bernulph a potent Nobleman, but how­ever no way related to the Blood-Royal, and so consequently could have no other Title or Pretence but Election, however unjustly he came by it.

THE like I may say of his Successors Ludican, Wiglaff, Bertwulf, and Burhed; the former of whom was only a remote Kinsman of Ber­nulph's, and the three latter were all of them of quite different Fami­lies: but as for Ceolwulf, who was the last that bore the Title of King of Mercia, he deserves not to be mentioned, being only for a Time made King by the Danes to serve their turns, and was quickly after de­posed by them. I have but lightly run over the Succession of these [Page xlvii] Kings, and refer you for the farther Proof to the following History, where you will find all the Authors fairly quoted.

BUT now I come to the Succession of the Kings of the West-Saxons, 7. West-Saxons. from whom our English Monarchs derive their Pedigree to this Day: and therefore I shall be the more particular in my Quotations out of the Antient Authors concerning the Right which those Princes had to the Crown, and the manner how they attained it.

AS for Cerdic, and his Son Cynric, the first Kings of the West-Saxons, it is certain that they had not the title of Kings before they came over, which the Annals place under Anno 495. as we have already observed: nor is it likely that they claimed by any other Title than the Election of their Followers, because we find by the same Annals, that it was above twenty Years before they took upon them the Name of Kings; for An. 519. they say, Hoc Anno Cerdicus & Cynricus Occidentalium Saxonum Regnum susceperunt; à quo usque die regnavit Occidentalium Saxonum proles Regia. This Year Cerdic and Cynric began to reign over the West-Saxons, and from that Time the Royal Race of the West-Saxons have reigned to this day.

BUT it must be confessed, that the Crown from Cerdic to Ceawlin went lineally in three Descents from Father to Son; however this doth not prove but that it might also have been Elective for the Reasons at first given.

THE same may likewise be said for Ceolric and Ceolwulph the Ne­phews of Ceawlin: but that the former of these came in by Election is apparent; for upon Ceawlin's being expelled the Kingdom, Cwichelme Vid. Rad. de Diceto, Anno 593. his Brother ought to have succeeded him in case he had no Sons, as we do not read he had: and yet notwithstanding Ceolric was made King, and this Cwichelme died in the same Year with his Brother, viz. DXCIII. as you may see in the Annals.

AND to Ceolwulf succeeded Cynegils, Son of Ceol, Vid. Annal. Saxon. An. 611. Brother to the King last mentioned; and that he also came in by Election is highly pro­bable, because another Cwichelme who was his Brother was made Part­ner with him in the Kingdom, which could not have been done by his sole Authority, his own Power at that Time not being absolute.

THIS Cwichelme Lib. 1. cap. 2. William of Malmesbury makes to be his Brother; but Florence of Worcester, and Matthew Westminster, call him his Son: but let him have been whether you please, it is certain here was no Mo­narchy, the Kingdom being divided between two who had equal Power. But Cwichelme dying before Cynegills his Brother or Son, the latter left the Kingdom to Cenwalch his Son; tho if Cwichelme was his Son, then Cuthred his Nephew, the Son of Vid. Flor. Wig. An. 666. and the Pedi­gree at the end of the 4th Book. Cwichelme, ought by right of Blood to have succeeded his Father.

BUT this King dying without any Issue, Vid. William Malmesb. Lib. 1. pag. 13. left the Kingdom to Sex­burge his Consort by his Testament.

AND tho this Example may seem to make good Dr. Brady's asser­tion, viz. that the West-Saxon Kings might bequeath the Crown to whom they would, yet that they could not do this without the Con­sent of the Estates of the Great Council of the Kingdom, I hope I shall fully make out before I have done.

BUT this Queen Sexburge dying, or being deposed, as Flor. Hist. Anno 672. Matth. West­minster relates, after somewhat more than a Year's Reign; Aescwin a re­mote Kinsman succeeded her, tho he was six Degrees off from Cerdic the [Page xlviii] first King; and therefore he is not likely to have had any better Title than his Predecessors, for the Reason already given under the Kings of Mercia; and if that will not satisfy, then I say Centwin his Successor was much nearer to the Crown than he, being younger Son to Cynegils, who had reigned within two Successions before, as you may see by the Pe­digree at the end of the fourth Book, where are exactly set down either from the Annals, or Antient Manuscripts, in what manner these se­veral Kings stood related to each other.

BUT before the Death of Aescwin, it seems by the Saxon Annals, Anno 785. That Ceadwalla, a Prince of the Blood Royal, taking Arms, began to contend for the Crown of that Kingdom, tho he was very far removed from it, being descended from Cutha the younger Son of Ceawlin.

Vid. Annal. Saxon. Anno 693.TO Ceadwalla succeeded Ina, to whom that King upon his going to Rome left the Crown, tho he was no nearer to it than his Predecessor, being descended from Cuthwin, the youngest Son of Ceawlin abovemen­tioned, and could for certain have had no other Right than that of Election, because Cenred his Father was alive at the same time, as you may see in the Vid. 1st Vol. of Sir Henry Spelman's Councils, as al­so the ensuing History. Preface to this King's Laws, where he is expresly so called.

BUT as for the five next Princes, viz. Athelhard, Cuthred, Sigebyrht, Cy­newulf, and Bryhtric, it is most probable that they neither could have any other Title than Election, since being only Kinsmen and not Sons to each other, it is very unlikely that so many of them should have died without leaving any Son to succeed them: which is also as good as confessed by William of Malmesbury, in these words, Nam & ipse Brihtricus, & caeteri infra Inam Reges, licet naturalium splendore glori­antes, quippe qui à Cerdicio originem traherent, non parum tamen à linea Regiae stirpis exorbitaverant; i. e. For tho Brihtric himself, and the rest of the Kings since Ina, tho boasting of their Royal Lineage, as draw­ing their Origine from Cerdic, yet did they not a little deviate from the right Royal Line, that is, they were not Lineal Heirs by Blood: and if so, what other Right could they have except that of Election by the People? Therefore since neither our Annals, nor any other Au­thor that I know of, have given us their Pedigrees, I have been forced to set down the Names of these last five Kings by themselves, with­out being able to shew you what Relation they had to each other.

BUT as for Cynewulf, that he could have no Title to the Crown but what Election gave him, it is certain; for our Annals inform us under Anno 755. ‘That he with the Wife and Noble Men of the West-Saxons, deprived King Sigebert of the whole Kingdom for his Cruelty and Injustice.’ And certainly then the same Authority that Deposed the one, must also Elect and set up the other; since he could by no means succeed him as his Heir, because we find in the same Annals, Anno 755. ‘That Cyneheard the Brother of the late King Sigebert, con­spiring against King Cynewulf, set upon him in a certain Woman's House at Merton in Surrey, and there slew him; and was at last also killed himself: after whom Bryhtric began to reign, who was in a Right Line descended from Cerdic.’

BUT we are now come out of the Dark into clearer Times; for K. Egbert succeeding Bryhtric, came in by Election, being, as our Annals [Page xlix] likewise inform us, four Descents removed from Ingilds the Brother of King Ina; and that his best Title was Election, appears from the Te­stimonies of our most antient Historians, viz. Ethelwerd, who says ex­presly, Itá (que) ordinatur Egberht super-Occidentales Saxones in Regnum;E [...]helwerdi Hist. Lib. 3. cap. 2. this must signify, that he was set over the Kingdom. And further to confirm that, Ordinatur here signifies the same with Eligitur: see the Law abovementioned concerning the Election of the Mercian Kings; the Title of it in Sir Henry Spelman's first Volume of Councils,Fol. 292. is, de Ordinatione Regum, i.e. of the Election of Kings.

AND that by this word Ordinatur, cannot be meant any Lineal Suc­cession in Ethelwerd, will further appear from him, where he says,Lib. 4. Cap. 1. Post Obitum Athulfi Regis, ordinati sunt filii ejus in Regnum; which must be understood either an Appointment by the Father's Will, or else a new Election, since these Sons of King Aethelwulf could never be thus appointed or ordained Kings by the Law of Lineal Succession, be­cause each of these Brothers, except the Eldest, left Sons.

BUT William of Malmesbury does likewise as good as own,Lib. 2. Cap. 1. that King Egbert came in by Election, when he says, that upon the Death of Brytrich, Egbert at the frequent Solicitations of his Countrey-men coming over into Britain; Móx (que) imperare jussus, Patriae Desideriis sa­tisfecit, being immediately commanded to reign, did thereupon sa­tisfy the Desires of his Countrey. Now I would fain know, if he had come in by virtue of a Lineal Descent, why he should have needed the being commanded to reign, since he ought rather to have com­manded their Allegiance as his Due?

AND either to this Time, or rather to the latter end of this King's Reigny (as you may find in the ensuing History) I suppose may be re­ferred what the Author of the Mirror of Justices, in the very begin­ning of the Book, says concerning the first Election of a King to reign over the rest of the Saxon Sovereign Princes, viz. ‘That forty of them made him to swear, that he would maintain the Holy Christian Faith with all his Power, and govern his People according to Right, with­out regard to any Person: and that he should be liable to suffer Right, (i. e. Judgment) as well as others of his People.’

THIS Passage, tho it be accounted by some of but a doubtful Au­thority, because of the forty Princes abovementioned, whereas we ne­ver read of above seven or eight Saxon Kings to have reigned at once, and those [...]oo were by this Egbert reduced to three besides himself; viz. the East-Angles, Mercia, and Northumberland; yet if by the Princes here mentioned, we understand not Sovereign Princes, but Ealdormen of Counties and Great Cities, who (as Mr. Selden shews us in his Ti­tles of Honour) are commonly stiled in the old Saxon Charters Princi­pes, and by this Author in his French Original, rendred Princes;Selden. Tit. Hon. Fol. 502. last Edition. these meeting together in a Great Council, did, as the chief Magistrates of the Cities and Counties from whence they came,The Division of England into Counties was much more an­tient than King Alfred. injoin the King this Oath which was taken at the General Council mentioned in the ensu­ing History under Anno 803, or else 828. This Passage in the Mirrour of J [...]stic [...]s, if it were taken out of some old Saxon Monument now lost, (as I have great reason to believe it was, since the Laws which he here relates concerning King Alfred, are admitted by the Learned Author of the Notes upon his Life, printed at Oxford, Aelfredi Magnì Vita, Fol. 82. to have been transcribed by him from some Antient Commentaries of that King, [Page l] which Laws he there a little after recites:) I say, this Passage may serve as a great Proof, not only of this King's Election to be the Chief or Supream King of all England, but also it gives us the Original Contract, if I may so call it, which he then entred into with this Nation, at the time of his Election and Coronation.

TO Egbert succeeded Athelwulf his Son; who, though I grant it is no where said that he was Elected, yet if his Father were so (as it is most evident he was) it is not likely that the Kingdom should become Successive in one Descent, especially if we consider the manner of all his five Sons coming to the Kingdom, either in his Life-time, or after him.

Vid. Annal. Saxon. & Flor. Wig. An. 636.FOR as to Athelstane his eldest Son, on whom he bestowed (almost as soon as he came to the Crown) the Kingdom of Kent, with the South and East-Saxons, I have proved in the ensuing History from Flor. Hist. Anno 637. Matthew Westminster and other Authors, that he was Illegitimate, and so could have no Legal Right of Succession: nor does it seem probable, he should be set over those Kingdoms by his Father without any previous Election, or Consent of those People.

AND as for his other four Legitimate Sons, Ethelbald, the Eldest of them, did by the General Consent of the King and the whole Nation, (which amounts to an Election) Vid. Annal. Asserii, Anno 855. pag. 56. edit. per Doct. Gale, & De Ge­stis Aelfredi, pag. 3. divide the Kingdom with his Fa­ther, he himself enjoying that of the West-Saxons, whilst his Father ruled over the rest. And by the virtue of his Testament, confirmed likewise by the General Consent of the Kingdom, Ethelbald remained only King of the West-Saxons, whilst Ethelbert his second Brother reign­ed in Kent, as also over the East and South-Saxons, which had been his Brother Aethelstane's share, who died without Issue for ought we can find.

BUT after King Ethelbald's Death, Ethelbert succeeded in the whole Kingdom; and he likewise dying, Ethelred his Brother succeeded him, after whose Death also Alfred the youngest Brother came to the Throne.

THIS short Account is the Truth of the Matter of Fact; yet there re­quires a great deal to be said to have it well understood; since Dr. Bra­dy in his true and exact History of the Succession of the Crown, Vol. 1. of his Introduction, will needs derive the whole Right which these Prin­ces had to the Kingdom, from the Entail of it by their Father's Will a­bovementioned; and if the Testament of a King then Regnant could dispose of the Crown to the prejudice of the Right Heirs by Lineal Descent, I desire this Learned Antiquary to satisfy us how this could consist with his supposed Right of Lineal Succession at the same Time?

BUT the Truth is, this worthy Doctor, as well as the Author of the great Point of Succession discussed, here deal with us like some crafty. Witnesses, who indeed speak the Truth, but not the whole Truth, if they find it will make against them. For the Doctor in the first Place conceals, and the nameless Author of the other Pamphlet, either wil­fully or ignorantly, positively denies, that King Alfred's three elder Brothers, who reigned before him, left any Issue Male; whereas it is most certain that two of them, if not all Three, left Sons behind them: for Athelm and Aethelwold, Vid. Testa­ment. Alfredi Regis. (to whom King Alfred by his Testament be­queaths divers Lands therein mentioned, under the Title of his Bro­ther's Sons) are supposed by the Learned Author of the Notes upon his Life, to have been the Children of King Ethelbald his eldest Bro­ther, [Page li] tho whether they were so or no I will not be so confident as to affirm. But that they were either the Sons of Ethelbald or Ethelbert is most certain, and consequently they ought to have reigned before him who was but their Uncle.

AS for King Ethelred, he had also two Sons if no more, viz. Alfred, supposed to be Grandfather to Elthelwerd the Historian, and Oswald, whom Mr. Speed, in the Reign of this King, says was a Witness to his Father's Charter to the Abbey of Abington: but the Author of the Notes to King Alfred's Life being convinced of this,Fol. 19. to solve an Ob­jection so directly contrary to the received Hypothesis of a Lineal Succes­sion, is feign to take refuge in a supposed Arbitrary Power the English-Saxon Kings had of disposing of their Kingdom as a Fee-Simple: which is such a Conceit, that if he would but have been pleased to put down the first seven or eight Lines of King Alfred's Testament, instead of that Scrap he has there given us of it, it would have sufficiently con­futed that Assertion. Therefore since he has been so fair as to give us this Testament at full length in the second Appendix to the said Life, I will make bold to transcribe so much as will be enough to evince the contrary, and leave the Reader to consult the rest at his leisure.

NOW I would gladly be satisfied from the Author abovementioned, in these three Points, if King Aethelwulf had full Power to bequeath the Kingdom to his Sons, and to turn it from a Fee-Simple into a Fee-Tail;

FIRST, Why K. Alfred in the very first Line of this Testament calls himself King of all West-Saxony by the Divine Donation, and the As­sent and Consent of the whole West-Saxon Nobility, if he had not been Elected, or at least Confirmed by them in the Possession of the Crown, so bequeathed to him by his Father?

SECONDLY, When he here summoned them to be Witnesses to the compleating and confirming of this his last Will, why he distin­guishes that private Inheritance which he had given him by the Grace of God, and the Favour and Bounty of his Nobility and People, from that publick Inheritance which his Father had bestowed on him and his two Brothers, so that the longest Liver of them should enjoy the whole Kingdom? But,

THIRDLY, if his Father's Testament alone could have given his Bro­thers and him an absolute Right to the Kingdom, how came it to pass that he stiles himself King by the Assistance of Arch-Bp Athelred, with the Assent and Consent of the whole West-Saxon Nobility? and what ne­cessity was there for him to summon them only to be Witnesses thereof, [Page lii] if their Confirmation were no ways necessary thereunto? I fear he will not be able to answer these Queries, unless he will grant that this last Will of King Alfred wanted as much their Confirmation, as that of his Father had done before.

‘AND this may be plainly proved, not only from the beginning of the Will it self, but also from an Agreement therein recited to have been made between the three Brothers abovementioned; by Virtue of which they dying, the whole Inheritance of King Ethelwolf his Fa­ther was devolved upon him by a certain Charter made in the Mycel Gemote, or General Council of the Kingdom, at Langdene; which being read before the Witnesses, (i.e. all the Estates) of all West-Saxony, they unanimously declared, that they knew of none who had a juster Title than himself.’ And yet you must not forget, that both his said elder Brothers had left Children behind them.

WHEREUPON the said Estates farther declared thus, Ecce jam habes tuam hereditatem iterum in Manibus tuis. Nunc de Bonis & Pos­sessionibus conde Testamentum tuum; lega, & dona tuo proximo sanguini vel Amicis tuis & Cognatis sicut tibi placuerit. To which the King re­plied, Et Omnes illi firmit [...]tem irrevocabilem mihi fecerunt, & subscrip­serunt, ipsos nunquam hereditatem meam alicui homini alitèr pervertendo daturos, praeterquam cui Egomet legabo die proximo jam instante.

FROM whence it is most evident, that it was to the Consent of the Estates of the Kingdom that King Alfred owed the Power of making this his last Will, and of bequeathing only the private Inheritance which his Father and Brothers had left him; and where, tho he dis­poses of the several Lands therein mentioned, first to his eldest Son Edward, then also to his younger Son, whom he does not name, and his two Nephews and others; yet he pretends to make no Bequest of the Crown, which one would think he would by no means have o­mitted, had he had any such unlimited Prerogative abstracted from the Consent of the Kingdom, to have disposed of, or entailed it, as his Father had done before him, tho not without or against the said Consent, to which it appears every one of his Predecessors chiefly owed his Title.

NOW give me leave to draw two Conclusions from the whole Will, which I have almost translated verbatim at the end of King Alfred's Life in the following History.

FIRST, That it was then indeed in the Power of the King to make his Will, and bequeath his Kingdom; but how? with the Consent and Assent of the Estates; and the Person or Persons to whom it was thus entailed, came in successively by virtue of such Designation: and there­fore De Gestis Alsredi. Asser very well and justly calls King Athelwolf's Will, Heredita­riam, vel Commendatoriam Epistolam, i. e. a recommendatory Letter to the Estates of the Kingdom to elect his Sons; but if no such Bequest was made, and so confirmed as aforesaid, then the Estates of the King­dom were at liberty to choose the Eldest Son, or next Brother or, Kins­man, if he were of fit Age and Capacity, for their Sovereign; nay, the King's Testament or Adoption preceding, a meer Stranger to the Royal Blood might be capable of succeeding, provided he also had the Election or Confirmation of the Great Council of the Kingdom, as I sup­pose Queen Sexburgha the Wife of King Cenwalch had; and as you will further find Harold, the Son of Harl Godwin, obtained, towards the end of this Volume.

[Page liii]SECONDLY, That the Person so designed was called the Heir of the preceding King, and enjoyed the Inheritance thus acquired Jure Haere­ditario, i. e. by Hereditary Right, tho he was not the next Heir in Blood to him that went before him, as is clearly manifest from this Testament it self, wherein King Alfred plainly distinguishes between the Dominions which he and his Brother King Ethered were to conquer, and those that came to him Jure Haereditario, i. e. by Hereditary Right, viz. by Vir­tue of his Father King Ethelwulf's Will; therefore when the Crown fell to King Alfred by virtue of that Entail, Abbot Ailred expresly says, ad Eum totum Regnum jure Haereditario transiit, De Genealog. Regum Ang. Col. 351. &c. And yet King Al­fred could not be Lineal Heir to his Brothers, since they both left Sons behind them, as hath been already observed.

AND in the same Sense King Edward the Confessor, in the Preface to his Charter to the Abbey of Westminster (which you may find at large in Monast. Anglican.) having recited the Miseries the Nation had under­gone from Wars raised by Strangers,1 Vol. pag. 59. which were to that extremity, Adeo ut pene periclitata sit haereditaria Regum Successio, magnúm (que) esset interstitium inter fratrem meum Edmundum, qui Patri meo successit, mé (que) habitum sit; invadentibus Regnum Sweyno, & Cnuto filio ejus, &c. where you may observe he calls his own Succession to his Brother, Hae­reditaria Successio; and yet his Brother left a Son behind him, who was Living when he was chosen King. Thus also Eadmerus relates, that Duke William claimed the Crown of England, Jure Haereditario, Hist. Ecclesi. pag. 5. from King Edward the Confessor's Testament; but certainly the Duke could have no pretence to it by Right of Blood, being no ways descended from the English-Saxon Kings.

SO that it is a manifest Errour in some of our Modern Writers of the Succession, who will needs understand these words, jus Haereditari­um, to have been used in the same Sense in those, as they have been taken in later Ages, since the Crown came to be claimed by a Li­neal Descent of Blood: But indeed Eadmerus his Sense of these words is most agreeable to the Civil Law, wherein he is called HAERES EXASSE; who comes in as Heir by Testament to the whole Inheritance, tho no way related to the Testator; for that Law describes an Heir thus, Haeredis significatione, omnes significari Successores, etsi verbis non expressi: And therefore our Bracton derives the word Haeres, ab Haere­ditamento; for says he, Inheritance is a Succession to all the Right which the Predecessor (he does not say Ancestor) enjoyed: from whence you may observe, that in Bracton's Time, this word Haeres was not even by our Law limited only to an Heir by Blood or Descent.

HAVING said thus much of our Saxon Kings Accession to the Throne, as far as King Alfred; I shall in the next Place proceed to give you the Succession of all the rest, down to the pretended Conquest, from the most Antient Authors who lived either a good while before, or else not long after that Time, before Men's Minds became prejudiced by those Notions of Lineal Succession, which began to be in Vogue about the Time of Edward the Third, when the Crown had descended from Father to Son for four Descents, tho not without somewhat that was tantamount to an Election in that Prince himself.

TO King Alfred succeeded his Son King Edward the Elder, who, not having the Crown bequeathed to him as his Father had, viz. by Will, [Page liv] confirmed by an Act of the Great Council, was fain to be Elected, as Ethelwerd expresly tells us in these words,Chron. Ethel­werdi. Lib. 3. Ca. 3. An. 901. Successor equidèm Monarchiae post filius supra memorati Regis coronatur, ipse Stemmate Regali, à Prima­tis ELECTVS Pentecostis in die: that is, afterwards Edward the Son of the abovementioned King, being Successor of the Monarchy, was Crowned; and being descended of the Blood Royal, was Elected by the Chief Men of the Kingdom on the day of Pentecost, (i. e. Whitsunday).

AFTER this Edward's Decease, Aethelstan his Son succeeded him, whom most Antient Writers, as well in Print as Manuscript, relate to have been begot of a Concubine, and therefore could have no Legal Right: and tho William of Malmesbury endeavours to palliate it, yet he is almost forced to confess it at last by saying, Sed Ipse praeter hanc No­tam (si tamen vera est) nihil ignobile habuit, i. e. that he had no other Mark of ill upon him but this, if it were true.

BUT tho Dr. Brady will have this Prince to have succeeded wholly by virtue of his Father's Will,Lib. 2. Cap. 6. and cites William of Malmesbury for it, who, he says, has these words in the History of Edward the Elder, Jussu Patris in Testamento Aethelstanus in Regem acclamatus est; by the Command of his Father, in his Will, Aethelstan was proclaimed King; yet he might have been so fair and ingenuous as to have given us the words that are in the very beginning of this Chapter in the same Au­thor, viz. Itá (que) magno Consensu Optimatum ibidèm Athelstanus ELEC­TVS, apud Regiam Villam quae vocatur Kingston Coronatus est; i. e. That thereupon by the General Consent of the Chief Men or Estates of the Kingdom, Athelstan being Elected, was Crowned at the Royal Town of Kingston: but this did not agree with the Doctor's Hypothesis, and so I suppose he thought it best to leave it out.

THIS Passage was borrowed by William of Malmesbury from a much Antienter Author, viz. the Compiler of the Saxon Annals, who under Anno 925. expresly tells us, That he was Electus in Regem, & apud Cingestune Consecratus, Elected King, and Anointed at Kingston: from both which it appears, that the Election and Consecration were then two different Actions.

AFTER Athelstan, succeeded Edmund his Brother, and indeed ought to have been King before him, he being Legitimate, whereas the other was only a Natural Son.

BUT he dying, and leaving two Sons behind him, Edwy and Edgar, neither of them, but Edred, King Edmund's younger Brother, was ad­vanced to the Throne; which how it could be done unless by Election, I confess I do not understand: and therefore this might be omitted as to this Prince, as well as the Coronation of King Edgar, and other of our English-Saxon Kings are both by our Annals and Antient Historians; for I must own I cannot find that the word Electus is used in his Advance­ment to the Throne: for Ethelwerd tells us expresly, ejus Successor extitit Eadred in Regnum, Ethelwerdi Histor. Cap. 7. suus quippe frater; that Eadred his Successor obtained the Kingdom, because he was his own Brother.

AND in this he is followed by Florence of Worcester, who expresses it thus, Edredus proximus haeres fratris succedens, Regnum suscepit; Edred succeeding as next Heir to his Brother, enjoyed the Kingdom.

Dr. Brady in his above-cited Treatise, will needs solve this open Breach of a Lineal Succession, by the Nonage of King Edmund's Sons, and the Nation's then being under great Difficulties. The former of these [Page lv] I grant to be a good Excuse, but as for the latter it was not at all true; since King Edmund, by subduing both Northumberland and Cumberland, driving the Danes out of the one, and delivering the other to the King of Scots, to be enjoyed as his Vassal, had thereby sufficiently settled the Peace of the Nation: so that let the Doctor take his choice, and either allow this King to have succeeded by Election, or else if by Succession, it was no Lineal one, as the Doctor would maintain, because these Hi­storians tell us, he succeeded his Brother as next Heir, when at the same time they confess too, that he left two Sons behind him; and if the Na­tion's lying then under great Difficulties, will be a good Warrant to set by a Right Heir, I desire he would be pleased to satisfy me, why it may not always be a justifiable Reason to make a Breach upon the Suc­cession in the like Cases?

AS for Edwy, Nephew to this King, indeed I do not find any thing mentioned in the Annals or other printed Authors of his Election; yet the Antient Manuscript Life of Arch-bishop Odo, now in the Otho. D. 12. Cottoni­an Library, and which seems to have been written by some Monk not long after that Time, says expresly, Edwigus Filius Aedmundi in Regem ELECTVS est. Nor indeed could he succeed as Heir to his Uncle, for his Lineal Right was before him: nor does the Expression commonly used in the Saxon Annals, viz. FENG to RICE, (which is rendered in the Latin by capessit Regnum) signify any thing concerning the manner of this or any other King's coming to the Crown. ‘These being,True and exact History of the Succession of the Crown, so. 3, 9. as the Doctor himself acknowledges, the usual Saxon and Latin words, by which the Succession is expressed, being variously rendered by Transla­tors, by Regnum capessit, successit, or Electus est: and thus we like­wise find the same words are used in the Annals to express King Aethel­stan's and Eadred's, nay Harold's Accession to the Throne, tho it is evi­dent none of them could claim by any Lineal Succession.’

AND these are not the only words made use of in the Saxon Chronicle when an Election is signified; for An. 1015, we find these words concern­ing the Election of K. Edmund Ironside, that the Wites or Wise Men who were at London, and the Citizens, Gecuron, Eadmund to Cynge, i. e. chose Edmund King. So likewise Anno 1036. concerning the Election of Harold Harefoot, that all the Thanes North of Thames, and the Seamen of London, Gecuron Harold, to rule over all England: the same word we also find Anno 1066. where after the words FENG to RICE abovementioned, these likewise follow, and eac men Hine haer to Gec [...] ­ron; i. e. all Men Elected him, viz. Harold, to the Crown.

AND that there may be no dispute about the meaning of this word Gecuron, we find it often used in these Annals for the Election of the Pope, as e. g. Anno 1054. upon the Death of Pope Leo, Victor waes gecuron to Papan. So likewise Anno 1057. upon the Death of Victor, waes Stephanus Gecoren to Papan; and I think the Doctor might with as much appearance of Truth have maintained, that the Saxon word Gecaron here rendred by the Latin Electus in these Annals, signified not the Election, but Re­cognition of the Pope; as to assert (as he does) with so much Con­fidence, that Eligerunt in all Historians signifies no more than Recogno­verunt, when used concerning our English Saxon Kings; i. e. the Sub­jects acknowledged, owned or submitted to him as their King,Vid. Exact Hi­story of the Suc­cession p. 7, 9. as he says concerning King Edgar and others.

[Page lvi]BUT King Edwy being cast off by the Mercians and Northumbers, our Annals inform us, that Eadgar Aetheling (FENG TO RICE, i. e.) succeeded to the Mercian Kingdom, which yet was no otherwise than by Election; for an Antient Manuscript Life of Arch-bishop Dunstan, written before the Conquest, and now in the Cleopatra. B. 13. Cottonian Library, shews us plainly, that both the Mercians and Northumbers Elected him for their King: the words are these, Hoc ità (que) Omnium Conspiratione relicto, eligêre sibi, Domino dictante, Eadgarum ejusdem Germanum in Regem; i. e. This King Edwy by the Consent of all Men being thus deserted, they chose, the Lord directing them, Eadgar his Brother for their King.

AND hereupon the Kingdom becoming divided between him and the King his Brother, that Division was also confirmed by a publick Act of the Estates, as the same Author testifies; Sic (que) Vniverso populo testante, Publica Res Regum ex Definitione Sagacium segregata est, ità ut famosum Flumen, Thamensis Regnum disterminavit Amborum; tunc Ed­garus à praedicto populo sic sortitus ad Regnum, &c. i. e. So that all the People being Witnesses, each of these King's shares were apportioned and set out by the Decree of the Wites or Wise Men; and the Noble River of Thames was the Boundary of both their Kingdoms; then Edgar was advanced to the Kingdom by the aforesaid People.

BUT Edwy dying not long after, the same Author relates of this Edgar, that Regnum illius velut aequus haeres ab utró (que) populo ELECTVS, suscepit; that is, that upon his Death Edgar as Right Heir being Elected both by Clergy and Laity, succeeded to his Kingdom.

FROM whence we may observe, that the same Person who is here called the Right Heir, yet needed an Election upon his Brother's Death to confirm his Title, and gain him an Admission to the Throne of the whole Kingdom; which is also confirmed by Florence of Worcester, whose Citation the Doctor himself here makes use of thus, Ab omni Anglorum populo Electus, Regnum suscepit; which shews that a new Election by all the People of England was necessary, tho he was King of part of it before.

AFTER the Death of King Edgar, our Historians tell us, there was a Contest between Prince Edward, and his Brother Ethelred, concerning their Succession to the Crown; which, says William of Malmesbury, was set on foot by Elfrida the Wife of King Edgar, and Mother-in-Law to Edward; which divers of our Authors tell us, was because those of her Faction pretended that Egelfrida, the Mother of Prince Edward, was never married to King Edgar; for otherwise there could have been no Colour why the elder Son should not be preferred before the Young­er, especially since he was also recommended by his Father's Will: and indeed it is left very much in the dark, whether the Lady last men­tioned were ever Edgar's lawful Wife or not: For the Annals, and more Antient Historians, are wholly silent in it; nor does any Wri­ter make mention of that Lady as King Edgar's Wife, till John of Wal­lingford, who lived in the Reign of King Henry the Third.

BUT be it as it will, whether Prince Edward was Legitimate or not, his Father however had left him (as Florence of Worcester says) Heir of his Kingdom, as well as of his Vertues; yet we also learn from Simeon of Durham, Sim. Dunelm. 975. that Quidam Regis filium Edwardum, Quidam illius fratrem eligerunt, Ethelredum; quam ob causam Archipraesules Dunstanus & Os­waldus cum Co-episcopis, Abbatibus, Ducibus (que) quamplurimis in unum [Page lvii] convenerunt, & Edwardum, ut pater ejus praeceperat, eligerunt, electum consecrarunt, & in Regem unxerunt. ‘Some Elected Edward the King's Son Edmund, some his Brother Ethelred; wherefore the Arch-Bishops, Dunstan and Oswald, with the Bishops, Abbots, and very many No­blemen being gathered together, Elected Edward, (as his Father had commanded) then Consecrated and Anointed him King.’

THIS shews it so plain from the Doctor's own Translation of the words, that Prince Edward (notwithstanding his Father's Will) was first Elected, and then Anointed King, that I needed not have added any further Remark to it, had he but faithfully rendred the Latin Text as he ought to have done; but he has unhappily left out one material small word, and that is Electum, that so the unwary Reader might not observe that those Kings were first Elected, before they could be Anointed.

BUT I have not yet done with this Prince, nor with the Doctor, for John of Tinmouth in his Historia A [...]rea (now in Manuscript in the Lambeth Library) tells the Story of this Election thus:

EDGARO Rege mortuo, & Edwardo ad Regnum relicto, dum quidam principes acquiescere nollent, Dunstanus arrepto Crucis Vexillo in medio constitit, Edwardum illis ostendit, elegit, sacravit; that is, King Edgar being Dead, and Edward left Heir of the Kingdom, whilst some of the Chief Men would not Consent to it, Arch-Bishop Dunstan taking up the Banner of the Cross, placed him in the midst, and shewing him to them, he Elected, and then Consecrated him.

SO that I will leave it to the impartial Reader to judg, whether these words Eligerunt and Electum, here signify no more than recognoverunt, ‘As the Doctor will have them, i. e. they acknowledged, owned, submitted unto him as their King, as his Father had commanded,True and exact History of the Succession, &c. Fol. 7. and by Will appointed, as the Doctor has been pleased to Paraphrase it.’ But I would advise him in the next Edition of this Treatise, or any o­ther he writes upon this Subject, to shew us an Example out of any Antient Roman Authors, nay, any Glossary of the more barbarous Ages, where the word Electus or Eligerunt, signifies Recognition.

FOR as to all his Instances out of his own Glossary at the end of his Introduction, instead of Presidents, I may boldly say they are only meer Cavils against the Right and Manner by which the Kings or Bishops he there mentions came to obtain their Thrones or Sees;Pag. 37. for that the Monks who wrote of them, ever meant by such their expressions that they were truly Elected, he himself cannot deny, which also proves the Falshood of that his Assertion, wherein he affirms, ‘That the old Monks said every one was ELECTED, that had not an HEREDI­TARY Title;Ibid pag. 38. and tho he was set up by the ART or VIOLENCE of a Faction, or obtained the Crown by Force and Arms without Ti­tle, yet according to them he was ELECTED, when as the PEOPLE only received and submitted unto them when they could not help it, and it may be because there was much Shouting, and many Accla­mations at his Reception.’

BUT I hope the Presidents I have here now given will evince the con­trary, since of all the Kings that have been already mentioned to have been Elected, I desire him to shew me one, concerning whom the word Election can mean no more than a bare Recognition or Acclamation of the People, when they first received and submitted to them; whereas in­deed [Page lviii] they were then solemn and deliberate Acts of Choice by the whole Estates of the Kingdom.

BUT since the Instances that the Doctor brings for this his Opinion are all after his Conquest, when he fancies the Nation totally subdued, and their Liberties lost; I shall reserve the Consideration of the Force of those Authorities till my Introduction before my next Volume, if God shall grant me Life to finish it.

BUT to return from whence some perhaps may think this too long a Digression.

KING Edward being murdered by the Instigation of his Mother, Ethelred his Brother succeeded him; and tho the Doctor again seems to put some stress on the words FENG to RICE, as if he had come in by Lineal Succession, yet that he was also Elected as well as his Brother, I desire he would consult the Antient Annals of the Monastery of Thor­ney in the Cottonian Library,Bibliothec. Cotton. Nero. cap. 7. great part of which is written in Saxon Letters, and either some time before, or else not long after the Con­quest, and there under Anno 978. he will find these words, Eadwardus Rex occiditur, Atheldredus eligitur, that King Edward was killed, and Ethelred Elected.

Id. sub. Effigie Claudii. A. 3.AND for a Proof of this, there is in the same Library the form of the Coronation of that King and his Queen, which hath these words in it.

AND for a farther Confirmation of the Truth of this Oath, there is also an Antient Saxon Copy of it, together with a Latin Version which differs but little from that now cited, and is said to be that Oath which Arch-Bishop Dunstan administred to this King at Kingston on the Day of his Coronation; at the end of which Oath it is also specified, that so long as the King observes it, he will thereby obtain both Earthly Glory, and also God's Mercy; so if he breaks it, he will still pass from bad to worse, as well in respect of himself, as People, unless he repent. This you will find printed both in Saxon and Latin, in the second Book of King Alfred's Life,Cleopatra. B. 13. printed at Oxford from an Antient Manuscript in the Cottonian Library.

[Page lix]I shall not trouble you with a verbal Translation of all this long Oath; only observe thus much, that hereby it appears plainly that King Ethelred had been before Elected by the Clergy and Laity, in order to be crowned King; which is further confirmed by that old Saxon imper­fect Ritual of the Coronation of the English Saxon Kings and Queens, part of which Mr. Selden hath given us in his Titles of Honour, Seld. Tit. Hon. pag. 116. where in the Prayer upon the Anointing we find these words, Respice propi­tius ad preces nostrae humilitatis, & super hunc famulum tuum illum quem supplici Devotione in Regem ANGLORUM vel SAXONUM pa­ritèr ELIGIMVS, Benedictionum tuarum Dona multiplica;Id. pag. 140. as also what follows in the same Chapter, in the Blessing after the Coronation, in giving him the Scepter. Benedic, Domine, hunc PRE-ELECTVM Prin­cipem, qui Regna omnium Regum à saeculo moderaris. Amen.

NOW from both these Places above quoted, we may safely conclude, that an Election did most commonly precede the Coronation of our English Saxon Kings; which I think is made so evident by these Au­thorities, that it needs no farther Enlargement; nor should I trou­ble my self about it were it not to expose the Obstinacy of some Men, as well as to continue the Series of this Succession (which perhaps would seem lame to others without it) down to the Conquest.

TO go on therefore where we left off, after the Death of King Ethel­red, the Saxon Annals tell us, that Omnes Proceres, qui in Londonia erant, & Cives, eligerunt Eadmundum in Regem, i. e. All the Chief Men, (or Witan, as it is in the Saxon, i. e. Wise Men) that were at London, and the Citizens, chose Edmund for their King; and yet he was his Fa­ther's eldest Son, tho whether Legitimate or not is uncertain: for we do not find any antient Author till after the Conquest, that men­tions Ethelred's being married to the Mother of this Prince; and if he was not, this Son of his could have no other Title but Election. This is also confirmed by Ingulph, who says, Cui (Ethelredo) successit in Reg­num, Londonensium & West-Saxonum Electione, Ingulph. fol. 507. b. lin. 5. Filius ejus primogenitus Edmundus, &c. i. e. Edmund his eldest Son succeeded his Father Ethel­red, by the Election of the Londoners and West-Saxons, in the King­dom.

BUT tho our Saxon Annals are silent of it, yet an Antient Manu­script Chronicle, wrote about the Time of the Conquest, now in the Cottonian Library, relates,Otho. D. 7. that about the same Time that King Ed­mund was thus Elected, Episcopi, Abbates, qui (que) Nobiliores Angliae Ca­nutum in Regem eligere, the Bishops, Abbots, and several of the Chief Men of England chose Cnute for their King; which is also confirmed by Florence of Worcester in these words under this very Year. Post cujus mortem maxima pars Regni tàm Clericorum quàm Laicorum in unum con­gregati, pari consensu Cnutonem in Regem eligerunt, & ad eum Suthampto­niam veniens pacem cum eo pepigerunt, & fidelitatem jurabant; i. e. after whose Death (viz. of King Ethelred) the greatest part of the King­dom, as well of the Clergy as Laity, being met together, chose Cnute for their King; and coming to Southampton made Peace with him, and swore Fidelity; but he there says nothing of his Coronation.

THESE Testimonies concerning Ethelred and Edmund being thus plain, I confess Dr. Brady has been so just as to cite them, and fairly to translate that Passage in Ingulph by the word Election, whereas it [Page lx] should have been Recognition, if it had suited with his Hypothesis; as he does also that of Florence of Worcester, rendring the word Eligerunt, by chose him King: if therefore it were a true Election in one case, then surely it must be so in the other, for the same Reason.

BUT the nameless Author of the Great Point of Succession discuss'd, tho he does wilfully conceal all the printed Authorities above menti­oned,Page 5. yet being hard press'd with this Passage of King Cnute, has no other way to evade it, but by saying, ‘That Canutus, by the Terror of his Arms, having the greatest part of the Island, at his Devotion, forced them to acknowledg and receive him for their King, which they being under an apparent Force, could not refuse to do.’

THE falseness of which Assertion I will not go about to prove in this Place, but refer the Reader to the ensuing History, where he will find that the Persons abovemention'd, were not so forced by the Ter­ror of his Arms, as to acknowledg him for their King, since London (then, as still) the Capital City of the Nation, with many others of the Nobility, had before Chosen King Edmund, who by their Assistance was strong enough immediately after his Election to fight the Danes at the great Battel at Assendune; and therefore if voluntarily, yet it was treacherously done of them, to quit the Prince who ought to have been Elected, and to choose a Stranger and an Invader over his Head: and whether the Gentleman this Author writes against, had ridiculously called King Cnute's Accession to the Throne an Election, as he would have it, I shall leave to the impartial Reader's Judgment.

AFTER the Death of King Cnute, our Annals relate, that at a Wi­tena-Gemot or Great Council being held at Oxford, Leofricus Comes, & omnes propè Thani à Boreali parte Thamisis, & Nautae de Lundonia eli­gerunt Haroldum in Regem totius Angliae, dum ejus Frater Hardcnutus esset in Denmearcia, i.e. Leofric the Earl, and almost all the Thanes North of the Thames, and the Sea-men of London, chose Harold King of all England, whilst his Brother Hardecnute was in Denmark; which is also confirmed by Fol. 509. a Line 2. Ingulph, and Lib. 2. c. 12. William of Malmesbury, who far­ther report, ‘That the English had a Mind to chuse Edward the Son of Ethelred, or at least Hardecnute the Son of Cnute by Emme his Wife, the Widow of King Ethelred, who was then in Denmark.’

BUT Henry of Huntington says expresly, Haroldus filius Cnuti in Re­gem Electus est. But Radulphus de Diceto is yet more express as to this Election of Harold, as appears by this Passage under An. 1038. Haroldus Rex Merciorum & Northymbrorum, ut per totam regnaret Angliam, à Principibus & omni Populo Eligitur, i. e. Harold King of the Mercians and Northumbers, that he might reign over all England, is Chosen by the chief Men and all the People: whence you may observe, that tho he were then King of the Mercians and Northumbers, yet that still needed a new Election to make him King of all England.

NOW if this were so, as the Doctor himself has ingenuously cited it in his said Treatise; I desire he would let us know, where was then the Right of Lineal Succession, when the People of England would fain have chosen Edward, who could not be Right Heir of the Crown so long as the Children of his Elder Brother were alive, tho then in Exile? nor could Hardecnute have any Right so long as Harold his Elder Brother was alive; whom also, as our Historians relate, his Father had appointed Successor at his Death, tho whether that be true or no, is much to be doubted.

[Page lxi]BUT the Author of the aforementioned Great Point of Succession, &c. (to evade this Proof of Harold's Election) will have all this Point in Controversy to have been, who had the most Right, and best Title to the Crown of those two, Harold or Hardecnute, and that Earl God­win objected Harold's Illegitimacy, and the Will of the deceased, King, of all which there is not one word mentioned in any of our most An­tient Historians, only he cites a Scrap in the Margin, as he thinks, ou [...] of Brompton, (but it should be Simeon of Durha [...], for no such thing is to be found in the former Author) viz. That Harold—quasi just us haeres coepit regnare, nec tamen ità potentèr ut Canutus, quia justior haeres expectabatur Hardicanutus, i. e. as just Heir, but yet not so abso­lutely as Cnute, because the juster Heir (S [...]il. H [...]rdecanute) was ex­pected, which he is pleased to call him, because he falsly supposes that none could have a Right to the Crown but one of Queen Emma's Chil­dren. But this Writer cunningly leaves out the preceding Words with a dash, because they make against him, which I shall here add, [...], consentientibus quamplurimis MAJORIBVS natu A [...]glia, quasi Justus haeres, &c. So that it seems his Right to reign, proceeded from the Con­sent of the Estates of the Kingdom.

SO that granting, as this Author supposes, That Hardecnute had been left Heir by his Father. King Cnute's Testament, yet you see this could only give him a Precedency of being first Proposed, and Elected.

HAROLD dying after a few Years Reign, Hardecnute was sent for out of Elanders to succeed him; yet this could not be as his Heir, being but of the half Blood, and his supposed Brother only by his Father's side: and therefore Henry of Huntington says expresly,Lib. 6. p. 365. that Post Mor­tem Harolds Hardecnute filius Regis Cnuti illicò susceptus est, & ELECTVS in Regeni ab Anglis, & DACIS, i. e. After the Death of Harold, Harde­cnute the Son of King Cnute was presently received, and Elected King by the English and Danes.

HARDECNVTE dying suddenly after, about two Years Reign, the abovecited Antient Chronicle in the Cottonian Library,Otho D. 7. proceeds to tell us, that Mortuo Hardecanuto, Eadwardus Annitentibus maximè Comite Godwino & Wigornensi Livingo, levatar Londoniae in Regem, i. e. that Hardecnute being dead, Edward by the Assistance chiefly of Earl Godwin, and Living Bishop of Worcester, was advanced to the Throne at London.

WILLIAM of Malmesbury words it thus, speaking of Earl Godwin, Lib. 2. cap. 13. Nec mora, congregato concilio Londoniae, rationibus suis explicitis; Regem effecit. From whence it appears, that by Godwin's means he was made King at a Common-Council of the Kingdom.

BUT Ingulph is yet more express, who says,Pag. 895. Post ejus (S [...]il. Harde­canuti) obitum, Omnium Electione in Edwardum concordatur, maximè cohortante Godwino Comite. i. e. that after the Death of Hardecnute, it was unanimously agreed upon to Elect Prince Edward; Earl Godwin chiefly advising it.

AND Henry Huntington goes yet a step higher, and writes thus, Edwardus cum paucis venit in Angliam,Lib. 6. p. 365. & Electus est in Regem ab omni populo. Prince Edward coming into England with but a few Men, was Elected King by all the People: which is also confirmed by an Antient Manuscript Chronicle of Thomas of Chesterton Canon of Litchfield, in the Cottonian Library, who under Anno 1042. says thus,Cleopatra. C. 3. Edwar­dus [Page lxii] filius Athelredi Regis, ab omni Populo in Regem Electus, & Consecra­tus est.

BUT the Doctor very cunningly conceals all this concerning his E­lection,Lib. 6. cap. 9. and only gives us a shred out of Guilielmus Gemeticensis in these words, Hardecanutus Edwardum totius Regni reliquit haeredem; that is, left Edward Heir of the whole Kingdom: but so far indeed the Doctor is in the Right,Page 8. ‘That he could be no other than a Testamentary Heir, there being other Heirs of the Right Line, both of Saxon and Danish Blood before him.’ But it may well be doubted, whether the Author last mentioned, being a Foreigner, may not be mistaken, if he means the words haeredem reliquit, for a Bequest by Will, since no English Histo­rian that I know of mentions any such thing: and indeed it is highly im­probable that this Prince made any Will at all, since all Writers agree that he died suddenly at a Drunken Feast, in the very Flower of his Age; and as it is not likely he made any Will before, so it was impossible he could do it at his Death.

BUT this Election of King Edward farther appears, from the mean and abject Carriage which this Prince shewed, (as you will find Wil­liam of Malmesbury) towards Earl Godwin, when he was so far from claiming the Crown, that he only desired he would save his Life, till the Earl encouraging him, put him in hopes of obtaining the Kingdom upon Promise of marrying his Daughter; which he would never have done, had he had so [...]air a Pretence as the last Will of his Bro­ther Hardecnute to recommended him to the favour of the Estates of the Kingdom; and if that alone would have done, to what purpose should he need afterwards to be Elected?

‘THIS is in part acknowledged by the Doctor; but to palliate it, he will have Godwin, (a Council being immediately called) by his Reason and Rhetorick to make him King; (it seems then he was to be made so) but he dares not say one word of his Election, for fear it would be­tray the Cause which he has so strenuously laboured to advance.’

AND therefore he thinks he has now nothing more to do, but to expose and ridicule the Legend of the Abbot of Rievalle in making Edwards the Confessor to be elected King in his Mother's Womb: which tho I grant to be as absurd as to drink Prince of Wales his Health before he is born, yet the Abbot had certainly no ground for this Story, unless he had been sufficiently convinced that this was an Elective Kingdom in the Time of King Ethelred his Father.

BUT if the Reader desires further Satisfaction concerning the Cir­cumstances of this King's Election, I shall refer him to the Antient An­nals of the Church of Winchester, which I have faithfully transcribed out of the first Volume of Monasticon Anglicanum, and inserted into this Volume under Anno 1041. where he will find the whole History of this Prince's Election and Coronation, written by a Monk of that Church not long after the Conquest; these Annals are also in Manuscript in the Cottonian Library, to which I must likewise by the Favour of its ho­nourable Possessor, own my self highly obliged for several considerable Remarks in this History of the Succession of our Saxon Kings.

BUT to draw to a Conclusion upon this Subject; King Edward (as appears by our Annals) in the Year 957, sent over for his Cousin Prince Edward, Col. 189. n. 20. sirnamed the Out-Law, Son of King Edmund, out of Hungary, as Simeon of Durham relates, Illum se Regni haeredem constituere, that [Page lxiii] he might appoint him Heir of the Kingdom: which had been a very idle Thing had the Kingdom been Hereditary, and that it had been his undoubted Right by Proximity of Blood.

THIS Prince dying soon after his coming over, we no where find, that King Edward ever offered to do the like for his Cousin Edgar Athe­ling; but on the contrary forgetting his own Family, Ingulph tells us, that the Year before his Death,Fo. 512. n. 40. he sent Robert Arch-Bp of Canterbury his Ambassadour, to let William Duke of Normandy know, Illum designa­tum esse sui Regni successorem, that he had appointed him Heir of his Kingdom: which relation tho I have proved to be false as to Arch-bi­shop Robert, towards the end of this ensuing History; yet might it be true in the main, and some other Bishop might have gone over to Duke William on that Message; but however, for all this, King Edward after­wards adopted Earl Harold upon his Death-bed, for which we have very good Authority, since our Saxon Annals testify it in these words,Page 172. Tunc Haroldus Comes capessit Regnum, sicut Rex ei concesserat, omnés (que) ad id Eum eligebant, & consecratus est in Regem in Festo Epiphaniae, which was the same day that King Edward was Buried.

THIS is also confirmed by the History of the Abby of Ely, writ­ten not long after the Conquest, and lately published by the Learned Dr. Gale, Quo (Scil. Edwardo) tumulato, Lib. 2. cap. 43. fol. 515. subregulus Haraldus Godwini Ducis Filius, quem Rex antè suam Decessionem Regni Successorem eligerat, à totius Angliae Primatibus ad Regale Culmen ELECTVS est, Die eodem ab Aldredo Eboracensi Archiepiscopo in Regem honorificè consecratus; which also agrees with Florence of Worcester, and Simeon of Durham under Anno 1066. almost in the very same words,Page 5. and by Eadmerus (who lived not long after the Conquest) in these words, Juxtà quod Edwardus ante mortem statuerat, successit HARALDVS.

FROM all which remarkable Testimonies I shall draw these two Conclusions.

FIRST, That this Testamentary Designation of Harold by King Edward for his Heir, was not sufficient alone to make him King, but it also required a subsequent Election of the Estates of the Kingdom.

SECONDLY, That there is an apparent Distinction here made be­tween his Election and Consecration.

AND I think this enough, had I no more to say, to settle this Point; but to let the Reader know the utmost that may be objected against these Authorities, I must freely confess, that divers Writers of good Credit and Reputation, who lived after the Conquest, viz. Ingulph of Croyland, William of Malmesbury, Ailred Abbot of Rievalle, and Henry of Huntington, look upon this Donation of King Edward as a meer Pretence, invented by the English in Prejudice of the Norman Duke.

BUT how they will be able to answer those plain and full Authori­ties I have before cited, I know not: for William of Malmesbury him­self was also forced to confess, that King Harold claimed not only by virtue of Edward's Designation, but by the Election of the Great Coun­cil of the Kingdom, as appears by this Memorable Passage,VVill. Malmesbur. de Gestis An­glorum Lib. 2. Fol. [...]5. viz. Ille (scilicet Haraldus) in his Answer to William then Duke of Normandy, de puellae nuptiis referens, de Regno (addebat) praesumptuosum fuisse, quod abs (que) generali Senatûs & Populi Conventu & Edicto, alienam illi haereditatem juraverit, i. e. ‘That Harold, speaking of the Mar­riage [Page lxiv] of the Duke's Sister, further added, that it was a very pre­sumptuous thing to swear away another's Inheritance to him, with­out the General Act and Appointment of the Senate and People, that is, the Nobility and Commons.’

THIS shews, that it would have been a most notorious Falshood for Harold thus to have gone about to impose upon Duke William, had there never been any such thing as a Real and Solemn Election, which our abovementioned Authors have related.

Dr. Brady's Answer to Ar­gum. Antinor­man. fol. 238.NOR is Dr. Brady's Objection against this at all material, in saying, that those who thus set him up, were only a Court Faction, for the Peo­ple all England over could never have notice to come to, or send their Re­presentatives to such a Solemnity, as to elect and crown him King in four and twenty Hour's Time; and therefore should his Election be granted, he could not be chosen by the People, who had neither Notice nor Know­ledg of it, but only received and submitted to him as their King.

NOW in answer to this I need only say, that if the Doctor would have been so fair as to have consulted Sir Henry Spelman's first Volume of Councils, or the first Volume of Monasticon Anglicanum, he would have found in both of them, (in the Charters of the Foundation of the Abby of Westminster, and the History of that Church printed in the Latter) that it was not (as he says) never to have been imagined; for it was really true, that the Estates of the Kingdom did meet a little before Christmass, (secundùm Morem, according to Custom) and not only so, but were expresly summoned to be present at the Great Solemnity of the Consecration of that Abbey, which was, as our Annals inform us, on St. Innocent's day, and the King dying on the Twefth-day following, this Great Council (which certainly was a full one) was so far from be­ing then Dissolved, that it chose Harold for their succeeding King, as the said Annals relate: The nicety of the Dissolution of a Parliament upon the King's Decease not being at that time known.

I think this is sufficient to answer all that the Doctor has, or I sup­pose can say upon this Head; therefore I will now leave it to the Reader to consider, how far any of his Assertions are true.

AS first, ‘Whether the sure Rule of Succession was either Right of Blood?’ True and exact History of the Succession, Fol. 7.

OR Secondly, ‘Whether the bare Nomination or Appointment of the preceding King, was then thought and allowed as Cause suffici­ent for the Father to prefer his Brother's Son before his own, or a Bastard before his Lawful Issue, or that the Instances which he hath produced will be able to make it out; or else whether those very In­stances, which I have here set in their true Light, do not directly evince the contrary?’

THIRDLY, Whether from this foregoing History of the Succession, it appears also to be true what he asserts, viz. ‘That from Egbert the first Saxon Monarch,Id. Fol. 9. to Ethelred the last by Right of Blood, we do not read of many Elections for the space of two hundred and sixteen Years; and that those we meet with are bound and limited by Proxi­mity of Blood, or Nomination of the Successor by the Predeces­sor, and that where the word Election or any thing in that Sense is used, it signifies only a Recognition and Submission?’ And I will now leave it to the Reader's Judgment, if I have not given sufficient Instances to the contrary in every one of these Particulars, there being [Page lxv] not above two Kings in all this long Series of more than two hundred and sixty Years, concerning whom I have not brought express Testi­monies from Authors of undoubted Credit both in Print and Manu­script, of their Election by the Estates of the Kingdom. Or,

FOURTHLY, Whether his last Assertion be any truer than the former, viz. ‘That the Danish Kings,Id. ibid. after Sweyn had conquered the Kingdom, (whose best Title was the Sword) either brought hither the Custom of the Predecessor, naming or giving the Kingdom to the Successor, as probably it might have been practised in their own Kingdoms, or used it as they found it here practised by the Saxon Kings?’ Or whether the Authorities I have already cited do not ex­presly prove, that every one of the three Danish Kings came in by E­lection, and that Harold Harefoot was the only Prince of those Three, who could make any pretence to it by Testament?

AND as for the Saxon Kings that reigned before them, how far they by their last Wills alone could dispose of, or entail the Crown, with­out the concurrent Assent and Consent of the Great Council of the Kingdom, I refer the Reader to that part of King Alfred's Will, I have here made use of for his farther Satisfaction, if he have still any doubt left about it.

I have now dispatched this exact and faithful History of the Suc­cession of our English Saxon Kings, in which I am not conscious to my self that I have either added or diminished any thing material to, or from the Authors which I have made use of; I desire to be believed that I have not wrote this to prove, that the Succession to the Crown ought at this day to be Elective in the same manner as it was before the Conquest, but only to obviate and remove the false Opinions or Prejudices of some Men, who by the plausible Representations of the Doctor and others, have been so far prepossessed as to believe, that an Hereditary Succession to the Crown hath been as Antient as the Monarchy it self; whereas we find that Sweden and Denmark have from Elective become Hereditary Kingdoms in a much less space of Time: And I suppose no Man of those Countries would asperse any Writer there, of being an Enemy to Monarchy for asserting so evident a Truth; and therefore I hope I may find the same fair Quarter at Home, notwith­standing the Doctor's Insinuations before his abovecited History of the Succession of the Crown, That none but Papists, Fanaticks, or Common-Wealth's Men, (a List of whose, Works he there gives us) would dare to write for, or maintain this Opinion. But if Parsons the Jesuit has hap­pened in his Discourse of the Succession, to write some Truths concern­ing it, I am no more to be thought Jesuitical for following (not him, but) the Authors from whom he took them; than I should be if I had wrote a Mathematical Dissertation founded upon Demonstrations from Euclid, which had been before made use of by Tacquet, or any other Learned Jesuit, that has wrote upon that Subject.

AFTER the Election, I shall say somewhat of the Coronation of our English Saxon Kings, which sometimes was performed on the same Day on which they were Elected, and sometimes several Days, nay, Months after, as appears by the Coronation of King Edward the Confessor; who tho he were Chosen King in June not long after his Brother Hardecnut's Decease, yet was he not Crowned till the Easter [Page lxvi] following, as you will find in the Saxon Annals under the Years 1041, 1042. But Harold his Successor (to make the Crown the surer) was Elected and Crowned the same Day. This Solemnity of the Corona­tion, was most commonly performed by the Arch-Bishop of Canterbury, yet was it not at first done in the Church, but in the open Air; thus the Kings Athelstan, Edmund, and Edred, are expresly mentioned by our Historians to have been Crowned in the Market Place of Kingston upon Thames: and I suppose the like had been used in the Coronation of former Kings, since it is not taken notice of as an Innovation.

BUT to say somewhat of the forms of those Crowns which our Kings then wore, it appears from their Coins that they were at first no other than Diadems like those of the Greek Emperors in that Age, and from whom they were borrowed: thus Offa King of the Mercians is Graven on his Coin with a Diadem of Pearls about his Head;Vid. Ante Vitam Ael­fred. R. Tab. 4. & ante Camden. Bri­tan. Tab. but our great King Alfred has no more than a bare Head-band, or Circle, which seems to have been tied behind, as you may see in his Coins. And tho I confess there is also a Coin of one K. Egbert with a Coronet of Rayes upon his Head; yet that this was not of our K. Egbert, but ra­ther of him that was King of Northumberland, who began to reign An. 867, I rather incline to believe. As for King Edward the Elder, he has in his Coins only a kind of Diadem upon his Helmet, King Athel­stàn, Edmund and Eadred his Brothers being the first of our West-Sax­on Kings, who wore Crowns with three Rayes, or Points higher than the rest; and therefore I look upon it as a Fiction in them who will needs have it, that K. Alfred was Crowned with a Crown wrought with Flow­er de Lices; because such a Crown was kept among the Regalia at West­minster before our late Civil Wars, in a Box, upon whose Cover was this Inscription,Vid. Vitam Aelfredi. pag. 158. Haec est Principalior Corona cum qua Coronabantur Reges, Aelfredus, Edwardus, &c. Which having been the Crown of Edward the Confessor, it was very easy for the Monks of that Church who kept those Regalia in after times, to inscribe what they pleased upon this Box, since it added so much to the Antiquity and Reputation of this Crown: and I am the more inclined to this Opinion, because I find King Cnute, and Edward the Confessor, to be the first Kings who wore Diadems adorned with Flower-de-Lices, as appears by their Coins.

I shall in the next Place say somewhat of the Titles by which our West-Saxon Kings stiled themselves in their Laws and Charters; and to begin with King Egbert, (however Supreme he were over all the rest of the Kings then reigning in England, yet we cannot find that he stiled himself more than, Rex West-Saxonum in any of his Charters; for as for Laws we have none of his left us. The like I may say for his Succes­sors Ethelwolf, and his Sons and Grandsons, as far as King Athelstan, who for ought I can find was the first Prince that upon his Victories over the Danes and Scots, changed his Title of Rex West-Saxonum, or Anglorum alone, which was used by his Predecessors, to this that follows, Ego Aethelstanus Rex Anglorum, per omnipotentis Dextram totius Britanniae Regno sublimatus, as you will find it in his Charter in William of Malmes­bury, de Gestis Pontif. as also in the same Place you will find this King's Title to have somewhat varied;Li [...]. 4. pag. 363.364. pub­ [...]h'd by Dr. Gale. for on a rich Box, or Shrine, given by this King to keep the Relicts of the Saints in, was engraven this Inscrip­tion, Ego Aethelstanus totius Britanniae & multarum nationum in circuitu [Page lxvii] positarum Imperator, &c. which Title was also made use of by his Bro­ther King Edmund, only instead of Imperator, he stiles himself Guber­nator & Rector, as appears by his Charter to the Church of Glastonbury, set down by the same Author above-mentioned, in his Pag. 318. published in the same Vol. by Dr. Gale. Antiquity of the Church of Glastonbury, which was also used by King Edgar, tho with some difference, who instead of Rector & Rex, stiled himself totius Albionis Basileus in divers Charters; but this proceeded from the corrupt Stile of that Time, or else the particular Fancy of the Clerk or Monk who drew the Charter: And tho instead of this word Basileus, King Ethelred his Son again made use of Rex, yet the rest of the Title remained the same, and was also continued by King Knut; however he sometimes stiled himself Rex totius Albionis Insulae, & aliarum Nationum plurimarum. What Titles his Sons had I do not find, because I have not seen any of their Charters; only we may here observe, that several Kings before Cnute, stiled themselves Kings not only of Albion, or Britain, but of several other Nations round about, by which could only be meant that Superiority they assumed at that time over the Kings of Scotland, Wales and Northumberland, before that Country was reduced into the form of a Province, and was governed by Earls.

I now come, in the next place, to give you an Account of the chief Powers and Prerogatives of our English-Saxon Kings; some of which I find set down in our Saxon Annals at the end of the Year 693, at the Council of Becanceld, where the Arch-bishop of Canterbury thus defines them in his Decree at the Conclusion of that Council. Regum est, says he, constituere Comites, Duces, Vice-Comites, & Judites; it is the Office of Kings to constitute Earls, Ealdormen, Sheriffs and Judges.

TO which we may also add the Power of Coining Money, which being then the Prerogative of the Crown, was granted by Charter to the Arch-bishops of Canterbury and York, as likewise to the Abbots of Medeshamsted or Peterborough, and to several other Abbies; as may be seen in Monasticon Anglicanum, as well as in the Annals themselves. Some In­stances of which I have given you in the ensuing History, not omitting some of the Coins which are still preserved in Cabinets, some of whose Figures are to be found in the Collection of Saxon Coins before King Al­fred's Life, as also before the new Edition of Camden's Britannia.

BUT that any of those Kings had Power by their own Royal Pre­rogative, to enhance or debase the intrinsick Value of the Money, coined either in their own or other Mints, I can no ways believe, since such a Prerogative would have highly tended to the Loss and Defrauding of the Subject, for which that Power was never designed; nor do I find our Kings ever assumed this Prerogative to themselves, till later Ages. And in Confirmation of this the Sect. 3. Mirror of Justices recites it as an old Law of the Saxon Times, that no King of this Realm could change, embase, or enhance his Money, or make other Coin than of Silver, san's l'assent de touts ses Counties, i. e. without the Assent of Parliament; as Sir Edward Coke in his second Institutes, hath on very good grounds interpreted this Expression, in that Author Andrew Horne, Artic. super Chartas, cap. 20. p. 576. who lived in the Reign of King Edward I.

TO these we may further add, that of pardoning Offendors their Lives in several Cases, such as striking in the King's Palace, &c. which he might also take in Case of Homicides; but still reserving the Wiregilds, [Page lxviii] or Compensations that were to be made to the Friends or Relations of the Parties slain, which it was not in his Power to release, as ap­pears by several Passages in our Saxon Laws, some of which I have in­serted in this Volume; whence, I suppose, are derived the Appeals of the Wife, Son, or Brother, in Cases of Murder at this day.

BUT as for the Power of making War or Peace, since I find little said of it in our Histories, I shall not be positive in asserting any thing concerning it: only shall observe, that in every Peace made by the King upon Payment of Money, the Consent of the Estates of the Kingdom was required; for Taxes could not be raised without it, as you will find in our Annals under the Years 994, 1002, 1006, 1011, when that extraordinary Tax of Danegelt was raised to be paid to the Danes for purchasing a Peace of them. And as for the Power of making Foreign War, that could also signify little, since those Kings had not the Prerogative of raising Money without the Consent of their People, any more than our Kings have at this day: nor were their Re­venues so much in Money, as in Provisions for their Houshold.

NOR can I omit here taking notice, that the English Saxon Kings wanted one great Prerogative, which ours exercise at this day, viz. the power of granting away the Demesnes of the Crown, even to pious Uses, without the Consent to the great Council of their Kingdoms: and of this we find a remarkable Instance in Sir H. Spelman's first Vol. of Councils,Pag. 340. where Baldred King of Kent had given the Mannor of Mallings to Christ-Church in Canterbury; but because the chief Men of his Kingdom (i. e. the Great Council) had not consented to it, it was revoked until K. Egbert afterwards by the Consent of his WITTENA GEMOT made a new Grant thereof: and this was also the reason why the Foundations and Infeodations of Abbies were always confirmed and attested by all the Estates as well Spiritual as Temporal, as you will find by most of their Charters in Monast. Anglican. of which I have inserted some Ex­amples in the History it self; so that I shall leave it to the Reader's Consideration, whether those Princes that could not dispose of their Crown-Lands without the Consent of the Great Council of the King­dom, could without the like Consent dispose of the Crown it self as they pleased, as Dr. Brady in his Pag. 7, 8. History of the Succession, &c. asserts, tho without any just Grounds, as hath been already proved.

BUT those Kings great Prerogative chiefly consisted in giving their Sanction to all Laws that were made, as well relating to Civil as Ecclesiastical Matters, that did not concern Doctrines of Faith: but this is still to be so understood, that this Prerogative could never be exerted without the Advice and Consent of the Mycel-Gemot, or Great Council of the Realm; at which, tho they were often first drawn up into Form, and then proposed by the King, yet was their Authority also necessary for the enacting of those Laws, without which they could no ways oblige the Subject, as shall be further shewn towards the end of this Discourse.

BUT since I have given you so large an Account how our Kings then obtained the Crown, it may perhaps be expected I should say some­what now concerning the manner of their losing it, sometimes by other ways than Death.

IN order to this I desire the Reader would observe, that not only in England, but in all the Kingdoms of Europe, that were raised upon the [Page lxix] Ruins of the Roman Empire after the Gothic Model, the same mix'd manner of Succession, partly by Testament, partly by Election, did in those days chiefly prevail: Of which Monsieur Mezeray himself is so sensible, that in his Abridgment of the At the end of the Reign of K. Clotair II. tit. Moeurs & Constumes. History of France, he freely owns, ‘That during the Kings of the first Race, they were still chosen out of the Royal Family; but that there were three Conditions re­quired to it. (1.) Birth, (thô whether they were legitimate or no it matter'd not). (2.) The last Will of the Father. (3.) The Con­sent of the Great Men, or Estates of the Kingdom; and the last of these (says he) almost ever followed the two former.’ Moreover, that in all those Kingdoms, where this way of Election was in use, their Kings were so far from being absolute Monarchs, that they were ac­countable for their Tyranny, or Male-Administration, to the Estates of the Kingdom, and were by them liable to be deposed for the same: Of which (were it to my present purpose) I could give you frequent Ex­amples, not only in Denmark and Sweden, in both which Kingdoms that Law was in force till within this last Century, when they became suc­cessive in a Lineal Descent, by an Act of all the Estates; but also in Castile and Arragon, and even in that of France it self (as much as she takes upon her to be Absolute at this day): and for the Proof of this I shall refer you to any French History. Those famous Examples of the last Childerick's being Deposed by the great Council, or Assembly of the Estates of France, who elected Pepin King in his room; and also their setting aside Charles Duke of Lorrain, tho the undoubted Heir of the Crown by Blood, only for his supposed Enmity to the French Nation, and their choosing Hugh Capet for their King, from whom all the Kings of France from that time have been (so far as we know) lineally descended, renders this a Truth too notorious to be denied.

THIS I have here mentioned, that so you may not wonder if in the ensuing History you meet with divers Examples of the English Saxons deposing their Kings; since the same Custom did in those Ages prevail in all those Kingdoms, as a part of their Original Constitution.

AND for farther Proof of this, tho I could bring several Instances from the Mercians and Northumbers, yet because the latter were look'd upon as of a Rebellious Disposition against their Princes; and for the former it may be said, that those they expelled were Usurpers, and not lawful Kings; I shall therefore content my self with mentioning but two Examples concerning our West-Saxon Kings, which you will find hereafter more at large: The first is that of Sigebert, who (as the Saxon Annals inform us Anno 752.) for his unryhtum Daedum, i.e. illegal Practices, or (as Hen. Huntington paraphrases it) for his Oppression, and wresting the Laws to his own Advantage, was by all the Wites, or Wise and Great Men of West-Saxony, deprived of his Kingdom, and Cenwolf his Kinsman was by them elected in his room. Vid. Hoveden, pars p [...] or, p. 42 [...]. The next is that of King Edwy, who for his loose and irregular Life (tho chiefly for perse­cuting the Monks) being cast off or deposed by the Mercians and Nor­thumbers, his Brother Edgar was chosen to succeed him; but yet the Kingdom was divided, and Edwy had only West-Saxony for his share. And both this Deposition and Division were confirmed by an Act of the Estates of the whole Kingdom, as I have already shewn.

BUT whether this was lawfully and rightfully done for any real Breach of their Original Contract, it is none of my Business here to decide; [Page lxx] it is sufficient to shew, that the Estates of those Countries then judged so; not that I maintain the Law is, or ought to be so at this day; but that it was so before the Conquest, pray consider this Law, which tho found among those that go under the Title of Edward the Confessor, yet was certainly much more Antient, as containing not only the Office of an English King, but what he was to suffer in case he omitted that Duty: I shall give it you from the Latin Original in Pag. 345. Hoveden and Pag. 138. Lambard, in these words, Rex qui est vicarius summi Regis, ad haec est constitutus, ut Regnum terrenum, & Populum Domini, & super omnia sanctam veneretur ejus Ecclesiam, & regat, & ab injuriosis defendat, & maleficos ab ea evellat, & destruat, & penitùs disperdat; Quod nisi fecerit, nec Regis Nomen in eo constabit, i.e. not so much as the Name of a King shall remain to him. Here you see not only the Substance of this Original Contract, but also the Penalty annex'd to it, if it were broken.

AND that there was such a thing as an Original Compact or Contract between the People of England and the Ancestors of those Kings, ac­cording to which they were to govern, and upon the non-performance of which, they were liable to forfeit or lose their Crowns, I think may farther be proved, tho what the particular Heads of it were we cannot now exactly tell, unless they were those mentioned in the Oath, recited in the Mirror at the Election of the first Saxon Sovereign, (whe­ther he were Egbert, or any other) which indeed amounts to a Con­tract; but there was also a Compact of the like Nature in the Kingdom of the West-Saxons before King Egbert's Time as well as after; for how else could the Great Council of the Kingdom proceed against King Sigebert or Edwy, if there had not been then some known Laws or Constitutions, upon the Violation of which they were judged unca­pable to govern any longer? And tho the chief Heads of that Contract may have been comprized in King Ethelred's Coronation-Oath, which I have already given you; [the first Article of which is, to preserve the Holy Church, and all Christian People in true Peace at all Times; the second, To restrain all Violence and Injustice in all sorts of People, (which comprehends any raising of Taxes by the King's Officers con­trary to Law); and the third, To observe Equity and Mercy in all his Judgments, by which the King is withheld from taking away any of his Subjects Lives arbitrarily, as also from pardoning notorious Offenders against the State at his meer Pleasure; so that the Religion, Estates and Lives of his People were by this Oath well secured:] I say, tho these are the chief Heads of this Contract, yet that this was much more An­tient than the Ceremony of a Coronation, may appear from hence.

THAT Kingly Government is this Island was never Absolute nor Despotical, but always limited by Laws; and if limited, then those Laws must have been the Bounds or Conditions of that Limitation; and if there was from the beginning, or first Institution of the Govern­ment, a constant certain great Council ordained, whose Business it was to observe, that the King did not transgress the due Bounds of his Power; that Council (so long as the Kingdom continued Elective) had likewise Authority to call him to Account for his Male-Administra­tion.

BUT since the Preaching of Christianity did no ways alter the Ori­ginal Constitution of Government in all those seven Kingdoms above-mentioned, it follows, that there must have been an Original Contract [Page lxxi] precedent to the entrance of that Religion: And it did not commence from the Coronation of our Kings, as some have imagined, and conse­quently from their taking an Oath at that Time to observe the Laws of the Kingdom; because both the one and the other was much later than the Preaching of the Gospel it self: for this Ceremony of a Coronati­on, as Mr. Selden learnedly proves,Seld. Tit. Ho [...]. c. 8. so. 131. began no earlier in the West than with Charles the Great, his receiving his Imperial Crown from the Hands of the Pope; and this Ceremony he also shews us, was bor­rowed from the Greek Emperors, who about Justinian, or his Successor Justin's Time,Ibid. fol. 110. first introduced their Unction and Coronation by the Patriarch of Constantinople, as he there makes out from a Passage of the Learned Onuphrius in these words,De Comitiis Imperatoriis c. 2. Constantinopoli vel sub Justinia­no, vel post ejus statìm Obitum, Electioni Imperatoris additum, ut quam primùm Imperator renuntiatus esset, à Patriarchâ Constantinopolitano in magna Bizantii Basilica Oleo Unctus, Diademate Aureo redimeretur.

AND therefore what we find in our Saxon Chronicles, or any other Historians, concerning the Coronation of our English Saxon Kings, must all of them have commenced since that Time.

NOW the Emperor Charles's Coronation above mentioned, falling out in the Year 800, it is plain that the Coronation of our Kings could not be antienter than that Time, which was near 450 Years after the Arrival of the Saxons in England, and settling Kingly Government here, and above 200 Years after the Preaching of Christianity; so that this Coronation Oath seems to have been only a constant Renovation or Confirmation of this Original Contract, at every new King's first Accession to the Throne, and must have had (if at all) its Original long before that Time.

AND this also appears from the Instance of King Sigebert above­mentioned, who was deprived of his Kingdom for the Breach of this Contract, above forty Years before there was either any Emperor or King formally Crowned in these Western parts of Europe.

TO all which we may farther add, that if our Annals and Histori­ans may be credited, it does not appear that several of our Danish Kings, tho they were solemnly Elected, were ever Crowned at all: For as for King Cnute, whose Election is mentioned in Florence of Wor­cester, and other Authors, to have been by many of the Bishops and No­bility at Southampton, Anno Dom. 1015. yet are they all (except Abbot Brompton's Chronicle, which relates, that he was Crowned by Living A.Bp of Canterbury) silent as to his Coronation, only that upon their swear­ing Fealty to him, it is said he likewise swore to them, Quod secundùm Deum & seculum, fidelis esset eis Dominus, i.e. that according to the Laws of God and Man, he would be a faithful Lord to them. So likewise af­ter the Death of Edmund Ironside, the Author of Encomium Emmae, says ex­presly, that he was Elected King by the whole English Nation; but that he was not admitted without a new Compact, both Florence and Roger Hovenden inform us in these words, viz. That when they had a­gain accepted of him for their King, and had sworn Fealty to him; he likewise again pledged his Faith to them in this Form, Accepto pig­nore de manu, sua nuda, cum juramentis à Principibus Danorum, i. e. they received a Pledg or Promise from his bare or naked Hand, together with the Oaths given by the chief Men of the Danes; who it seems swore on the King's behalf, that he would observe the Conditions he had made before with them.

[Page lxxii]BUT as for the Coronation of his Son Harold Harefoot, that is ex­presly denied by the said Author of Encomium Emmae; for he says that Elnoth (or Agelnoth) Arch-bishop of Canterbury flatly refused to crown him, because he said he had taken an Oath not to anoint him King so long as the Children of Queen Emma were alive; and that laying down the Crown and Scepter upon the High Altar, he straitly forbad all the Bishops to crown Harold, which so incensed him, that he thenceforth despised his Episcopal Benediction.

BUT whether this Author (who yet lived in that very Time) might not write this out of Hatred to Harold's Memory, as well as out of Love to Queen Emma and her Children, I will not take upon me to de­termine, since no Historian besides himself makes any mention of it; for the antient History of Ramsey Abby, written some time after the Conquest, and now lately publish'd by Dr. Gale, says expresly in the Title to Chapt. 94. That Harold was Consecrated (i.e. Anointed) King.

BUT that the English Nation before the Conquest, believed that their Kings were obliged to govern them by Law, (i.e. according to the original Compact) and that their Allegiance to them was then looked up­on as wholly due on that Account, our Annals seem to justify, Anno Dom. 1014, when the English Wites, or Wise Men, both of the Clergy and Laity, after the Death of Sweyn King of Denmark, sent over a Mes­sage to King Ethelred, being then retired into Normandy, whereby they assured him. ‘That no Prince was dearer to them than their own natural Lord; always provided, Gif He hi rihtlicor healdan wolde thonne He aer dyde, (as it is in the Saxon) i.e. if he would govern them more rightly (i.e. according to Law) for the future than he had done be­fore: whereupon he promised to be a faithful Lord to them, (i.e. a Prince keeping his Oath and Promise) and redress all their Grievances, if on their parts they would return to their Allegiance. And thus by giving mutual Assurances, he came Home and contracted a new Friendship or League with his People.’

HAVING now got over these great Points of the manner of Suc­cession, and Deprivation of our Saxon Kings; I shall next as briefly as I can run through all those Orders and Degrees of Men that did con­stitute this Common-Weal.

THE first Degree of Men beneath that of Kings, was that of Aethe­ling, Aetheling. or Prince of the Blood Royal, being derived from the Saxon word Aethel, which signifies Noble, and Ing, which being added to it, signifies one derived from Royal Blood, as appears by the Terminati­ons of Names in the Saxon Genealogies, set down in our Annals under Anno 449. and in several other Places, and was common not only to the King's Eldest Son, but to all others nearly related to the Blood Roy­al; and was a meer honorary Title, without any Power or Jurisdiction annexed to it that I know of, unless the King was at any time pleased to bestow it. Nor can I here omit giving you the Names of two other prin­cipal Offices or Dignities of the Kingdom, the one of which was Mili­tary, the other Civil, the former in Saxon was called CYNINGS HOLD, in Latin Princeps Militiae, General of the King's Forces. i.e. General of all the King's Forces in times of War: and thus we find King Alfred in his Will bequeaths a Legacy to Earl Ethelred his Son-in-Law, whom he denotes by this Title, Ethelredo Principi meae Militiae.

[Page lxxiii]THE other, viz. the Great Civil Officer, was that of Chancellour, Chancellor. so called from the barbarous Latin word Cancellare, from his cancelling or striking out what he pleased in Men's Grants and Petitions. And as for his Power, we find it thus expressed in Ingulf, Hist. Ingulph. Fol. 36. Edit. Oxen. (upon K. Edward the Elder's ha­ving made his Cousin Turketule Chancellor) Quaecún (que) negotia temporalia, vel spiritualia Regis Judicium expectabant, illius consilio (tam sanctae fidei, & tam profundi ingenii tenebatur) omnia tractarentur, & tractata irre­fragabilem sententiam sortirentur: from whence we may observe, that the King did not only in that Age determine Civil, but Spiritual Causes too in his own Person, and had his Chancellor for his Assistant in his Judgments; which being so given, irrefragabilem sententiam sortirentur, i.e. they obtained an uncontroulable Sentence, beyond which there then lay no Appeal: and this I suppose was done in that great Court we now call the King's Bench; for as for the Court of Chancery in Causes relating to Equity, Sir Edward Coke tells us in his 4th Institutes,Page 8. that there are no Precedents of it before the Reign of King Henry VI.

BUT that it was the business of the Chancellor to draw up the King's Charters, and also to sign them, before the Conquest, you will find at the end of the last Charter of King Edward the Confessor to the Abbey of Westminster, in the first Volume of Sir H. Spelman's Councils, where Aelfgeat a Notary signs it, vice Reynbaldi Regis Edwardi Cancellarii.

THE next Degree was that of Ealdorman, Ealdorma [...]. which was not only Titular as to the Person, but an Office, and signified, as you will find all along in our Annals, those great Magistrates under the King, who being cal­led in Latin Subreguli, Principes & Consules, in some of our Antient Char­ters; and sometimes in Saxon, Cynings, i.e. petty Kings, had the sub­ordinate Government of Cities, Counties, and often too of whole Pro­vinces, in all Affairs both Civil and Military, and were of much greater Power before King Alfred's Reign than afterwards; for whereas before his Time they had the chief Authority in all Places belonging to their Jurisdiction, they seem after the word Eorle came in use with the Danes, to have lost much of their Power, tho they still retained the Title. And it is observed by Sir Henry Spelman in his Glossary,Gloss. tit. Al­dermannus, Fol. 25. that he who was called the Ealdorman of the County, signified in the Laws of King Athelstane something between the Earl and the Sheriff, and there­fore seems to have been him who under the Earl governed the County or Province, and was his Deputy or Judg in the County Court in his Absence. For in those Laws the Value of an Arch-bishop and Earl's Head, is set at fifteen thousand Thrimsaes; whereas the Bishop's and Ealdorman's was but at eight thousand.

YET notwithstanding this Title did not cease to be esteemed very honourable many Years after that Time; for we find in Camden's Bri­tannia, that the Tomb of Ailwin, founder of the Abby of Ramsey, Hunting­tonshir [...]. was inscribed with the Title of Ealdorman of all England; which, as Mr. Selden says, could only mean, that he was somewhat like the Antient Chief Justiciary of England, Ti [...]s of [...]o­no [...]r, Chap. 5 Fol. 505. or Chief Director of the Affairs of the whole Kingdom, or Viceroy, Regiae dignitatis consors & nomi­nis, or half Cyning, as the [...]. Lib. d [...] Ramsey pub­lish'd by D [...]. Gale. Book of Ramsey has it.

NOT but that this word was also of a much more inferior Signifi­cation, seeing we find frequent mention in the Laws of Edward the Confessor, Spelm. Glos Tit. Alde­mannus. as well as in those Kings immediately after the Con­quest, of Aldermannus Hundredi, seu Wapentachii, as also of Alder­mannus [Page lxxiv] Civitatis, vel Burgi, whence the Title of our present Aldermen of Cities and great Towns are derived, (tho of a far different Significa­tion, as well as a much later Institution:) and this I suppose happened by reason of the Paucity of words in the Saxon Tongue, which called Grave Men, distinguished by any Office or Dignity, by the Title of Ealdormen, because they were at first bestowed on Men of elder Years; tho afterwards,Cap. 35. tit. Geref. as the Auctuary to King Edward's Laws informs us, they were not so stiled propter senectutem, cum quidam Adolescentes essent; sed propter sapientiam. Therefore I cannot forbear taking notice, that whereas Bede speaking of K. Oswald's sending (ad Majores natu Scotorum) to the Elders of the Scots for Bishops,Hist. Eccles. Lib. 3. Cap 3. & Vid. Lib. 1. Cap. 13. King Alfred in his Translation of Bede, calls them, the Ealdormen of the Scots, that is, the Great or Chief Men of that Nation. I must here beg the Reader's Pardon, for a Mistake I have committed in the rendring of that Passage into English in the ensuing History; for not having the Saxon Version by me, but only a Latin Copy, when I wrote it, nor having then consulted Mr. Selden, to whom I confess my self much beholden for this Criticism; I have there translated the words Majores Natu, Scotish Bishops, because I thought it most proper for them to be sent to about an Affair concerning Re­ligion.

I have no more to say on this Head, only that I have left this word Ealdorman, so often used in our Annals, untranslated: for tho I grant he is frequently stiled Dux, or Comes, in Latin, yet it would not bear being rendred Duke or Earl in English, because that those Titles are not only very different, but were unknown in our Saxon Tongue, till many Years after that Government was setled in England.

I come now to the Title Earl, or Eorle, which being altogether Da­nish, Eorle. was not commonly used here till the Reign of King Cnute, tho we now and then find it mentioned in our Annals before his Time; but as for its Power and Authority, it being much what the same with that of Ealdorman abovementioned, I think I need say no more of it, only that neither of them were then Hereditary, nor descended to Sons or Brothers, tho they often continued in the same Family, when the King was pleased so to confer it: And both the Title and the Office were li­able to be forfeited upon any great Male-Administration, as you will find in divers Instances in this Book.

THE next Title and Office I shall mention, is, that of Heretoch, which was wholly Military;Heretoch. and, as Sir Henry Spelman in his Glossary supposes,Tit. Holde. was the same with that of the Holde, or Commander in War, mentioned in the Laws of King Athelstan; because his Wiregild is made equal to that of a High-Gerife, viz. four thousand Thrym­sa's.

THIS Heretoch seems to have been somewhat like our Lord-Lieute­nant of a County at this Day; and was chosen for some extraordinary Occasion, as upon a sudden Invasion or Expedition against the Scots or Welshmen: Which being over, their Commission also ceased, but they themselves were still had in high Esteem and Honour, if they had pru­dently and couragiously discharged that great Trust. And as the same Author observes, in some Antient Charters, (I suppose whilst the Ealdorman exercised the whole Power of the County, as well Civil as Military) the same Title of Ealdorman signified the latter Dignity; of which he gives us this Instance, from a Charter out of the Antient Book [Page lxxv] of the Church of Worcester, where Earl Aelfhere is stiled Mercna Here­togan.

BUT in the Time of Edward the Confessor (and I suppose also be­fore) they were certainly distinguished,Tit. de Her [...] tochiis. as appears by the Thirty fifth Auctuary of that King's Laws; where after the Offices of the Ealdor­men, and Greve, the Duty of Heretochs is thus described, which I will give you here in English. ‘And there were other Powers and Dig­nities constituted through all the Provinces and Counties of the whole Kingdom, which were by the English called Heretochs, to wit, No­ble, Wise, Faithful, and Stout Barons. These sate our Armies in Battel Array, and raised others as they thought fit for the Honour of the Crown, and Service of the Kingdom. They were elected by the Common-Council for the publick Benefit of the Realm in all Provinces and Counties at a full Folk-mote, as the Sheriffs of the same also were, and ought to be: And in every County there was always one Heretoch thus elected, to conduct the Militia of his County, ac­cording to the King's Orders, for the Honour and Profit of the Crown of the said Kingdom, whenever there was Occasion.’

FROM whence we may observe, That before, as well as sometime after the Conquest, when this Auctuary was made, the King had not the Nomination either of the Heretoch or Sheriff, which were then the two Great Officers of the County, the one Military, the other Civil.

HAVING thus dispatched the Military, I proceed to the Civil Ma­gistrate, viz. the Sheriff; in Saxon, Scire-Gerefa, Sheriff. (or more contractedly Greve in the Laws of King Edward) who is called by Ethelwerd, Ex­actor Regius, (i.e. the King's Receiver). This Officer,Lib. 3. An. 787. as Asser shews us in his Life of Alfred, before that King made his new Reformation of the Kingdom, was appointed by the Ealdorman, and therefore called Vice-Dominus, and was much what the same with our Vice-Comes, or Sheriff, at this Day: But whether he had the Title of Sheriff before, as well as after that Alteration by King Alfred, I will not determine.

BUT it appears by both these Latin Titles, that he was the Officer, who instead of the Ealdorman, or Earl, sat as Judge in those we now call the County-Court, and Sheriff's Tourn. But these being so well known at this Day, I shall not further enlarge, only that this Officer was also to answer to the King's Exchequer for all Fines, Amerciaments, and other Duties arising out of the County; the third Penny of which the Earl had granted him by the King, pro sustentatione Dignitatis.

AND now I come at last to that great extensive Dignity of a Thane, Thane. called in Saxon Thegne, being derived from the old word Theowian, to serve; because they that had this Honour conferred on them, were at first the King's Officers or Servants, and in our Antient Latin Char­ters, subscribed by the Name of Ministri Regis, and are called in the Version of our Saxon Annals, as also in Florence of Worcester, Ministri Regii; not that they were really always the King's Domestick Ser­vants, tho they were so originally; on whom he likewise bestowed se­veral Lands in lieu of those Services, (Wages in Money being not then in use) which Lands descended to their Heirs, if the King pleased.

THIS Title of Thane was of two sorts, the one Spiritual, the other Temporal; the former were called in Saxon, Messe-Thegnes, i.e. Mass-Thanes, Priests, or Parsons of Churches, and other dignified [Page lxxvi] Clergy-Men; of whom I shall now say nothing, but that they were then of so great Note, that in our Saxon Laws they are ranged before the Werold-Thegnes, i. e. Temporal Thanes, and their Weregilds rated at the same Value with them, viz. two thousand Thrymsa's.

‘AND tho the word denoted a Servant or Minister in general, (and so divers had the Title as it were meerly Officiary and Personal) yet as Mr. Selden informs us,Tit. of Honours, Fol. 507, 508. those that were the King's immediate Te­nants of fair Possessions, which they held by personal Service, as of his Person, (or as we say by Grand-Serjeanty, or Knight's Service in chief) were, I conceive, the Thanes that had the Honorary Dignity, and were part of the greater Nobility of that Time; howsoever those Officiary Dignities of Holde and Highgereue, had then precedence of them: that is, they were all the King's Feudal Thanes, and the Land held so was called Tainland or Vid. Notas ad Eadmerum pag. 170. Thaneland, as afterwards the Lands held that made a Baron were called a Barony, as also they are called to this day. This Title continued all the Saxon times until the coming in of the Normans, and it was in some use also after that Time, and then was succeeded by that of Barons.’ This Title being of Norman Extraction, we rarely meet with it before the Conquest.

THERE were also besides these Chief Thanes, others who were cal­led middle or under Thanes, being the same with the less sort of Barons, or Lords of Mannors, who holding of other great Lords, and not of the King, were those that after the Conquest were called Vavasors; in­ferior to whom there were likewise a third Sort, who seemed to have been made up of the least or meanest Degree of Gentry or Freeholders, which were then all one; none but the Gentry or less Nobility then enjoying Lands by Freehold Tenure. And in this sense is to be under­stood that Law of King Cnute, Cap. 52. whereby it is appointed, ‘That if the Master of a Family (who by that Law was to have all his Houshold under his Pledg) were accused of suffering any of them by his Pri­vity to escape, being guilty of any Crime, he was then to wage Law with five other Thanes, (i. e. in Latin Nobilibus) himself making the sixth.’ Now it was impossible that there should be so many Chief Thanes, who held immediately of the King in any one Hundred or Tything, out of which those Thanes, or Gentlemen that were to make this Purgation, were to be taken.

BUT of all these Thanes, or less Nobility, I shall speak more at large by and by, when I come to consider the Members that composed the Mycel-Gemot, or Common-Council of the Kingdom, of which these made up the great and principal Part.

AND next to them I find another Title, tho not commonly used, yet as antient as the Laws of King Ina, as also mentioned in several o­ther King's Laws,Sithcund-Man. viz. a Sithcund Man, who if he refused his Service in the Army, or a Military Expedition, he forfeited his Land.

THIS Name Mr. Somner in his Glossary derives from Sith, or Giseth, Comes, vel Socius, a Ruler or Governour; and Cund, Kind, as it signifies the Condition and Quality of any one; and Mon, Man, that is, a sort of Comes, Governour, Judg, or Praefect: he was esteemed equal to a Thane, by the valuation of his Life in Aethelstan's Laws.

THIS Comes is not to be taken in that Sense, as if he was a Count or Lord, (as now understood) being only a Comes, or Companion in re­spect of those of his own Rank or Degree, and interpreted by Mr. [Page lxxvii] Lambard by Custos-paganus, Lamb. Explic. Verb. pag. 5. and so seems to have been the chief Man or Captain in a Town or Village, and was to head all those he brought with him from thence into the Field; and therefore the Penalty was the more severe on him if he ran away, lest he should infect others by his bad Example.

SINCE I have been so large in this Introduction, I have chosen but slightly to mention these Dignities and Offices; for they having been so learnedly and fully handled by Mr. Selden in his Titles of Honour, Cap. 5. as also by Dr. Brady in his first Part of the Saxon History, and by Dr. Howel in his Discourse of the Polity of the English Saxons, Part 4. Ch. [...]. I shall refer the Reader to them for his farther Satisfaction, and will only speak of two Degrees of Men more, of whom it seems (being below their No­tice) they give us but a short Account.

THE first is that of Ceorle, or Countrey-man,Ceorle▪ (from whence our word Carle or Churle is derived); indeed he could not be possessed of what was called Bockland, or Free-land conveyable by Deed; but how­ever he was as free as to his Person and Property as the greatest Thane of them all. And therefore we find in the Laws of King Alfred, di­vers pecuniary Penalties enacted against those who should commit A­dultery with a Country-man's Wife, or should endeavour to vitiate the Chastity of his Servant or Slave; or should break the Peace by fighting, either in his House or Yard. And as for his Person, by the last of those Laws it is appointed, what Satisfaction in Money shall be paid by any who wound or maim him, even to Nail of his little Finger. And this Law as equally extended to him, as to those of the greatest Quality. And because the Nobility or Gentry were too apt to abuse these poor Countrymen who were their Tenants and Vassals, the thirty first Law of King Alfred ordains, what Satisfaction a Man was to make for any ways injuring and misusing a Ceorle's Man, by binding him, beating him, or cutting off his Hair; Frolicks, I suppose, too often then in fashion among some ill-natured domineering Gentlemen; which made this merciful and good King provide such a necessary Law for their fu­ture Security.

AND further to prove their Freedom, it is likewise enacted in the Laws of King Ina, that if a Ceorlesman should refuse going out to War, he was to forfeit thirty Shillings; which shews, that he was such a Man as was to have Weapons of his own for the Defence of himself and Service of his Country: Which is also required by the Laws of Edward the Confessor, in Title Greve. Compleat Histo­ry, pag. 65. And therefore Dr. Brady is very much out, in limiting the Title of Freemen, mentioned in King Edward's LL. Edward [...] Cap. 35. Laws, only to such as were Tenants by Military Service; for that Law says no such thing, but only that all the Freemen in the whole Kingdom, according to their several respective Estates, Goods, and Possessions, and to their Fees and Tenements, ought to have Arms, and keep them rea­dy for the Defence of the Kingdom, &c. Where you may observe, that all Estates, Goods and Possessions, of what kind soever, do hereby ca­pacitate Men to keep Arms, and consequently give them the Title of Freemen; and therefore are not limited to Tenants by Knights Service alone. As also appears from the Assize of Arms appointed by King Henry the Second.Vid. Hovede [...].

[Page lxxviii]THE highest Degree of these Ceorles, were those called Liberi Soc­manni, Socmen. i. e. Free Socmen, so called from Soc, which in the Saxon Tongue signifies a Plow. Of these we find no mention till the Laws of Edward the Confessor, Cap. 12. where the Manbote (i. e. Satisfaction for a Servant slain) is by Danelage (i. e. the Danish Law) due from a Villane or Villager, and a Socman twelve Ores; from a Freeman three Marks: Not that this Socman here, put as distinct from Freeman, was really a Slave, but only as Freemen were then taken properly for Gentlemen or Freeholders; for that these Sockmen were free as to their Persons, tho not Lands, ap­pears by the old Natura Brevium, Cap. de Brev. de Recto. where it defines a Socman to be such a Tenant, who holds of the King, or any other Lord, Lands and Tene­ments by Villain or base Services; and was privileged in this manner, that none could eject him from those Lands and Tenements, so long as he could do the Services belonging to the same.

THIS I have taken notice of, because Dr. Brady, in his Preface before his Norman History, as also indivers other Places of his Works, has la­boured all he can to make the Condition of the common People of this Kingdom (before the Conquest, as well as after) to have been little bet­ter than that of Slavery, and seems to repine very often that it is not so still, as I could easily shew if I would go about it.

BUT certainly those could not be Slaves who had Slaves under them, and were entrusted with the highest Badg of Freedom, not be­ing forced or pressed thereunto, viz. a voluntary Service in War, which the greatest were alike subject to with these for the Defence and Safety of the Kingdom,Vid. LL. Ed­wardi Confess. Cap. 35. and which was part of the old Oath of Fidelity that was taken, as well before as after his pretended Conquest.

BUT before I dismiss this Subject, I cannot omit taking notice, that the Laws or Rules of Gentility were not so strictly observed under the English Saxon, as afterwards they were under the Norman Kings; for Mr. Seld [...]n hath given us a Law of King Athelstane, Tit. Honour, Ch. 5. Fo. 515. which he took from an Antient Manuscript in the Library at St. James's, in these words, Si Villanus excrevisset, ut haberet plenariè V. Hidas terrae suae propriae, Ec­clesiam & Coquinam, Timpanarium, & Januam & Sedem & Sunderno­tam in Aula Regis, deinceps Taini Lege dignus sit. ‘Which is also con­firmed by Mr. Lambard, Apud Lam­bard in Itine­rar, Cantii, pag. 552, 553. in his Itinerary of Kent, concerning the same Law, and is there set down in Saxon, which I shall here translate thus; That if a Ceorl or a Country-man so thrived, that he had fully five Hides of his own Land, a Church, a Kitchin, a Bell-house, a Bo­rough-gate with a Seat, and any distinct Office in the King's Court, then was he thenceforth of equal Honour or Dignity with a Thane.’ Where by the Church, the Kitchin, the Bell-house, the Borough-gate, with a Seat, &c. Mr. Selden understands, ‘The State or Fashion of a Lord of that Time, in having a Church for his Family and Tenants, in keeping a Court for them, (which may well be meant in the Burh­gate setl, or Town-gate with a Seat) and in keeping a House or Enter­tainment competent to that Dignity, which may be understood in the Cycenan and Belhuis, i.e. Kitchin and Bell-house. The Bell-house may denote the Hall, which was the place of ordinary Diet and En­tertainment in the Houses of Lords. It may well so signify, if the Saxons used the like Reason in imposing the Name on the Lord's Hall, as some say the Italian, Spanish, and French have done, in cal­ling it Tinello, Tinello, and Tinel; which in our Laws also is re­tained [Page lxxix] in Tinel le Roy, for the King's Hall. They would have it therefore so named, because the Tin, or tinkling of a Bell at the Times of Dinner and Supper were signified by it.’

BUT Sundernota, mentioned in the Latin Copy of this Law, seems to denote the distinct Office which he was to hold in the King's Court to make him equal to a Thane. And it is also observable, that by the same Laws of King Athelstane abovementioned, such a Ceorlsman so ad­vanced, and having five Hides of Land, (ad Vtwarum Regis) that is, as Mr. Selden in the same place interprets, held by Knights Service, Si oc­cidatur, reddentur 2 Millia Thrymsarum; so that his Wiregyld shews him to have been every way equal to a Thane.

BUT the most considerable Observation that may be made from this Law, is, that V. Hides of Land were at that time reckoned a suffici­ent Estate to constitute a Thane. But as to the Quantity of Land that then went to make a Hide, it was sometimes more and sometimes less, according to the Goodness or Quality of the Soil; but was certainly no more than what one Plow could well manure, together with Pasture, Meadow, and Wood, competent for the Maintenance of that Plow, and the Servants of the Family. So that the Estate of such a Thane could not be much more than what an ordinary Gentleman has at this day.

NOR can I here pretermit what follows in the same Law above re­cited, where after having shewn us by what means an Under Theyn might come to be a Chief Thane, and from thence attain to the Dignity of an Earl, it thus proceeds. ‘And if a Merchant so thrived, that he had passed thrice over the wide (or broad) Sea, by his own Cun­ning, (or Craft as it is in the Saxon) he was thenceforth a Thane's Right-worthy, i. e. was every way equal to him.’ Where you may observe that Wealth and Industry conferred Nobility in the Saxon Times as well as at this Day.

I come now to the lowest Rank of Men, viz. that of Slaves, Slaves. who were called in Latin Servi, and in Saxon Freortorlings; and there were two sorts of them, viz. such as were Personal, possessing no Estates,Vid. Aelfric. Gloss. Saxonic but all that they earn'd was their Lords, by whom therefore they were main­tained. The others were Praedial, such as were of Servile Condition and Original, but possessed their small Holdings and Goods at the Will of their Lord, doing all those Servile Countrey Works that were set them; and from thence in the more modern Norman Dialect were cal­led Villains, from those Villages where they lived and wrought: But before as well as after the Conquest, that the Latin word Villanus did not signify a Villain or Servant, I could prove from many Instances, both out of Records and Histories, if I thought it would not be too tedious in this Place.

AS for the Original of these Slaves among the Saxons, there is some doubt about them; some supposing them to have been derived from the remainder of those meaner sort of Britains, who were either taken Pri­soners, or else never forsook the Land, and so their Lives being saved, they were made servile by their Conquerors; or else such as were de­scended from those who came over in the nature of Slaves to the Eng­lish Saxons that first landed here: but it is not much material how they began, since they might proceed from both, or either of these Origi­nals; [Page lxxx] nor had their Lords Power of Life or Death over them, for if they killed any of them, they were to pay the Value of their Heads to the King.

THESE Slaves, if they were set free at any time by their Masters, were what the Romans called Liberti, and in Saxon Freolaetan; but being then resolved into the Body of Ceorles, or Countrey-men, they did not, as among the Romans, constitute any new Order of Men.

HAVING now gone through all the Sorts and Degrees of Men, who either lived in, or were maintained out of the Countrey; I shall in the next Place say somewhat of another distinct Body of Men, called in Saxon Burh-witan, Burh witan, i. e. Citizens and Towns­men. or Burh-wara, that is, Citizens or Townsmen, who had Privileges peculiar to themselves, and living in Cities or great Towns, were governed by their own particular Magistrates called Eal­dormen, or Portgerefan, i. e. Port-Reeves, assisted by the Chief Men of the Place,Vid. Aelfric, Gloss. Saxonic called in Saxon, Yldist-Burh-wara, who were much the same with what we now call Aldermen or Common-Council Men; for as for the Title of Mayor, it came not in use here till long after the Conquest.

BUT as for these Magistrates and Members of Cities and Towns, I shall speak more by and by, when I come to treat of the constituent Parts of the Great Council of the Kingdom.

FROM the different Orders of Men, we shall now descend to speak of the different Courts where these Persons abovementioned,Different Courts. (all ex­cept the Villains) were bound to appear, and there either to do or re­ceive Justice; for which it will be necessary to look back to the Reign of King Alfred, who after the first Invasion of the Danes, when he be­gan to resettle the Kingdom, found his Subjects so far corrupted by a long and hazardous War, that all Places being full of Robberies and Murders, there was an absolute necessity for the making of more severe Laws to restrain them; so that (omitting the Division of Counties or Shires, which I shall speak to hereafter) he Canton'd his Kingdom, 1st. into Trihings or Lathes, 1. The Court of Trihings or Lathes. as they are still called in Kent and other Places, consisting of three or four Hundreds; in which the Freeholders being Judges,Lambard. de priscis Anglor. Legibus. Fol. 135. such Causes were brought as could not be determined in the Hundred Court: concerning the Proceedings in which Court of the Trihing or Lathes, you may see divers Precedents in Sir William Dug­dale's Chap. 12 Fol. 26. 2. The Hun­dred Court. Origines Juridiciales.

NEXT to which there was also the Hundred-Court, in Saxon Hun­dred-Gemot, and in Latin Centuriata, ‘Because it originally consisted of an hundred Hides of Land, as an Hide usually of an hundred Acres, or else because super decem Decanos, & centum Friburgos judi­cabat, that is, it had Jurisdiction over ten Decennaries, or an hundred Friboroughs.’

THIS Court before the Conquest was held twelve times a Year, and afterwards was increased by Henry I. to once a Fortnight, and then by Henry the Third reduced to once in three Weeks.

Dugdale's Ori­gin. Juridic. Cap. 11. ‘IN this Court antiently, Vnus de melioribus qui vocatur Alderman­nus, one of the principal Inhabitants, called the Alderman, together with the Barons of the Hundred (id est, the Freeholders) was Judg, as may seem by the Ex Regist. de Ely, in Bibl. Cotton, sub Effigie Titi. [...]. 1. F. 6. b. Register of Ely, which saith, that Aegelwynnu [...] Aldermannus venit ad Ely, & infrà Cimeterium ad Aquilonalem portam [Page lxxxi] Monasterii, tenuit placitum cum toto Hundredo: Ibid. Fol. 5. b. & Fol. 7. a. & Fol. 13. b. And the Witness of Contracts and Purchases, then were Testimonio Hundredi. Here, not only Temporal Causes, but Ecclesiastical were handled; the Alderman, or principal Judg, being such a one as Dei Leges & homi­num jura studebat promovere, who studied to promote the Laws of God and Man, the Bishop or Arch-Deacon sitting therein, with the said Alderman: Which Jurisdiction so continued until the beginning of William the Conqueror's Reign, that he by a special Precept did in­hibit,Cart 2. R. 2. m. 12. n. 5. per inspex. Quod nec Episcopus, net Archidiaconus de Legibus Episcopalibus amplius in Hundredo placitum teneat.’

BUT the lowest of these Inferior Courts, was that of the Decennary, or Tything, The Decen­nary, or Ty­thing Court. which yet was the greatest Bridle upon the Inferiour sort of People; ‘For by virtue of this Law of King Alfred, every English Free­man, as Ingulph tells us, ought to be in some Hundred or Tything, (I mean, whosoever was of full twelve Years of Age);Vid Leg. Ca­nut. cap. 19. and if any one should be suspected of Larceny or Theft, he might in his own Hundred or Ward, being either condemned, or giving Security, (in some Manuscripts it is being acquitted) either incur or avoid the de­served Penalty.’ William of Malmesbury adds to this, ‘That he that could not find Security, was afraid of the Severity of the Laws; and if any guilty Person, either before his giving Security or after, should make his Escape, all of that Hundred and Tything should incur the King's Fine.’

HERE we have the Original of Decennaries, or Fribourgs, Vid. Leges Edwardi. cap. 27. in which every Man was to be bound for others as well as himself, viz. Masters for their Servants, Husbands for their Wives, and Children, before they had attained the Age of Fourteen; as also the Housholder for his Guests. All which ten Persons being thus bound one for another, were united under one Head, called a Tythingman, and in some places a Bors­holder; for BORGH signifies a Surety or Pledg, and FRI is all one as Free. From whence comes our word NEIGHBOVRS, that is, those that are Near-Pledges.

BUT that this Law concerning the Decennaries or Tythings, was not only made for the meer Vulgar or ordinary sort of People, but that the Chiefest of the Nobility, and even the Arch-Bishops and Bishops them­selves were alike subject to it,Vid. Lambard. LL. Edward, Cap. 16. will appear by that Law of Edward the Confessor, confirmed by King William I. whereby all Arch-Bishops Bishops, Earls and Barons, and all those that had Courts of Sac. Soc. and Theam, &c. swore to keep their Knights, and all other Servants there mentioned in their Frithborg, (i. e. Franc-pledg) for whom these Lords or Masters themselves were to be Sureties: so that if any of them offended, their Lords were obliged to do right in their Courts. And by the Laws of Cnute, every Thane or Gentleman of Estate,Cap. 50. was to have his Family under his own Pledg; and if any of them were ac­cused, he was to answer for him in the Hundred Court, i. e. was to compel him to appear. And the Lord was also to be answerable for him, if he escaped; so that all the Privilege that Noblemen and Gen­tlemen had above the common Men, was, that they were not bound one for another, so as to be part of any Decennary or Tithing; but each of them was Head of his own Friburgh, and his Family was as it were a distinct Tithing of it self.

[Page lxxxii]I observe this, to let the Reader understand, that how severe soever this Law was, it was no Badg of Slavery or Subjection upon the com­mon People, for even the best Men in the Kingdom were alike subject to it: Neither was it brought in, or increased, in Rigour by the Norman Conquest, as some, with greater Prejudice than Truth, have maintained; since the Normans as well as the English, were all under one and the same Law as to this Point.

THE Laws of this Court of the Tithing, were these;

FIRST, That if any one offended, and failed to appear, the other Sureties were bound to have him forth-coming to Justice.

SECONDLY, But if the guilty Party fled, he should not be any where received without a Testimonial from the Tithing from whence he came: So that a Man being out of any Tithing, if he were received in any Town, the whole Town was in the King's Mercy. But by the Laws of King Edward, Cap. 20. the Decennary was allowed one and thirty Days to bring the Offender to Justice, that so he might make Satisfaction, either by his Goods or Body.

THE third was, that if he could not be found, then the Tithingman or Borsholder, taking with him two of the best of his own FRIBVRGH, and of the three neighbouring FRIBVRGHS nine, (to wit, of each the chief Tithingman, and two others of the best Note) and there be­fore the King's Justice (if he could) he was to purge himself by Oath of the Offence and Flight of the Criminal: But if he could not, he with his own FRIBVRGH was to restore the Loss out of the Goods of the Party, if they were sufficient, or otherwise out of his own, and those of his FRIBVRGH.

LASTLY, If the Neighbouring FRIBOVRGS would not be their Compurgators, then they were to swear for themselves, that they were therein no ways Guilty; and that so soon as ever they could find him, they would bring the Offender to Justice, or else discover where he was.

THERE were many other particulars concerning this Matter which I pass over, that I may not be thought too prolix; but these are the most material.

The Rise of Court-Ba­rons. Vid. Leges Edw. Conf. apud Lamb. F. 132. a.BUT besides this Caution concerning Pledges, they were also the first Foundation of Court-Barons, who were under the Thane, or Baron, (i.e) the Lord of the Mannor, (as their Head) and he was to undertake for every one of his Tenants, and to satisfy for the Offences of each Man.

BY these Friburghs or Pledges, together with their Borsholders, were all Civil Actions, as of Debt, Trespass, Detinue, or the like, (which arose betwixt any of their Township) determined; but when there was a Cause that concerned Men residing in several Seigniories, then it was transmitted to the next superior Jurisdiction, viz. the Hundred-Court, (in some Places called the Wapentake.)

The Scire­mote, or Sh [...]riff's Tourn. Vid. Dugd. Juridical. Orig. c. 13. fol. 28.THERE still remain behind two very considerable Courts, both held by the Sheriff; ‘The former of which was antiently called Sciremote, (i. e. the meeting of the Inhabitants of the Shire) and was held twice in the Year, long before the Norman Conquest, as appeareth from sundry Testimonies Leges Ed­gari ( [...]enes Lamb.) cap. 5. fol. 80.; but since that, the Shireeve's Turn, from the French word Tour, in Latin Vice, and in English Turn. Herein sate together the Bishop of the Diocess, and the Earl or Eolderman, [Page lxxxiii] in Shires that had Eoldermen;Leges Canuti (ibid) c. 17· Fol. 108. a. Selden's Tit. of Honour, part 2. cap. 5. and Sect. 5. Fol. 628, 130. and the Bishop and Shireeves in such Counties as were committed to Shireeves, for many Ages in the Sax­ons Times, as from these Laws from King Edgar to Canutus, cited in the Margin, doth appear, to the end they might determine as well of what concerned Ecclesiastical as Civil Matters: the words of this last King's Law run thus; Ex Vid. Jani Angl. &c. omni Comitatu, bis quotannis conven­tus agitor, cui quidem illius Dioecesis Episcopus & Senator intersunto: quorum Alter Jura Divina, humana alter populum edoceto.’

‘IN every County let there be twice a Year an Assembly of the People, whereat the Bishop of the Diocess and the Earl shall be present, the one to direct in Divine, the other in humane Matters.’

‘WHICH so continued (the Bishop and Earl sitting therein toge­ther) until King William the Conqueror in a full Convention of his Arch-bishops, Bishops, Abbots and Temporal Lords, commanded, that Cart. 2. R. 2. per Inspex. m. 12. Ecclesiastical Matters should thenceforth be handled by the Bishops in Courts of their own, and not any more be discust amongst Secular Affairs.’

IN this Court (as well as in that of the Country) according to the Laws of King Henry I. these Persons following were to be present, as may appear by this Clause, Intersint autèm Episcopi, Comites, LL. Henry I. cap. 7. Vicedomi­ni, Vicarii, Centenarii, Aldermanni, Preafecti, Praepositi, Barones, Vavas­sores, Tungrevii, & caeteri terrarum Domini diligentèr intendentes, nè ma­lorum Impunitas, aut Gravionum pravitas, vel Judicum subversio solita miseros laceratione confiniant.

AGANTVR itâ (que) primò debita verae Christianitatis Jura; secundò, Regis placita; postremò Causae singulorum dignis, satisfactionis expleantur. Scil. Eccle­siastical Causes and Pleas of the Crown in the Turn; but Private Causes in the County Court, Vid. Coke's 4th. Instit. 259, 260. where you will find that,

THE Tourn is a Court of Record holden before the Sheriff, the An­tient Institution thereof was before Magna Charta to hear and deter­mine all Felonies (Death of Man excepted) and Common Nusances:Page 260. See the Stat. Mag. Chart. c. 17. and the Exposition of the same in the 2d. Instit.

THE Stile of this Court is, Curia Visus Franc. Domini Regis apud B. coram Vicecomite in Turno suo, &c. ibid.

THE reason of which is, because in this Court the Pledges or Sure­ties of every Decennary or Tithing were entred before the Court-Leets were taken out of it, and granted to particular Lords of Mannors, which Sir H. Spelman in his Glossary supposes to have been done in the Reign of King Alfred;Verb. Laeta. but since I find nothing concerning these Court-Leets till after the Conquest, I shall defer the farther treating of them to that time.

I have no more to say of this Court, but that it was also called the Folcmote, and in which, by Edward the Confessor's Laws, all Freemen were to take the Oath of Allegiance or Fidelity to the King,Vid. LL. Ed­wardi, c. 35. as appears by the Law it self; Omnes Proceres Regni, milites & Liberi Homines to­tius Regni BRITANNIAE facere debent Fidelitatem Domino Regi in Pleno FOLCMOTO coràm Episcopis Regni, &c.

YOU will likewise find in the same Law (just preceding this) an ex­traordinary Assembly of this Folcmote upon any sudden Danger, which met on ringing of the Bells, called in English Motbel; and there they were to consult how to prevent the Danger.

[Page lxxxvi] The County Court. Vid. Dugdale ut Supra. ibid. ‘THE second of these Courts was called the County-Court, and was also very Antient, and to be held once every Month by the Shireeve, as from K. Edward the Elder's Leges Ed­wardi Senioris apud Lamb. c. xi. Fol. 51. a. Videsis etiam Leges Canuti cap. 17. apud Lamb. Fol. 108. a. Laws appeareth—Praepositus quís (que) ad quartam circitèr quam (que) septimanam, frequentem populi concionem ce­lebrato: cuí (que) jus dicito aequabile, Lites (que) singulas (cum dies condicti ad­venerint) dirimito.’

‘EVERY Shireeve shall convene the People once a Month, and do equal Right to all, putting an end to Controversies at Times appointed.’

‘TO this Court were antienly Appeals made from the Hundred-Court, as appears by the Laws of Canutus — Et nemo na­mium capiat in Comitatu vel extra Comitatum, priusquam ter in Hun­dredo suo rectum sibi perquisierit:Cap. 39. apud Brompt. Col. 924. & apud Lamb. Fol. 108. a. n. 18. Vid. Spelm. Gloss. vocab. Comitatus Curia. si tertia vice rectum non habeat, eat quarta vice ad Conventum totius Comitatus quod Anglicè dicitur Scyre­mot, &c. No Man by a Distress shall compel another to the County-Court, unless he have thrice complained in the Hundred-Court; But if he have not Right the third Time, he may then sue in the County-Court, which is called the Scyregemot.’

‘AND besides (says Sir William Dugdale) Vid. Lib. rub. in Scacc. Fol. 26. inter Leges Hen. 1. Regis placita & Causa singulorum debita; verae Christianitatis jura, were first determined here; where interesse debent Commissarii, Episcopi, Comites, & Ecclesiae potestates, (and the Presbyter Ecclesiae, as well as quatuor de Melioribus villae, were obliged to attendance) qui Dei Leges, as well as Seculi ne­gotia, justâ consideratione definirent.’

AND a little after he further proceeds thus, ‘Now let us see of what things the Sheriff here antienly held Plea: —Ad Vicecomites perti­nent ista (saith Glanvile) Placitum de Recto, de liberis Tenementis, per Breve Domini Regis,Glanvil. Lib. 1. Cap. 4. ubi Curia Dominorum probatur de Recto defecisse; Placitum de Nativis, sed per Breve Domini Regis.’

‘ID est, It belongeth to the Shireeve to hold Plea in this Court upon a Writ of Right concerning Freehold, in Cases where the Lord of the Mannor (wherein the Land lieth) hath not done Justice; as also to hold Plea concerning Bondmen, but by the King's Writ.’

I shall say no more of this Court, but refer the Reader to the said Book (from whence I have taken most of those things I have here given you concerning all these Courts);Vid. Dugdale Origin. Jurid. wherein he may find at large how great the Power of this Court was, not only before but after the Conquest: And I have also reserved the treating of these two Courts by themselves, because tho the 3 former are supposed by some to be of K. Alfred's Erection upon his new Reformation of the Kingdom, but these two were not so; for notwithstanding Ingulf tells us, that this King Alfred first divided the Provinces of England into Counties, yet we find Mr. Selden Learnedly makes it out,Selden's Tit. of Honours, chap. 5. Fol. 509, 510. ‘That Alfred was not the first that divided the Kingdom into Shires or Counties; for (saith he) be­fore Alfred's Time, those Provinces had their Ealdormen in them: Thus we read of Ethelwolfus Barocensis Pagae Comes, and Ceorle Dom­naniae Comes, and Eanulf Somersetensis Pagae Comes; for the Earldoms of Barkshire, Devonshire and Somersetshire under King Ethelwolf, Fa­ther to King Alfred, are remembred in Asserius Menevensis, that lived in King Alfred's Time. Two of them are also in Lib. 3. cap. 3. Ethelwerd, a Writer of the Saxon Times, besides Osric Dorsetum Dux, for Eolder­man of Dorset; E [...]lchere or Alchere was at the same Time Ealdorman of Kent, and Auda or Wuda of Surrey, as we have it in Hoveden, [Page lxxxv] Huntingdon, and in that Asserius also. And Ingulphus hath the Char­ter of King Ethelbald's Foundation of Crowland, whereunto the Comites of Leicester and of Lincoln both subscribe.’

TO which I may also add divers Examples that you will meet with of the same kind in the following History, out of the Saxon Annals.

HAVING thus dispatched these inferior Courts, I come now to the chiefest, (next to that of the Great Council of the Kingdom) viz. that which was called Curia Domini Regis, Curia Do­mini Regis. ‘Because oftentimes (as Sir Wil. Dugdale informs us) the King himself sate here in Person, having several Justices, à latere suo residentes, as Lib. 3. C. 10. Bracton expresseth it;Dugdal. Ori­gin. Juridical. Cap. 17. F. 38. and in his Absence, the Ealdorman, or Chief Justiciary of all England, sup­plied his Place.’

CONCERNING this Court, tho we have not many Memorials left of it before the Conquest, yet it was certainly at that Time in Being, since it seems to have been then the Great Court of all Appeals, as well Criminal as Civil, long after the Conquest, before the Court of Common-Pleas was taken out of it: for here it was that K. Alfred is supposed to have re-heard and examined the false Judgments of his inferior Judges in the Hundred, and County-Courts; and here it was also that he con­demned above forty of them to be executed in one Year, for their er­roneous Sentences in Matters of Life and Death,Cap. 5. as you will find in the Mirror of Justices.

I need say no more of this Great Court, whose Power now resides in that of the King's-Bench and Common-Pleas, neither the Chancery nor Exchequer having then any Being; the former of which commenc'd long after the Conquest, and the latter was erected by King William the First.

I have but two Observations to make concerning our Antient English Saxon Courts of Justice; the FIRST of which is, that strict Union there then was as well in the Folk-mote and County-Court, as in the Hundred-Court, between the Ecclesiastical and Civil State; in both which the Bishop and the Sheriff sitting together, all Causes both Spiritual and Secular were equally, and at one time, dispatched to the great Ease and Satis­faction of the Subject, who were taught by the Bishop in the Folk-mote what was their Duty towards God and the Church, as they were by the Ealdorman or Sheriff what Common Laws they were bound to ob­serve, in order to their Honest and Peaceable Living one among ano­ther: a Custom, which when reading of Books was not generally in use among the Laiety, was absolutely necessary for the acquainting them with their Duty; in imitation of which I suppose our Common Charges at Assizes and Sessions are continued to this Day.

THE SECOND is, the great Ease the Subject must needs find in ha­ving Justice administred to him in smaller Actions, in the Court of De­cenary or Tything, even at their own Doors; or else in Appeals and greater Actions at the Court of the Trihing or Lathe; from whence they might re­move it to the County-Court; and if they thought themselves aggrieved there, then they might bring it before the King himself, or his chief Justiciary, in the Great Court abovementioned. An Admirable and an Excellent Constitution this! whilst the Laws of England were few, easy and plain, before the Partiality and Corruption of Countrey Juries came in, and the bandying and Factions of Rich and Powerful Men in [Page lxxxvi] the Countrey against each other, together with the vast varieties of Determinations of Cases in Law, had rendered those inferior Courts not only perplexed, but unsafe and vexatious to the Subject.

The Great Council, or Parlia­ment.I come now to the Supream Court of the whole Kingdom, called in Saxon the Wittena-Gemot, or Mycel-Synoth; in Latin Magnum, or Com­mune Concilium Regni, the Great or Common-Council of the Kingdom, consisting of the King and the three Estates, which we now call our Parliament; which Court the Author of the Mirror of Justices expresly tells us, ‘That King Alfred ordained for a perpetual Custom, that twice in the Year, or oftner, in Time of Peace, if Business so required, they should assemble at London to treat of the good Government of God's People, and how Folks should be restrained from Offending, and live in Quiet, and should receive Right by certain Antient Usages and Judgments, &c.’ From whence you may observe, that in this Author's Time, (viz. that of Edward I.) it was held for Law, ‘That the great Council of the Kingdom antiently met of Course twice in the Year, without any express Summons from the King; and this it seems was afterwards altered to thrice in the Year, viz. at the three great Feasts of Christmass, Easter, and Whitsontide, when the King met his Estates with great Solemnity, wearing his Crown upon all solemn Days of Entertainment; and when the Feasting was over, they fell to dispatch the publick Affairs,Vid. Vol. 1. Council. An. 851. Fol. 347. as Sir H. Spelman well observes.’

THESE stated Councils which were then held ex More (as our Hi­storians term it) i. e. according to antient Custom, continued long after the Conquest, as shall be farther shewn hereafter: but if this Council happened to meet at any other extraordinary Time, then the King's special Summons was requisite, as you may find in Ingulf un­der Anno Dom. 948. where he tells us, King Edred summoned the Arch-bishops, Bishops, and all the Proceres, and Optimates (i. e. Chief Men of the Kingdom) to meet him at London at the Purification of the Virgin Mary. Whence we may observe, that this Summons was thus issued, because this Council was extraordinary, as not being held ex more, at any of the usual great Feasts abovementioned.

CONCERNING the Original of this great Assembly, since Sir Robert Filmer in all his Works,Pag. 116, 117, 118. and particularly in his Patriarcha; and Dr. Johnston in his Excellency of Monarchical Government, ‘Would have this (as well as all our other Liberties and Privileges) to have been only Royal Abatements of Power,Vid. Introduct. and Fol. 127, 128. and gracious Indulgences and Condescensions of our Kings for the Benefit and Security of the Sub­ject; who were pleased to condescend to call some Persons of each of the three Estates (it being left to their Discretion whom to summon, and whom not); and tho many of our Kings have made use of such great Assemblies to consult about important Affairs of State, and by their Consent and Approbation, to make Laws as well as (at their Prayers and Petitions) to redress their just Grievances, yet they owed their being to our first Monarchs, since till about the time of the Conquest there could be no General Assembly of the Estates of the whole King­dom, because till those Times we cannot learn it was entirely united into one; but it was either divided into several Kingdoms, or go­verned by several Laws.’

I confess this looks at first like a specious Hypothesis, and may serve perhaps to prevail upon some ignorant and unwary Readers, who will not, [Page lxxxvii] or cannot give themselves the trouble of searching to the Bottom, to find out the Truth of things. But I desire the Favour of those who believe and maintain this Opinion, to answer me these few Queries.

FIRST, How it came to pass that in all the Kingdoms of Europe, erected out of the Ruines of the Roman Empire, (as well as those that were not, but yet had been constituted according to the same Gothick Model) the like General or Great Council of Estates, consisting of the same Degrees and Orders of Men, were to be found in every one of those Kingdoms? To begin with Sweden and Denmark, and then go on to the Kingdom of Germany, now called the Empire, and so into France, and from thence into Spain, among all the petty Kingdoms that then composed that Monarchy (taking Portugal, if you please, into the Account); you will find that the Estates of all those Kingdoms (as representing the whole Body of the same) consisted of the Clergy, Nobility, and Deputies of Cities and great Towns; which is briefly comprized by this single Verse of Gonterus, an old German Poet, con­cerning the Estate of the Empire in his Time,

SECONDLY, How it happened, that in all the Kingdoms of the English-Saxon Heptarchy, the first Founders of which came out of Frizeland, Westphalia, Holstein and Jutland, the like Great Councils, consisting of the King, the Clergy and Nobility, came to be instituted in each of them? For as to the Representatives of Cities and Towns in England, since the Framers of the abovementioned Hypothesis deny their appearance here, I shall say nothing as yet.

THIRDLY, Whether it be probable, that without a General Agree­ment of Laws and Manners with those People of Germany, from whence these English-Saxons came, they should by a sort of Natural and Unac­countable Sympathy, fall of themselves into the very same Political Form and Constitution?

FOVRTHLY, Whether Princes were above a thousand Years ago, so much more Ignorant of the Arts of Government, and so little Ambi­tious of Riches and Power, that they should all agree within a Century of Years, to set up one uniform Model of Government, and admit the People into a share of their Power, especially into that Grand Prero­gative of laying Taxes; which most Princes now do all they can to per­form by their own absolute Will?

FOR as to that of understanding their Subjects Grievances, they might either not take notice of them at all, or else, if they would, might have found out a more easy Method to come to the Knowledg of them, than by Summoning the Clergy, Nobility, and People of a whole Kingdom at once, to acquaint them therewith.

FIFTHLY, How it came to pass, that in all those Countries (so long as they continued Elective) the States exercised the same Power of Deposing their Kings for Tyranny or Male-Administration? Does this look like a precarious and dependent Power? And,

LASTLY, Whence happen'd it, that in France and England (and I believe I could shew the same in other Countries too) the Estates of the Kingdom met twice in the Year, according to Custom, at a certain Time and Place, without any Summons from the King?

[Page lxxxviii]NOW when the Gentlemen who maintain the Hypothesis above­mentioned, shall return a fair and satisfactory Answer to these Queries, I shall not only willingly submit to their Judgments, but give them my Thanks for their better Information; but till then I think it is much more agreeable to good Sense, as well as Matter of Fact, to maintain, that those Orders and Degrees of Men that did constitute the Great Councils, were more Antient than Kingly Government, nay Christia­nity it self among them, as appears by those Testimonies I have pro­duced out of Bede and other Authors; from all whom it plainly appears, that the first Princes in all those Governments were originally Elected, of which I hope I have given undeniable Instances, out of our own as well as Foreign Histories: and certainly that which gives Being to a Thing, must be prior in Nature to that which is produced from it.

HAVING now done with the Original, I shall next proceed to the Constituent Parts of this Mycel-Synoth, or Wittena-Gemot; the last of which words is derived from the Saxon word Wites, or Witen, i.e. Sapientes, or Wise-Men;Glossary, Fol. 66. and tho Dr. Brady in his Glossary will have this word most­ly to signify Noblemen, or Great Lawyers, yet I do not find he brings any good Authority for his so doing: For granting it is true, Wite sig­nifies a Wise-Man, however it no ways proves that all Wisemen must be Lawyers, much less that those Lawyers were Noblemen; and since he himself does not extend this Wisdom only to Knowledg in the Laws, I need not say any more to it.

AS for the rest of his Authorities in this Page, whereby he would prove that divers things were done by the Decrees of these Wisemen or Lawyers, they sufficiently answer themselves; since it appears even by his own shewing, that these Sapientes were the Bishops, Abbots, Aldermen and Thanes; and when he makes it out that every one of these Orders of Men were Noblemen, or Lawyers, I shall come over to his Opinion.

AS for what he says in the next Page, where he gives us the Inter­pretation of those words of Bede, Principibus, & Consiliariis, by Eal­dormannum and Witum; they are yet less to the purpose, since a Man might be a very good Counsellor, and yet at the same Time no great Lawyer.

BUT the Author's seeming stabbing Proof is out of Asser, in his Life of King Alfred, Id. Fol. 67. ‘Who admiring the Ignorance of his Earls and Praefects, commanded them either forthwith to lay down their Pla­ces of Judicature, or else to apply themselves SAPIENTIAE Studiis, to the Study of Knowledg, or of the Law. Here we see again (says he) who had the Title of SAPIENTES, namely the Judges, that is, the COMITES, PRAEPOSITI, & MINISTRI, or Thegnes; for these last were the Seminary of Nobility, or Great Officers, Civil, Military, and Ecclesiastick amongst the Saxons.’

‘NOW I desire the Reader to observe, that admitting we should take the word Studia SAPIENTIAE here, for the Knowledg of the Law, does it therefore follow, that all that studied it must be Lawyers by Profession? when it is very certain that the Study of the Law was not then, nor long after, a Trade, as it is now; since all the Freeholders or Thegnes, after­wards called Barons, were (as well as Ealdormen) required to have a competent Knowledg of the Laws of their Country; or else how could they either plead their own, or try each others Causes in the Hundred [Page lxxxix] and County-Courts (as they are in the Cap. 1. Laws of K. Henry 1. recited to have done) before the Profession of Counsellors came up?’ Or how could they sit, and judg Causes in the County-Court, or Folc-mote, when every Thegne, or Gentleman in the County, was capable of being chosen Sheriff, and of sitting Judg in those Courts, many Ages before the Office of an Vnder-Sheriff was heard of?

AND as for the Auctuary to the 35th Law of Edward the Confessor, Id. ibid. Lamb. fol. 147. wherein the HERETOCHS are called BARONES, NOBILES, & insignes SAPIENTES, there can be nothing urged less to purpose; for then (according to the Doctor) they must have had all great Titles, and have been chosen Generals in War, and Leaders of Armies; and Pray why? because they were SAPIENTES, i. e. Great Lawyers. But the Doctor had the good luck to find once in his Life, that Studia Sapi­entiae, for want of a better Expression, signified the Study of the Law, and therefore the word SAPIENTES and WITES, where-ever he meets with them in our Saxon Laws, or Great Councils, must (forsooth) sig [...]ify Lawyers or Judges: And his Design in it is evident, that he might thereby confound the Law-makers with the ordinary Counsellors or Advisers, whom those Law-makers might often imploy in the drawing of the Laws; but he is indeed at last so modest as to tell us, ‘That at this day the Judges, and King's Counsel, and other great Lawyers that sit in the Lord's House, are assistant to the Parliament when there is occasion.’ But that he would here as well as elsewhere insinuate, that no body else had any more right to appear there than they; you may see more plainly in his Notes to his Fol. 85. Compleat History of England, where upon the words Sapientes or Witen made use of in the Saxon Laws, he says, ‘That if they only signified Men skilled in the Laws, then were none of the Temporal Nobility present at the ma­king of those Laws, unless perhaps they were the Lawyers meant by that word, as being many of them Judges and Justiciaries at that time, But yet he is at last forced (with Justice) in the same place to acknowledg, upon the words, that Witan, Sapientes or wise Men, must be taken for, or meant of the Bishops and Nobility, or else they were not present at the making of these Laws; which no Man can believe, that considers how many Ecclesiastical Laws there are a­mongst them, and Laws relating to the Worship of God, and a holy Life, that were never made without at least the Advice of the Bishops.’

IT is well my Lords the Bishops were concern'd here, or else sure he would never have been so free as to make the word Witan signify not only great Lawyers, but Divines too: and thus by the same liberty of paraphrasing, studia Sapientiae may signify the Study of Divinity.

BUT enough of these Trifles; for the Author himself hath some Lines above in the same Notes, granted as much as I can desire, because he confesses, ‘That in our Saxon Laws, the Sapientes or Witan were divers times taken for the whole Baronage, or Nobility, as I may so say: And in this sense it is used in the 49th Chapter of the Preface to Alured's Laws.’ And I desire the Doctor to shew me any Instance out of the Saxon Laws or Annals, if he can, where the words Witan, or Witena-Gemot are used in any other sense. But what was the true meaning of that word Baronage we shall reserve to another place; it suffices at present to let you see he owns they were somewhat more than [Page xc] great Lawyers; and that it comprehended others besides Noble-men by Birth, I shall prove by and by.

IN the mean time I shall shew, by what Words and Phrases the Witena Gemot, Witena Gemot. consisting of these Wites, is called in the Latin Version of our Annals, as also of our Historians who have wrote in the same Language.

Concilium Procerum, vel Prima­tum.IN the first of these it is rendered Concilium PROCERVM, how truly, I have said somewhat in the Preface: by Florence of Worcester in his Version of the same Annals, it is commonly render'd Concilium PRIMATVM, and sometimes, but more rarely, PROCERVM. But when this Author would distinguish the Laity from the Clergy at these Assemblies,Laity and Clergy. he words it thus, ARCHIEPISCOPOS, EPISCOPOS, ABBATES, & Angliae OPTIMATES; sometimes thus, EPISCOPOS, & DVCES, nec non & PRINCIPES, & OPTIMATES Gentis Angliae.

AS for the Signification of all these Words, I shall give it you anon; only thus much may be agreed upon, that besides the Arch-bishops, Bi­shops, and Abbots, the chief or best Men of England were present and assisted at these Councils, and who, as appears by the Subscriptions to several Saxon Councils and Charters, were either the Ealdormen, who writ themselves in Latin, sometimes Sub-Reguli, but more often Duces, or Comites, of whom we have already spoken enough: But this I would have remembred, that the Office of Ealdormen not being then heredita­ry, it was bestowed for Merit; and Nobility by Blood was no necessary Condition to it, since their Places in this great Assembly were only ra­tione Officii, and not by Right of Inheritance as at this day.

THE next Order, whose Subscriptions we find at the Conclusion of such Councils and Charters,Thanes. are the Thanes; the highest Degree of which was called Thanus Regius, the King's Thane, because he held im­mediately of him; and tho I grant it answered the Title or Dignity of the greater Barons after the Norman Conquest, yet however nei­ther Mr. Selden, nor any other Learned Antiquary that I know of, does any where exclude the two other Degrees of Thanes, viz. the Middle and Lesser, from appearing, and having places in those great and gene­ral Councils, as well as the chief Thanes themselves.

AND besides these, we find at the end of several Charters, others who write themselves Milites, Milites. who, I suppose, ought to be rendered Knights; but whether they were Thanes that held by any Military Te­nure, or such as held their Lands in Allodio, that is, freely, under no Services, I will not here take upon me to determine.

THESE are the only Degrees mentioned at the end of those Councils and Charters above-mentioned.

BUT perhaps it will now be told me, that according to my own shewing, there were no Commons summoned to these Assemblies; since neither in the Titles before those Councils, nor at the Conclusions of them is there any mention made of this Order of Men now called Commons, distinct from that of the Bishops and great Noble Men; and therefore from hence Dr. Brady in his Answer to Mr. Petyt, Dr. Brady's Introduct. fol. 6, & 7. will have none but Bishops and great Noble-men to have had any thing to do there: and to make this seem the more plausible, he renders that great Council, where Plegmund Arch-bishop of Canterbury, Vid. Antiquit. Britan. Matth. Parkeri Ar­chiep. Cant. together with King Ed­ward the Elder presided, viz. CONCILIVM MAGNVM EPISCO­PORVM, [Page xci] ABBATVM, FIDELIVM, PROCERVM, POPVLORVM IN PROVINCIA GEWISORM, &c. in these words, A great Council of the Bishops, Abbots, Tenants in Capite or Military Service, Noble-men, and People in the Province of the West-Saxons.

AND here, before I go any further, I would desire the Doctor to answer these two Questions.

FIRST, By what Authority he here translates the word Fideles, Te­nants in Capite, or Military Service? since I am sure he is not able to prove from any History or Record, that this Tenure had any being in England at that time.

SECONDLY, How he can make it out, that the word Proceres al­ways signifies great Noble-men by Birth? without which Supposition all he is able to say on this Subject will fall to the Ground.

BUT the Doctor thinks he has a great Advantage from what Arch­bishop Parker says in the same Page;Dr. Brady, ut sup. EDWARDVS REX SYNO­DVM PRAEDICTAM NOBILIVM ANGLORVM CONGREGA­VIT, CVI PRESIDEBAT PLEGMVNDVS, i. e. King Edward cal­led the foresaid Synod of the English Nobility, wherein Plegmund presi­ded. Here he thinks he hath a strong hold, and therefore says, ‘That this Author tells us the meaning of the long Title of this Synod, which just before he had mentioned, viz. that the Bishops, Abbots, FIDELES, Proceres, & POPVLVS, were all NOBILES, NOBLE-MEN, that is, the Ecclesiasticks and Laicks, or the Bishops, and Lay-Nobility, and not the Vulgus, Commons, or ordinary sort of People.’

SO then, according to the Doctor's Construction, all the fore-going Relation of the Members of this Council was a jumbled heap of Tau­tologies, of Noble Tenants in Capite, Noble-men, and Noble People.

BUT I must needs acknowledg that he is so far in the right, that by these words Nobilium Anglorum, are not meant the vulgar, mean or ordinary sort of People, or the Mob, (as they are now con­temptuously term'd) for certainly they had never any thing to do in those August Assemblies: Nor does Mr. Petyt, or my self maintain any such thing; and yet for all this I think we may affirm, that all the Members that appeared there, were not Noble-men, or Great Lords only, in the sense they are now taken.

FOR to begin with the word Nobilis, Nobilis. which the Doctor so much in­sists on, it is his own too narrow Conception of that Title which has been, I think, one main Cause of the greatest part of the Quarrel be­tween Mr. Petyt and him; for in all the Counties of Europe, except England, it is very well known, that the word Nobilis includes not only Noble-men of Title, such as Dukes, Marquesses, &c. but also all Gen­tlemen of Families who are well born, and do not exercise Mechanick Trades. Thus Nobilezza in Italian, and Noblesse in French, compre­hends the less as well as the greater Nobility. So likewise the word Aedelmen, among the Germans, comprehends all sorts of Noble-men, as well those of Title as others,Tit. Ad [...]lingi, p. 10. which is owned by Sir H. Spelman in his Glossary in these words, Anglorum Legibus Adelingos dici pro Nobilibus in genere, qui omnes nobiles Aedelmen vocant, à Saxonico Aedel, nobilis. ‘And so it was here in England long after the Conquest, as well as before, when Knights and Gentlemen were reckoned inter Nobiles minores, be­fore the Title of Noble-men began to be appropriated to the higher Nobility or Peers only; which is also owned by Dr. Brady in his Preface [Page xcii] to his Compleat History, where he tells us of Lands held by Knights Service, as well in the Hands of the lower sort of Noblesse, as of the greater Noble-men.’

AND this being so, I shall easily prove, that all the rest of the words insisted upon by the Doctor, do not signify only great Lords and Noble­men by Birth:Proceres. To go on therefore to the next word Proceres, that nei­ther this does signify only Men Noble by Birth. Isidore (an antient Spanish Author) in his Origines, Lib. 9. cap. 4. says thus, Proceres sunt Principes Ci­vium, that is, the chiefest of Subjects or Citizens. And the Learned Du-Fresne also tells us in his Glossary,Page 420. Proceres appellabantur, qui in Civita­tibus praecipuos Magistratus gerebant; that those were called Proceres, who were the chief Magistrates or Rulers in Cities; and certainly these could scarce ever be Noble-men by Birth.

Primates.AND as for the word Primates, it signifies no more than Principal or Chief Men, however born; and that it was understood no otherwise among our English-Saxons, appears from Aelfric's Glossary above-men­tioned, at the end of Somner's Saxon Dictionary, where he renders the words Primates, vel Primores Civitatis, seu Burgi, by YLDEST BVRH­WARA, i. e. the Chief Magistrates in a City or Town, who were then Persons of very considerable Note in the Nation, as I shall prove further by and by.

Optimates.I come now to the word Optimates, which signifies no more than the better sort of Men, and not always Noble-men and great Lords, much less as confined to the King's Thanes, or Tenants in Capite only; since the same Du-Fresne in his Glossary defines Optimates to be Vassalli Barones, qui ab ullo Domino ratione Hominii nudè pendent, that is, the Feudatory Barons that meerly depend on any Superiour Lord by reason of their Homage; which tho spoken in relation to France five or six hundred Years ago, yet was certainly used in the same sense, and no otherwise in England, as well before as after that time, and did include all the Inferiour as well as Superiour Thanes, such as were the only Freeholders in those Ages.

[...]rincipes.BUT for the word Principes, he that understands any thing of the Latin Tongue, knows, that it doth not always signify Princes, or Men Noble by Birth, but any Chief or Principal Man, remarkable by Place, Office or Dignity; and therefore we often read in Livy, and other Latin Authors, of Principes Civitatis: and in the above-cited Laws out of Tacitus, de moribus Germanorum, it is plain, that the word Princeps, or Principes in the plural, signified no more than chief or considerable Men among the Germans, by reason of their Office, or present Dignities, without any respect to their Birth. And in this sense, I suppose, every Member of Parliament may at this day be reckoned inter Principes, among the most considerable or chief Men of the Kingdom.

BUT the Doctor lays a great stress upon a Passage out of two Manu­script Malmesburies, Dr. Brady's Introduct. fol. 7. one in the Bodleian Library, cited by Sir William Dugdale, and the other in the Treasury of the Records of the Church of Canterbury, cited by Sir Henry Spelman, who both report of this very Council, that Edward the Elder ‘Congregavit Synodum Senatorum Gentis Anglorum, cui praesidebat Plegmundus, &c. i. e. convened a Synod of the Senators (in Saxon the Aldermen) of the English Nation, that is, such as were usually called to such Councils, which were only the Nobiles and Great Men.’

[Page xciii]IN Answer to this I must refer the Doctor again to good old Livy, where he will find that the Roman Senators were not all Noble by Birth, for they were tàm Patricii, quàm Plebeii Ordinis.

BUT when Mr. Petyt cites William of Malmesbury, for calling a Saxon Wittena Gemote, Generalis Senatus & Populi Conventus, to distin­guish the lesser Nobility from the greater, the Doctor replies,Id. ibid. ‘There is no heed to be taken how our old Monks and Historians stiled the Saxon Wittena Gemotes, or their great and Common-Councils, for the same Authors expressed them sometimes one way, sometimes another; nor were they ever exact and curious in observing and no­ting the Title, or the Constituent Parts or Members of them.’

‘FROM whence I cannot but observe the Doctor's great Partiality for his own Opinion; for whenever William of Malmesbury in the Manuscript above-cited, mentions the word Senatores, it must with him immediately signify nothing less than Great Noblemen, or what we now call Peers; but when the same Author mentions the lower degree of Men (whom we now call Commons) as a distinct Order from the Great Lords, or Senators, then presently he is with the Doctor, a trifling old Monk, very little curious in observing the Constituent Parts or Members of our Saxon Great Councils.’

HAVING thus shewn some of Dr. Brady's erroneous and inconside­rate Glosses concerning the English-Saxon Nobility before the Conquest, which he vainly supposes to have been the same as it is at this day; I shall now endeavour to settle some truer Notions relating to those Great Councils, which as to the Lay-Members, besides the Ealdormen above-mentioned, I conceive, consisted of the whole Body of Thanes, or Free-holders, who were then all Gentlemen either by Birth or Estates; for I have already proved from the Laws of King Athelstan, that a meer Ceorl's Man, if he had purchased five Hides of Thane Land, did thereby become equal in all respects to a Thane.

NOW if the word Thane before the Conquest signified the same with the word Baro, which came into common use after that time, as Sir Henry Spelman and Mr. Selden both grant it did; and Mr. Camden in his Introduction to his first Edition of his Britannia in 4^o, is yet more express as to this word Baro, as you may see by this remarkable Passage; Verùm Baro ex illis nominibus videatur quae tempus paulatìm meliora, & molliora reddidit, nam longò post tempore, non milites, sed qui LIBERI erant DOMINI, & Thani Saxonibus dicebantur Barones vocari coeperunt, nec dum magni honoris erant, paulò autem posteà (viz. some time after the Conquest) eò honoris pervenit, ut nomine Baronagii Angliae omnes quodammodo Regni Ordines continuerentur: tho it must be confest that Mr. Camden, because he found this Passage had given some Offence to the higher Nobility, he in his next Edition in Folio, restrained it by adding the word Superiores before Ordines, as if none but the higher Barons might be thought to have once made part of the Baronage of the Kingdom. And likewise Sir Henry Spelman in his Glossary under the Title of Barones Comitatus, i. e. the Barons of Counties,Spelm. Gloss. tit. Barones Comitatus. (who are fre­quently mentioned in the Laws of our first Norman Kings) has this remarkable Passage, and he being so great a Man, I shall not offer to abridg it.

[Page xciv] HOC Nomine, scilicet, Barones Comitatus (saith he) contineri vide­tur Antiquis paginis, omnis Baronum feodalium species, in uno quovis Co­mitatu degentium: Proceres nempè & Maneriorum Domini, nec non liberè qui (que) Tenentes, hoc est, fundorum proprietarii, Anglicè FREEHOLDERS. —Notandum autèm est, liberè hos Tenentes, nec tàm exiles olìm fuisse, nec tàm Vulgares ut hodiè deprehenduntur: nam Villas & Dominia, in minutas haereditates nondùm distrahebant Nobiles; sed (ut vidimus in Hi­berniâ) penès se retinentes, agros per precarios excolebant & adscriptitios. Vid. LL. Edw. Confess. cap. 15. Quod per Hundredum colligerentur (46 Marcae) & Sigillo alicujus Baronum Comitatus sigillarentur, & ad Thesaurum Regis deportarentur. In Domesd. habiti sun [...] Barones Comi­tatus; Magnates & Nobiles, qui in Curiis praesunt Comitatuum, hoc est, ipsarum Curiarum Judices, quos Hen. 1. LL. suarum, cap. 30. esse liberè Tenentes Comitatûs demonstrat. Regis (inquit) Judices sunt Baro­nes Comitatus, qui liberas in eis terras habent, per quos debent causae singulorum alterna prosecutione tractari. Which I shall give you thus in English. ‘Under this Title of Barones Comitatus, seems to be contained in our antient Writers all sorts of Feudal Barons dwelling in any one County, viz. the chief Men and Lords of Mannors, as also all free Tenants, that is, Proprietors of Lands, in English, FREE-HOLDERS. And it is also to be considered, that these free Tenants were not antiently so mean and pitiful, as they are accounted at this day: For Gentlemen had not as yet parcell'd out their Town­ships and Lordships into small Estates, but (as we see in Ireland) keeping them themselves, by their hired Servants and Villains, hus­banded their own Lands. In the Laws of Edward the Confessor, cap. 15. it is appointed, that 46 Marks should be collected out of the Hundred, and sealed up with the Seal of one of the Barons of the County, and be lodged in the King's Treasury. In Dooms­day Book, those Noblemen and Gentlemen are called Barons of the County, who presided in County-Courts, that is, who were Judges of those Courts, whom Hen. 1. in the 30th Chapter of his Laws, shews to be the free Tenants of the County. The King's Judges, says he, are the Barons of the County, who have Freehold Lands in them, by whom the Causes of each of them ought to be tried and adjudged in their respective turns.’

‘AND there also immediately follows in the same Law of Henry the First, another Clause, whereby Villains, and all such mean and beg­garly Fellows, called there Cocsetti or Perdingi, are not to be reckoned amongst the Judges of the Laws; for they neither in the Hundred, nor in the County, forfeit their own Money, nor that of their Masters.’

THIS, I think, is sufficient to prove, that all such base and indigent People, such as Dr. Brady calls Tag, Rag and Bobtaile, were excluded from having any thing to do in these inferior Courts; and if so, then much more to be sure were they shut out of the most August Assembly of the Kingdom, the Wittena-Gemot, Mycel-Synoth, or what we now call the Parliament.

AND this I have brought to shew, that I do as much disown the Thoughts of introducing any Degrees or Orders of Men, (less than those of Quality or Estates) into the Great Councils of those Times, as the Doctor himself does.

[Page xcv]BUT in the first part of his Compleat History he asserts,Compleat Hist. Fol. 69, 70. that not only the King's Thanes, but also all the Middle and Lesser Thanes were both after, as well as before the Conquest, Military Men, who held their Lands by Military or Knight's Service, which he would prove from the Heregeat, or Heriots, that by the Laws of King Cnute, were to be paid to their Lords by their Heirs, in Horses and Money, and certain Arms. ‘Well, let this for once be admitted, but I would then have the Doctor never to urge Military or Knight-Service, as a Badg of the Norman Conquest any more; and in the next Treatise which he shall please to publish, I would desire him to make it out, that none but the King's Thanes, (who were all one with his Tenants in Capite, after the Conquest) had any Place in the Great Council of the Kingdom, for without this, he does nothing: yet thus much I must say for him, that in the beginning of his Answer to Mr. Petyt, Answer to Mr. Petyt's Rights of the Commons in Folio. p. 10. he seems to be somewhat more good-natured, making the Saxon Wittena Gemotes more large and diffusive; for in them he owns, were Arch-Bishops, Bishops, Masse-Thegnes, or Dignified and Great Clergy-Men, Aldermen, or Comites, King's Gereves or Praepositi, King's Thegnes, Thanes, or Ministers, his Counsellors, Judges or Magistrates.’ Where tho he confounds the King's Judges and Counsellors, (whose Presence there was not abso­lutely necessary, as not being any constituent Parts or Members there­of) with the Bishops, Aldermen, and Thanes, without whose Consent no Laws could be made; yet he grants us enough in reckoning other Thanes and Magistrates to have had Places there, besides the King's, and who I conceive had a Right to appear there without any particular Summons to each of them; and sure all these were not Tenants in Ca­pite.

NOW having laid down, and I hope established a true Notion what sort of Men then constituted the greater part of the Wittena-Gemotes of those Times; I come to the next Degree or Order of Men, who then most properly represented the Commons of England, Deputies of Cities and Great Towns. Procuratores. viz. the De­puties of Cities and Great Towns: and tho I confess these are not or­dinarily mentioned in any of the Antient Saxon Laws or Charters, yet that they were comprehended sometimes under the Title of Procurato­res, I am very well satisfied, as appears from the Annals In Bibl. Cot­ton. Tiber. C. 4. of Winchel­comb, wherein there is a Charter of Kenwulf King of the Mercians, bearing date Anno Dom. 811. where all the Orders of Men summoned to be present at that Assembly, are thus particularly recited by that King, viz. Merciorum Optimates, Episcopos, Principes, Comites, PRO­CVRATORES, meós (que) propinquos, nec non Cuthredum Regem Cantuari­orum, át (que) Suthredum Regem Oriental. Saxon. cum omnibus qui Testes nostris Synodalubus conciliabulis aderant.

NOW I would be gladly informed by any Man, well conversant in Antiquity, what the word Procuratores could here signify after Comites, unless it were the Deputies or Representatives of the Cities and Towns of Mercia?

THE like word is also found in a Charter of King Athelstan's, dated Anno 931. of certain Lands granted to the Abbey of Abington; which Charter is entred in the great Register that belonged to that Abbey, and is now in the Cottonian Library, and concludes thus,Claudius. B. 9. Cap. 5 [...]. Haec Charta in Villa Regali quae Aetwelope nuncupatur, Episcopis, Abbatibus, Ducibus, patriae Procuratoribus, Regiâ dapsilitate ovantibus perscripta est.

[Page xcvi]BY which Patriae Procuratoribus abovementioned, I know not what else can be understood, but the Deputies or Representatives of the Ci­ties and Chief Towns, who then sent Members to those General Coun­cils.

THO of what sort of Men these Procuratores or Deputies of Cities and Towns then consisted, I confess it is hard at this distance of Time to determine; when the Original Records of those Councils wherein they appeared are lost, and that we have so obscure a mention made of them in the Saxon Laws and Charters. But if I may take the Liberty to guess, there were not so many Citizens chosen for each City as at this Day; but only their Chief Magistrates, Rulers, or Aldermen, (which were single Persons, and not many, for there was then but one Alder­man in a Town) or else such as were called Port-Gerefas, (now Port-Reves in divers Places) who might appear for them of Course, or be constantly Chosen on purpose: but if the Charter of King Athelstan abovecited be true, (as I see no reason to question its Authority) it ap­pears, that the ordinary Boroughs were then represented by two Bur­gesses in Parliament, as at this Day.

BUT that these, as well as the Magistrates and most considerable Citizens might then all pass, and be included under the General Name of Witan, or Wites, called in Latin Sapientes, I have the Authority of the Learned Du Fresne, Tome 3. pag. [...]00. who in his Glossary assures us, that antiently among the Lombards, Sapientes in Italia appellabantur Civitatum Primarii, quorum consilio Respublicae gerebantur, i. e. that among the Lombards in Italy, the Chief Citizens were called Wise-Men, by whose Counsel publick Affairs were transacted: and for this he cites Hieron. Rubeus, who in his History of Ravenna under Anno 1297. hath this remarkable Pas­sage concerning these Sapientes; (says he) Sed longè anteà illud nomen obtinuit in aliis Longabardarum civitatibus, ut colligere licet ex Ottone, & Acerbo Morena in Historia Rerum Lundevetium; which Authority tho fetch'd as far as Italy, is very pertinent to prove the same Title to have been in use among the English Saxons of the same Age with the Lom­bards, since (as Grotius hath learnedly proved in his Preface to his Gothic History) the Lombards were but one Stirp or Tribe of those Antient Gothes, from whom (as I have already proved in the beginning of the third Book of this Volume) the English Saxons were also derived.

BUT that these Citizens of Cities, in those Times, might deserve the Name of Wites or Sapientes, as well for their Prudence as Riches, appears from the Charter of K. Edward the Confessor, in the great Chartu­lary of the Abby of Westminster, Faustina. A. 3. Fol. 97. now to be seen in the Cottonian Li­brary, which begins thus, Edward Cing gret Willem and Leodtan, & Aelfy Porte-Reven, and alle mine Burh-Thanes on LVNDEN Frind­lic; this tho Saxon, yet being so near the English of our own Times, I need not translate, only I desire the Reader to take notice, that the Citizens of London were then so considerable, as in this Charter to have had the Title of Thanes, as they were often called Barones de London in our Antient Historians after the Conquest.

AND as for the City of Canterbury in those Times, it had not only a Chief Magistrate, called in Latin Praepositus, in Saxon Port-Gerefa, as Mr. Somner in his Antiquities of Canterbury informs us;Pag. 64, 65. but also in the same Place he has given us a Saxon Deed, written some Years before the Conquest, and containing an Exchange of certain Lands and Houses in [Page xcvii] that City, made between the Family, (i. e. Monks of the Cathedral Church) and the Crihtan of that City, being Merchants or Chapmen; and you have already seen, that a Merchant having thrice passed the Seas, was accounted equal to a Thane: and can any one then reasonably doubt, that Persons of that Wealth and Dignity were not capable of being chosen Representatives of their Cities, in the Saxon Great Councils?

NOR can I forbear citing, before I close up this Subject, that re­markable Authority out of In Bib. Cot­ton. Fausti­na. A. 3. Sulcardus's Manuscript Chartulary of the Abby of Westminster, where there is entred a Charter of King William the First, bearing date An. Dom. 1071. And after the King had subscribed his own Name to it with the Sign of the Cross, there are added many of the Bishops, Abbots, and Temporal Nobility; and then instead of cum multis aliis, this Clause is subjoined, viz. In the Mar­gin of the Book there is this Note in a more Modern Hand, Nota hic, hos omnes convo­cari à Rege suâ Auctori­tate, ad causas Religionis tractandas, tàm nobiles de clero quàm Principes Reg­ni, cum aliis inferioris gradus; con­ventio quo­rum videtur esse Parlia­mentum: from whence it ap­pears, that this Notator took this Assembly for a Parlia­ment of those Times. Multis praetereà illustrissimìs Virorum personis, & Regni Principibus diversi Ordinis omissis, qui huic Confirmationi piissimo affectu Testes & Fautores fuerunt: Hii autèm illo tem­pore à Regiâ potestate è deversis Provinciis & Vrbibus, ad Vniversalem Syno­dum pro causis cujuslibet Christianae Ecclesiae audiendis & tractandis, ad prae­scriptum Celeberrimum Coenobium, quod Westmonasterium dicitur, convo­cati. i. e. ‘Besides many other very Eminent Persons and Chief Men of the Kingdom of divers Orders being omitted, who with most pious Affection, were Witnesses and Approvers to this Confirmation; and these were summoned at that Time by the Royal Authority, from divers Provinces and Cities, to the General Synod held at the Famous Abby of Westminster, for the hearing and determining of the Causes of each Christian Church.’

‘THIS is an Authority which seemed so convincing, that Sir William Dugdale hath made use of it in his Origines Juridiciales, to prove the Antiquity of the Commons of England in Parliament; yet Dr. Brady in the Conclusion of his Answer to Mr. Cook's Argumentum Antinormani­cum, accuses that Gentleman of being both Ignorant and Mistaken in the meaning of Cities and Provinces, and the Persons that came from them, whom he indeed would have to be not any Representatives of Counties and Cities, but only Deans, Arch-Deacons, and other dig­nified Persons and Church-Officers, as well of the Laity as Clergy, who were summoned by the King to this Synod, from Provinces and Cities, to advise and inform the King of the Conveniency of the Places, whither the Bishops Sees then about to be removed from Villages to Cities, were to be transferred.’

BUT since there is not one word in this Charter said of any such Thing, and that Sir Henry Spelman in his Glossary renders the word Provincia for a County, and not a Bishop's See; I my self not now having leisure to pursue such Niceties, shall refer the Curious for their farther Satisfaction to the eighth Dialogue of Bibliotheca Politica, Bibliothec. Politic. pag. 567, 568. where they may read whatsoever he has said against it sufficiently answered.

THESE are the only Authorities I shall make use of at this Time, to prove that the Cities and Boroughs had then their Delegates or Re­presentatives in the Saxon Witena-Gemotes.

I will now conclude this Point with the Judgment of that Learned Antiquary Mr. Lambard, Archeion. p. 256, 257, &c. who certainly understood the Constitution of this Antient Government, as well at least, if not better, than Dr. Brady; and he tells us,

[Page xcviii] ‘THAT whereas in the beginning of each Law, (viz. those made by the Saxon Kings he there mentions) all the Acts are said to pass from the King and his Wise Men both of the Clergy and Laity, in the Body of the Laws, each Statute being thus, And it is the Advice of our Lord, and his Wise-Men: So as it appears that it was then a re­ceived Form of Speech, to signify both the Spirituality and the Laity (that is to say, the greater Nobility, and the less, or Commons) by this one word Witan, i. e. Wise-men.’

‘NOW as those written Authorities do undoubtedly confirm our Assertion of the Continuance of this manner of Parliament, so is there also unwritten Law or Prescription, that doth no less infallibly uphold the same. For it is well known, that in every Quarter of the Realm, a great many Boroughs do yet send Burgesses to the Parlia­ment, which are nevertheless so Of which sort are Gatton in Surrey, besides several Bo­ro [...]ghs in De­vonshire, Com [...], and other Cou [...]i [...]s. antient, and so long since decayed, and gone to nought, that it cannot be shewed, that they have been of any Reputation at any time since the Conquest, and much less that they have obtained this Privilege, by the Grant of any King suc­ceeding the same. So that the Interest which they have in Parliament groweth by an antient Usage before the Conquest, whereof they cannot shew any beginning: which thing is also confirmed by a con­trary Usage in the self-same thing; for it is likewise known, that they of Antient Demesne, do prescribe in not sending to the Parliament, for which reason also they are neither Contributors to the Wages of the Knights of Shires, neither are they bound by sundry Acts of Par­liament, tho the same be generally penn'd, and do make no Exceptions of them. But there is no antient Demesne, saving that only which is described in the Book of Doomsday, under the Title of Terra Regis, which of necessity must be such as either was in the Hands of the Conqueror himself, who made the Book, or of Edward the Confessor, that was before him. And so again, if they of antient Demesnes have ever since the Conquest prescribed not to elect Burgesses to Parlia­ment, then (no doubt) there was a Parliament before the Conquest, to the which they of other Places did send their Burgesses.’

I shall here crave leave to add one Record, tho after the Conquest, in Confirmation of what Mr. Lambard hath here learnedly asserted; for that several Boroughs claimed to send Members to Parliament by Pre­scription in the beginning of the Reign of Edward the Third, appears by a Rot. Pat. 17. Ed. 3. pars 1. m. 20. Petition put in to that King An. 17 Edw. 3. wherein the Burgesses of the Town of Barnstaple in Devonshire, set forth, that it being a free Borough, had by Charter from King Athelstan, among other Privileges, a right of sending two Burgesses to all Parliaments for the said Borough; upon which the King and his Council ordered a Writ of Inquiry, which certainly would never have been done, if Dr. Brady's Notion were true, that the Cities and Boroughs never sent any Representatives to Parlia­ment but once in the 49th of Hen. 3. and then no more till the 18th of Edward the First, which was but a little above 50 Years to the time of this Petition, which being within the Memory of so many then living, the King and his Council would never have ordered a Writ of Inquiry about such a vain and idle Pretence.

FROM all which, I think, it may safely be concluded, that this Learned Antiquary above-mentioned, I mean Mr. Lambard, did not without good Authority believe, that not only the Great Lords or Peers, [Page xcix] but also the Inferiour Nobility, and Representatives of Cities and Towns, were included under the word Witan; and likewise that those Places claimed that Privilege by Prescription.

I shall therefore desire the Doctor, that when he writes next upon this Subject, he will please to crave in Aid some Gentlemen of the Long Robe of his Opinion, to help him to answer this Argument of Mr. Lam­bard from general Prescription; as also what hath been already said concerning this matter in the same Dialogue of Bibliotheca Politica above-mentioned, beginning at pag. 483, and ending at pag. 593, inclusively: and if he can then with his Assistances prove all our antient Lawyers to have been mistaken in this memorable Point, I shall own my self to have been so too. But I desire this may be taken notice of, that no Prescription whatsoever in Law can be laid of later Date, than the first Year of King Richard the First, which began almost fourscore Years before the 49th of Hen. 3. when he fancies the Commons were first summoned to Parliament.

BUT that I may be as brief as I can, I shall reduce what I have further to say upon this Head, to a few Queries. As,

FIRST, Whether in all the Kingdoms of Europe of the Gothic Mo­del, beginning with Sweden and Denmark, and ending with Scotland, there can be shewn any of them wherein the Cities and Great Towns, either had not, or at least not till of Modern Times, their particular Re­presentatives in the Common Councils, or Assemblies of the Estates in those Kingdoms?

SECONDLY, Why in England alone, whose King was not more Absolute than in other Neighbouring Kingdoms, and which was framed after the same Gothic Constitution, its Cities and antient Boroughs (which were in those Times very considerable for Strength, Trade and Wealth, and guarded by so many Laws made in the Saxon Times) should not be thought considerable enough to have any Delegates in the Common Council of the Kingdom, till so long after the Conquest, as the 49th of Hen. 3. which (if we may believe the Doctor) was also intermitted from that time for above the space of twenty Years, till the 18th of King Edward the First?

BESIDES which, I would also propose these farther Queries concern­ing the Antiquity of the Commons in general. As,

FIRST, If Clerus and Populus signify in our Antient Authors the Clergy and Laity, which the Doctor asserts, and I will not oppose; then I would ask him, why (the same word Clerus including the infe­riour Clergy, viz. Deans, Arch-deacons, &c. as well as the superiour, viz. Arch-bishops and Bishops, &c. assembled in our Great Councils or Synods) the word Populus must not be allowed the same Latitude of Signification, and extend to the Gentry, or less Nobility, together with the chief Citizens and Burgesses, by a like Parity of Reason? un­less he can make it out, that Clerus must be understood in a very compre­hensive sense, and Populus in a very contracted and narrow one, only to mean Great Lords and Noblemen of the higher Rank.

SECONDLY, I would desire to know of him what the words Po­pulus and Populi shall signify, when put after and distinct from the words Proceres, Optimates, Senatores, or Senatus, &c. when these words oc­cur in several antient Charters of our English-Saxon Kings, as well as [Page c] Historians that make any mention of the Great Councils, unless they mean the People or Commons distinct from the Great Lords? Of which I shall here set down a few Instances out of many, both from Charters, Laws and Historians.

THE first whereof is found in the Charter of King Ethelred, con­taining a Grant and Confirmation of several great Privileges to the Mo­nastery of Wolverhampton, Vid. Monastic. Anglican. vol. 1. fol. 988. col. 2. which concludes in these words, Haec De­creta sunt Sigerici Archiepiscopi in placito coràm Rege Ethelredo, & Ebo­racensi Archiepiscopo, & omnibus Episcopis, Abbatibus Regionis Britanniae, seu Senatoribus, Ducibus, & Populo Terrae.

THE next is, the third Charter of King Edward the Confessor to the Abbey of Westminster, made in a Great Council of the Kingdom, which was held in the last Year of his Reign,Vid. Spelm. Concil. f. 625. and concludes thus, Hanc igitùr Chartam meae Donationis & Libertatis, in die Dedicationis praedictae Eccle­siae, recitari jussi, coràm Episcopis, Abbatibus, Comitibus, & omnibus Opti­matibus Angliae, omníabque; Populo audiente & vidente.

NOW from both these Charters it seems evident, that by the word Populus, the Representatives of Cities and Boroughs are here meant and understood, who were present at the sealing of them, as well as the greater Nobility, viz. the Senators, Ealdormen and Earls, and the lesser Nobility, viz. the Thanes, or Freeholders, included under the Title of Optimates, since the meer Vulgar or Mob could never be ad­mitted into the Place of the Great Council as Witnesses to the solemn reading and sealing of those Charters.

MY third Instance shall be that famous Law concerning the Grant of Tithes by King Ethelwolf, Anno Dom. 855. which is cited in the Lamb. LL. Edw. Regis, cap. 8. Laws of Edward the Confessor, and confirmed by King William the First, un­der the Title de Apibus, & de aliis minutis Decimis, wherein it is thus expressed, Haec (scilicet, these Tithes) concessa sunt à Rege, Baronibus, & Populo. Here it is plain, that the word Populus must signify a di­stinct Order or Degree of Men from that of the Barones.

THIS Law of King Edward the Confessor being urged by Mr. Petyt in his Rights of the Commons asserted, the Doctor passes over in si­lence; but when the ingenious Author of Argumentum Anti-Norma­nicum, makes use of the same Authority, the Doctor can no longer contain himself,Answer to Ar­gument. Anti- [...]orman. fol. 297. but in his Answer to that Book, tells him (after an insulting diminutive Reflection upon his Person) that, ‘He thinks this Law was made in King Edward's days, and was piping-hot when the Conqueror came in, but (he says) it will prove otherwise upon Examination of it, and also doubtful, whether there was ever such a Law or not made by a Saxon Monarch or King.Lamb. ibid. For after the Law hath enumerated the manner of Tithing in very many things both great and small, requiring an exact Tenth to be paid for most of them; it says, That he which detains the Tenth, if need be, may be forced to Payment by the Justice of the Bishop and King; and then immediately follow these words, Haec autèm praedicavit Beatus Augustinus, & concessa sunt à REGE, BARONIBVS & POPVLO: Sed posteà Instinctu Diaboli multi eam (viz. decimam) detinuerunt, &c. These things St. Augustine preached up, and they were granted by the King, Barons and People, &c.’

THE rest of the Latin he there cites being not to the Point in Dis­pute, I pass over; yet I cannot but observe, that from hence the Doctor [Page ci] believes he hath got a notable Advantage over him, for he thus pro­ceeds.

‘HENCE 'tis evident, that these Concessions of Tithes were made in the time of St. Augustine, Arch-bishop of Canterbury, sent hither from Rome in the Reign of Ethelbert King of Kent; for the words, & concessa sunt à REGE, BARONIBVS ET POPVLO, can relate to no other than the words immediately preceding, haec enim praedi­cavit Beatus Augustinus. And the words next following them do al­so prove the same; sed posteà Instinctu Diaboli, Multi eam detinue­runt, &c. which was after they were granted by the King, Barons, and People: so that this was at most but the Confirmation of a Law made by King Ethelbert; and how, and by what words the Legisla­tors were expressed near 500 Years after the Law made, and how they were rendred in Latin after the coming in of the Normans, tran­siently and without Design to give an Account of them, cannot be of much Value to prove who they were; and that the Laws of King Edward were made, or at least translated into Norman Latin after the Conquest, appears by the words, Comites, Barones, Milites, Servi­entes, Servitium, Villanus, Catalla, manutenere, all Norman words, and not known here till their coming hither. He that will assert any thing from a single uncouth Expression in one Case, and upon one Occasion only, brings but a slender Proof for what he says.’

THESE are the Doctor's own words which I have transcribed al­most Verbatim, that I may do not prejudice to the Force of his Argu­ment, which in short depends upon this single false Supposition, viz. that the Compiler or Drawer up of King Edward's Laws, imagined that this Law concerning Tithes was made by King Ethelbert, and was af­terwards confirmed by King Edward near 500 Years after the Law was made, when none could tell by what words the first Legislators were express'd.

BUT if this now should happen to prove otherwise, all that the Doctor has said on this Subject will by an unlucky Mischance fall to the Ground.

AND I shall shew here, that first of all his Argument is not cogent, that because the words, & concessa sunt à Rege, Baronibus & Populo, immediately follow those aforegoing, viz, Haec enim praedicavit B. Au­gustinus; therefore this Law could be made by no other than K. Ethelbert, since the words are put indefinitely, without mentioning any King in particular.

FOR St. Augustine might preach up Tithes, and yet the Law where­by they were given to the Clergy might be made many Years after; and that this was so, will appear by a brief History of the Matter of Fact. For first there is not, (nor I believe ever was) any Law extant of King Ethelbert concerning Tithes, nor is so much as mentioned by any Writer or Historian that I know of: the first Law, or Canon we find for the paiment of them, being that of the Council or Synod of Cal­cuithe, held under King Offa, Anno Dom. 536. and which, either be­cause it was only an Ecclesiastical Canon, or else because it was not made in a General Council of the whole Kingdom, was not of any U­niversal Obligation, (at least as a Temporal Law) before that famous Grant of Tithes made by King Ethelwolf upon his going to Rome, and confirmed as a General Law at a Council held at Winchester after his re­turn, [Page cii] Anno Dom. 855. and at which not any of the Bishops and Great Lords were present, but an infinite Number of other faithful Subjects, (or Commons as we now call them), I shall shew more at large by and by; and to this, and not to any Law of King Ethelbert's, I doubt not but the Compiler of these Laws of King Edward had respect, when he tells us that Tithes were granted A REGE, BARONIBVS, & PO­PVLO, that is, by the King, Barons, and People of all England, and not by those of one petty Kingdom, (as Kent was in the Time of King Ethelbert) whose Laws could never oblige the whole English Nation; and therefore the words that follow, viz. sed posteà, &c. must also refer to the Time of making this Law by King Ethelwolf, and not to this ima­ginary Grant of King Ethelbert, which the Compiler of these Laws knew nothing of.

THIS being so, I think all the rest the Doctor says signifies but lit­tle; for he is much mistaken notwithstanding he so positively affirms, that all those words he there mentions, were not known here till the coming over of the Normans; since he might have found, if he had pleased, the words Comes and Miles in the singular Number in the Sub­scriptions of divers Charters and Laws before the Conquest, and the word Comites in the Body of the very Charters themselves; for which I shall only refer him to the first Volume of Sir Henry Spelman's Coun­cils, as well as those in Monasticon Anglicanum.

Baro.AS for the word Baro, I grant it did not come into Common or Le­gal use till after the Time he mentions; yet that it was sometimes used before, I shall refer him to Asserius his Annals, which however it was continued by another Hand till the beginning of the Reign of K. Edward the Elder, yet that it was wrote before the Conquest, there is no doubt to be made of it; and in the very last Page of those Annals he may find the Names of the Barones Normannorum, (as he calls them) who are there related to have been slain.

Villanus.AS for Villanus used for a Ceorle's Man, or Country-Man, you may see an Example of the use of that word in King Athelstan's Law above-cited: and the Doctor himself mentions Terra Villanorum, i. e. Lands of Villanes or Villagers before the Norman Times.Compleat Hist. p. 67.

AND as for the rest of the words, viz. Servientes, Servitium, Ca­talla, and Manutenere, I confess they are not to be met with in the Latin Versions of the Saxon Laws made before the Conquest; but I would fain know why they might not have been in use before that Time, tho they are not there mentioned? I am confident no impartial Reader will grant that a Negative Argument is any good Proof to the contrary.

BUT should I own that the words (Barones, and all the rest of them there cited by the Doctor) were not commonly in use till after the Con­quest, yet that would do him but little Service; for admit that this Law was only briefly recited by the Collector of them in the Form there set down, it will be all one, for the People or Commons were repre­sented in the Time of Henry the First, (when these Laws were drawn up in the Form we now have them) or else they could never have been mentioned in this Law as a distinct Order of Men, by a Writer who certainly lived long before the 49th of Henry III. since this Law is found thus worded in Roger Hoveden's Copy of King Edward's Laws, which was written by him (being Secretary to Henry II.) above a hundred Years before the Commons (according to the Doctor's Hypo­thesis) [Page ciii] were ever heard of: So that unless he can prove that Henry III. was before Henry II. I think he will but Aethiopem lavare.

BUT indeed if this single uncouth Expression (as the Doctor calls it) had been found in one Case, and upon one Occasion only, I confess it might have been as slender a Proof as he would have it: but when I have not only given him frequent Instances of the use of this word in our Anti­ent Charters and Laws, as contradistinct from all the rest of the Orders abovementioned, I think that Pretence will stand him in little stead; and if these are not yet sufficient, I will superadd a few more from our Antient Historians to the same purpose.

FIRST, From William of Malmesbury and Henry Huntington, who both agree almost in the same words, concerning the Deposition of Si­gebert King of the West-Saxons for Tyranny and Cruelty, Anno 754. Huntington expresses it thus, viz. Sigebertus Rex in principio secundi Anni Regni sui, cum incorrigibilis Superbiae & Nequitiae esset, congregati sunt PROCERES & POPVLVS totius Regni, & providâ Deliberati­one Omnium expulsus est à Regno. Kinewulf verò Juvenis egregius de Regiâ stirpe, ELECTVS est in Regem.

SECONDLY, From Ailred Abbot of Rievalle, who in his Life of Edward the Confessor, giving an Account of the manner of that King's being Elected in his Mother's Womb, tells us,Decem-Scrip­tores, fol. 372. that Ethelred his Father having convened a Great Council for the appointing a Successor, pro­ceeds thus; Fit Magnus coràm Rege Episcoporum, Procerúm (que) Conventus, Magnus Plebis Vulgì (que) Consensus. Wherein he makes a plain Distinction between the Assembly of the great Noble Men, or Proceres, from the Consent of the Commons here, called Plebs and Vulgus.

AND tho I grant with the Doctor, this Story of King Edward's Election in his Mother's Womb to have been but a Fiction; yet it is certain, that this Abbot then spoke according to his Belief of the man­ner of Electing a King in those Times, and truly sets down the Parties whose Presence and Votes were necessary for the compleating of such an Election, or else he must have spoke as much by way of Prophecy concerning this Matter, as King Ethelred and the Estates of the King­dom had done about K. Edward's being Elected in his Mother's Womb. And the Reader may remember that these Authors abovecited, lived and wrote many Years before the 49th of Henry III. when the Doctor supposes the Commons were first summoned to Parliament; and there­fore could not be corrupted with the Notions (not to say Prejudices) of those who wrote after that Time.

BUT I know the Doctor has a Subterfuge, as he thinks for these plain and full Authoriries, and that is, that by the Populus, Plebs and Vulgus mentioned as you have heard, the King's Thanes, or less Barons as they were called after the Conquest, who were all Tenants in Capite, are hereby only to be understood; and that no other but they had any Right to be present, and vote in the Great Councils of the Kingdom; and this he has endeavoured to make good in his Answer to Mr. Petyt's abovesaid Treatise.

BUT since the Doctor's Authorities do there relate to the Times after his Conquest, (concerning which I shall not now say any thing) I will content my self at present with asking him only these two Questions▪

[Page civ]FIRST, How he will prove, that none but the Persons he there men­tions, appeared in those Councils, since we cannot trace any Footsteps in our most Antient Laws or Historians of his Tenants in Capite, being the only Constituent Parts of the Saxon Witena-Gemotes?

‘AND it was indeed very unlikely they should, if we consider the many Free-Tenants who before the Conquest held in Allodio without any Military Services;Tit. Alodium. and this, as Sir Henry Spelman well observes, was opposed to Feud or Fee, in the Antient Version of King Canutus his Laws,Cap. 75. where it is called in Saxon, Bockland; and in the Laws of King Alfred, Terra Haereditaria, Cap. 36. and seems to be the same with our Fee-Simple, which might be made over to Strangers without any Li­cence from the Lord of whom such Land was held.’

OF which sort of Men there is also frequent mention in Doomsday Book, under the Title of Alloarii and Allodiarii, and of whom it is there also often said, Potuit ire cum terrâ quo voluit, or potuit se vertere ad a­lium Dominum. Of these there were certainly many more before the Conquest than afterwards, when I own the greatest part of the King­dom was in a few Years parcell'd out into Knights Fees.

SECONDLY, I desire to be informed how our Great Councils could consist of such a multitude of Persons, as I find in Antient Charters and Historians to have appeared at those Assemblies, not only before, but long after the Conquest? But of the Period before that Time, (and which I treat of in this Volume) I shall give these remarkable Instances.

THE first is out of an Antient Manuscript in the Cottonian Library, concerning the League between Alfred and Godrun the Dane, Sub effigie Claudii, D. 2. F. 8. which be­gins thus, Circà Annum Salvatoris nostri DCCCLXXVI. in Magno Con­cilio sive Mycel-Gemot, Aluredus Rex Anglorum & Godrunus Rex Anglo-Danorum, & Omnes Angligenae Sapientes, & omnis populus qui in Anglia mansit, Pacis agenda sive foedus constituerunt, & Juramento confirmaverunt pro seipsis & Junioribus suis Ingenitis. Wherein this is worth obser­ving, that by the Angligenae Sapientes here mentioned, the greater Wites or Noblemen are understood, and by Populus, the Representatives of the inferior People or Commons.

THE next is, that at the end of King Ethelwolf's Charter of Tythes, Anno 855. where you will find after the Subscriptions of the Bishops, Earls and other Great Men,Vid. Spelm. Co [...]cil. f. 350. or Thanes, to this Law, these following Parties are mentioned, Aliorúmque Fidelium infinita Multitudo, qui om­nes Regium Chirographum laudaverunt, Dignitates verò sua Nomina sub­scripserunt.

FROM whence you may observe, that tho only the Dignified Per­sons subscribed their Names, yet all the rest of this Multitude had a Right to approve, and give their Consents to what was there transacted: But it cannot be imagined, that this Charter would ever take notice of the Approbation of the meer Rabble without, however they might shew a Joy and Satisfaction at what was there done by their Hollowing and Shouting.

AND this I conceive to be the Reason why these Councils often met in the open Air, when the Weather would permit, because no one Room could easily hold them; as appears by the Conclusion of King Edgar's Charter to Ely Abby, bearing date at Wulsamere, An. Dom. 970. Apud Wlsamere (says the Record) non clàm in angulo, Charta antiq. in Turri Lond. B. sed sub Dio, pa­làm evidentissimè, scientibus totius Regni mei Primatibus; who were not [Page cv] only Primates Rega, the King's Tenants in Capite, but Primates Regni, the principal or most considerable Men of the Kingdom.

I could give several more Instances to prove, that our Antient Witena-Gemotes consisted of a much greater number than the Doctor's Tenants in Capite, which in the time of his Conqueror were not five or six hun­dred Persons, and might not be half that number in the time of Edward the Confessor. But since the rest of my Authorities fall out in the fol­lowing Period, I shall reserve them to the next succeeding Volume. These are sufficient I think, to make out that long before the time the Doctor allows, the Commons had their Representatives in the Great Coun­cils by those of their own Order; but whether by Knights, Citizens and Burgesses, as now at this day, I do not affirm.

BUT to pass from Charters to the Laws themselves, that prove the English-Saxons Witena Gemotes, to have then consisted of a great mul­titude of People, I shall only instance in the famous Charter of Athel­wolf's concerning Tithes, Anno Dom. 855. which being confirmed into a Law at the Common-Council at Winchester, there is both in the Copy of this Charter in Ingulph, as also in that in Sir H. Spelman's first Volume of Councils, this Conclusion (after the Subscriptions of Arch-bishops, Bishops, Earldormen, and others) in these words, Aliorum (que), Fidelium infinita multitudo, qui omnes Regis Chirographum laudaverunt, Dignitates verò sua nomina subscripserunt, i. e. there were besides a great multitude of faithful Subjects, who all approved of the Royal Subscriptions; but the Dignities, i. e. the dignified Persons alone subscribed their Names.

NOW I would fain be satisfied from the learned Doctor, or any other who shall next undertake this Controversy, who this infinita Fi­delium multitudo were, that are here said to have approved of this Charter, unless they were the whole Body of the inferiour Nobility, or Freeholders of the Nation, together with the Deputies of Cities and Boroughs, on whose behalf the Dignities are said to have subscribed their Names? since it had been very ridiculuos for this Charter to have mentioned the Assent or Approbation of the Mob, or meer Vulgar that only looked on at this Assembly, or to have taken particular notice that these had not subscribed their Names, but only the Persons of great Dignity.

I come next to consider in whom the Legislative Power, or that of Enacting and Repealing Laws, did then as well as now consist.

‘Dr. Johnston in his Excellency of Monarchical Government, Chap. 24. and other high Assertors of the Royal Prerogative, think they have done enough to prove, that the Power of enacting Laws resided wholly in the English-Saxon Kings; and for this they cite the Vid. LLeg. Regum Inae, Aelfredi, Ae­thelstani, Ed­gari, &c. Vid. Spelm. Concil. vol. 1. fol. 552. Titles or Pre­faces to several Laws, wherein the King by the Advice of his Bishops, and Wites, or Wise-men, strictly charges and commands such and such Laws to be observed; and sometimes he does it in his own Person without mentioning any of them, as may be seen in the Preface to the Laws of King Cnute, and other Places.’

I shall not dispute the Truth of any of the Authorities these Gentle­men produce, but freely confess that the King, as Head of the Body Po­litick or Common-weal, is often mentioned, as if he himself made such and such a Law; as we say at this day the Statutes of King Charles the [Page cvi] First, or Second, tho every body knows that those Laws were enacted with the Consent and Authority of Parliament.

SO under our English-Saxon Kings, tho the King's Authority gave Sanction to the Law, and he might propter Excellentiam Personae, fre­quently bid and command in his own Person, yet it was still in such a manner as was consistent with the settled and received Constitution of the Kingdom, which I dare maintain hath not been altered in this Point since that time. Some few Authorities of this sort I will here set down, collected out of the same Books these very Gentlemen have made use of, to which I will also add some antient Charters of indisputable Credit.

THE first shall be from the Laws of King Ina, which you may see in the Preface to Sir Henry Spelman's Councils,Tom. 1. fol. 219. where in a Mycel Synod several Ecclesiastical as well as Civil Laws were made to these ends, viz. ad Concordiam publicam promovendam, per Commune Concilium, & Assen­sum Episcoporum, Principum, Procerum, Comitum, & omnium Sapientum Seniorum, & Populorum totius Regni. And as for the Conclusions of King Alfred's Laws, which Pag. 193. Dr. Johnston urges for the King's sole Power in making Laws; they rather make against than for his Opinion, for he there shews us, that this King having commanded his Laws to be written, those that he liked not, he with the Council of his Wites re­jected, and those he liked, he bad, or commanded to be holden; where I desire the Reader to take notice, that he neither rejected nor command­ed these Laws, but MID MINRA WITENA GETHEAT, in Saxon, that is, with the Consent of his Witena, or Council of Wise-men, whose Consent and Approbation was certainly necessary in those Laws, as appears by these very words at their Conclusion, which the Doctor himself hath thus translated out of Saxon; I Alfred King of the West-Saxons, shewed all these (Laws) to all my Wites (i. e. Council of No­bility, or Wise-Men) and they said they all liked (or were pleased) they should be holden.

AND that the Saxon word GETHEAT signifies somewhat more than bare Counsel or Advice, you may see in the Title to King Athelstan's Laws,Vid. Chronic. Brompt. fol. 848. which is thus, Haec sunt Judicia quae Sapientes Exoniae, Consilio Adelstani Regis instituerunt, & iterùm apud Fueresham, & tertiâ vice apud Thundresfeldium, ubi hoc definitum simul & confirmatum est.

HERE you may observe, that the Sapientes, the Wites, or Wise-men, are said to institute or make these Judgments or Laws by the Advice of the King, and not He by theirs.

THIRDLY, I will present you with the Title of King Ethelred's Laws,Brompt. ut supr. col. 893, 894. (as you may see in the same Author) and there we meet with these words, Hoc est Concilium quod Ethelredus Rex, & Sapientes sui condixe­runt ad Emendationem & Augmentum Pacis, omni Populo apud Wode­stocam in Mercena Landa, id est, in terra Mercenorum.

FOURTHLY, To another Body of Laws made by the same King Ethelred, Idem fol. 895. you will find this Title, Hae sunt Leges quas Ethelredus Rex, & Sapientes sui constituerunt apud Venetyngum, ad Emendationem Pacis & Faelicitatis Incrementum.

BY these two last Titles prefixt to King Ethelred's Decrees, the Rea­der may please to take notice, that Concilium in the first of them does not there signify barely Advice or Counsel, (tho if it did only do that [Page cvii] it would make but little to these Gentlemens purpose) but it must (and can do nothing else here than) intend and mean the Laws and Statutes which were made in this Great Assembly, not by King Ethel­red alone, but by him and his Wise-men: this you find in both of them; for what is called Concilium in the former, the latter Title calls Leges, and were all enacted by the joint and unanimous Consent of the King and his Great Council.

I shall now proceed to give you a few Instances from antient Charters: And the first is that out of the great Register of Abingdon above-cited, which being thus,Bibl. Cotton. sub Effig. Claud. B. 9. cap. 31. Ego Ecberht Rex Occidentalium Saxo­num cùm Licentia & Consensu totius Gentis nostrae, & Vnanimitate om­nium Optimatum, &c.

FROM whence I shall observe, that as antient as the time of King Egbert, the whole English-Saxon Nation, as well as the chief Men of it, are said to give not only their Consent, but their License to this Char­ter, without which the Authority of the King, and the Unanimity of these chief Men would have signified little.

THE second Charter is that of King Cnute to the Abbey of Briadri­cesworth (afterwards called St. Edmundsbury) now in the Office of the King's Remembrancer of the Exchequer, the beginning of which runs thus, Rot. Cart. 4. E. 3. m. 24. n. 58. Ego Cnute Rex totius Albionis Insulae, & aliarum Natio­num plurimarum, in Cathedrâ Regali promotus, The same Ex­pressions as to the enacting part, as well as all the Parties that gave their Assent, you may also find in K. Edward the Confessor's last Charter to the Abby of West­minster. vid. Sir Hen. Spel­man's 1st vol. of Councils, ad finem. cum Concilio & Decreto Archiepiscoporum, Episcoporum, Abbatum, Comitum, aliorúm (que) omnium Fidelium elegi sanciend.

THIS Charter is the more remarkable, because made by a Prince who came in partly by Force, and therefore one might have thought he would have exerted a more absolute Power in making Laws by his sole Authority; and yet we find him so far from pretending to do that, that he grants this Charter not only by the Consent, but by the Decree of the Arch-bishops, Bishops, Abbots, Earls, and all his other faithful Subjects; which word (in the Latin, Fideles) tho Dr. Brady understands it only of Military Tenants in Capite, yet I doubt not but it is there to be taken in a much larger sense, and must compre­hend all the lesser Thanes, or Freeholders above-mentioned, as also the Deputies or Representatives of Cities and Towns: of which Fideles Sir Henry Spleman understands omnes qui in Principis alicujus ditione sunt, vulgò subjecti: Hi sunt qui in Historiis dicuntur Fideles Regis. And also in the same sense it is to be understood in the Oath of Fidelity taken antiently in the Court-Leets, as the same Author shews us,Spelm. Gloss. f. 225. col. 1. Tu J. S. jurabis quod ab ista die in anteà, eris Fidelis & Legalis Domino nostro Regi, & suis Haeredibus; & Fidelitatem & Legalitatem ei porta­bis de vita & membro, & de Terreno honore, & quod tu eorum Malum aut Damnum nec noveris, nec audiveris, quod non defendes (id est, prohibes) pro posse tuo, &c.

AND tho I grant this word (Fideles) is after the Conquest frequent­ly used for a Military Tenant or Vassal, yet does it likewise even then often extend further than to Tenants in Capite only, as I am able to prove from the very Authorities he gives us in his own Glossary, under the Title Fideles, were it now worth while to dispute that Point. But in the mean time it lies upon him to make out, that the Fidelium Mul­titudo mentioned in King Athelwolf's Charter abovecited, and the Om­nium [Page cviii] Fidelium in these, were no other than his Tenants in Capite, which when ever he does, (to make use of his own Phrase) Erit mihi Magnus Apollo.

I could also give you some Instances to the same Effect out of the Saxon Annals under the Years 994, and 1002. in both which it is said ex­presly, THA GAEREDDE SE KYNG AND HIS WIT AN; that is, it was Decreed by the King and his Wites or Wisemen, to make Peace with the Danes, and to raise a Tax for that end.

SO that to conclude, I think this Dispute about the King's Authori­ty in making of Laws, may easily be reconciled to that which the two Houses of Parliament now exercise, that is, the King makes the Laws, yet by and with the Assent of the Lords and Commons, as is declared in the Year-Book of Edward the Third. 22 Edw. 3. f. 3. a. b. And if such their Assent be absolutely necessary, can any Man in reason deny their Authority to be Essential in the making of these Laws?

AND therefore Bracton understood well enough what he wrote, when he tells us, Cam Legis Vigorem habeat Quicquid de Consilio & Con­sensu Magnatum, & Reipublicae Communi sponsione, Authoritate Principis praecedente, jaste fuerit Definitum & Approbatum; i. e. ‘That whatso­ever hath been rightly decreed and approved of by the Advice and Consent of the Chief Men, and the General Agreement of the Com­mon-Wealth, the Prince's Authority preceding, carries thenceforth the Force of a Law.’

WHEREBY it appears that in this Great Man's Time, the King gave his Consent to Laws first, by ordering them to be drawn up by his Council, and proposed to the Parliament when they met; and that it was in their Power either to accept or refuse them, as we see it is in Charters and Acts of Pardon at this Day, when they are Passed and Confirmed by both Houses; and for this see the Preface to the Statute of Westminster the Third.

AS for the Judicial Power of this Witena-Gemote, in Banishing great and notorious Offenders against the King and Kingdom, whose Crimes were either not directly Treason according to the strict Letter of the Law, or else their Persons being too great for any other less Court of Judicature; you may find divers Examples in our Annals and Histori­ans, viz. under the Years 1048, 1052, 1055. But I do not find any great Lord or Nobleman condemned to Death, or attainted by Autho­rity of this Council, till long after the Conquest.

HAVING now shewn the Antient Authority of the Estates of the Kingdom to have been always necessary and concurrent, (I do not say co-ordinate) with that of the King, and also what other Powers they constantly then used; in the next Place I come to observe the near Con­junction and Union of both Church and State in their Mycel-Synods or Witena-Gemotes; which lets us see what kind of Supremacy our Eng­lish-Saxon Kings then exercised in Church Matters, as also who they were that at that Time made Ecclesiastical as well as Civil Laws: and I shall give it you in the Words of a very Learned Lawyer lately deceased,Observations on the Ecclesiasti­cal Jurisdiction of the Kings of England, pag. 13, 14, &c. I mean, Mr. Joseph Washington, since I own I am not able to mend what hath been wrote by so excellent a Pen: his words are these.

‘IN the second Place, (for in the precedent Pages he had given some Instances before the entry of the Saxons, (which being not to my [Page cix] present Design I omit) to make appear in some Measure how the Law stood in those Times with respect to the King's Supremacy;) I will exhibit (says he) a very few Instances of the Saxon Times, during the Heptarchy. The Reader may consult many more at his Leisure.’

‘NO marvel if we find this People submitting to nothing in Reli­gion, but what was ordained by themselves; De Majoribus Omnes, Tacit. de Mo­rib. German. Cap. 11. was one of their Fundamental Constitutions before they came hither, and it is continued here to this Day. And Matters of Religion were amongst their Majora, even before they received Christianity.’

‘ACCORDINGLY Edwin King of Northamberland, habito cum Sa­pientibus Consilio, renounced his Paganism, and he and they embraced the Christian Faith. This is described in Bede and Huntington, Vid. Bede Eccl. Hist l. 2. c. 13. Hunting. l. 3. f. 188. to have been done in such an Assembly of Men, as the Parliaments of those Days are generally mentioned to consist of.’

‘AFTER the Christian Religion had spread among the Saxons, the Bishops and Clergy frequently held Synods without the Laity for Church-Visitation,Vid. Spel. Concil. ubi­cun (que). and made Constitutions for the Regulation of the Clergy, which they obeyed and submitted to by reason of their Oath of Canonical Obedience: but as nothing transacted in those Assemblies of the Clergy bound the People, so can no Instance be produced of the Clergy's being bound by any Act of the King, not assented to in the Provincial Synods of those Times.’

THESE Synods may easily be distinguished from our Mycel-Synods or Witena-Gemotes, not only by the Matters transacted in them, but by the Persons that therein presided, and subscribed them, viz. the Pope's Legate, or else the Arch-Bishop of Canterbury or York, and the Bishops, Abbots, &c. without the Names of any Temporal Persons present thereat, when they were meer Ecclesiastical Synods; but if they were mixt as well for Temporal as Ecclesiastical Matters, both the King and Arch-Bishop are said to preside, otherwise the King alone: and before the Union of the Heptarchy into one Kingdom, these Synods were com­monly held in the Dominions of that King who was then most Pow­erful, so that the lesser or weaker Princes were fain to appear therein in Person, or by their Deputies; but if they did not appear there, nor yet send any Deputies, those Councils were looked upon as to all Temporal and Ecclesiastical Matters, no other than particular Synods, or Councils of those Kingdoms wherein they were held, or whose Kings consented to them; for which I could give you several Instances were it not to avoid being tedious; but for this I refer the Reader to the first Volume of Sir H. Spelman, as also to divers Charters in Monast. Anglican. and Ingulf; some of which are taken notice of in this Introduction, and the following History. This I thought fit to superadd, the better to explain what our Learned Author hath said upon this Point.

BUT notwithstanding he there further observes, ‘That the Clergy themselves, both as to Doctrine, Discipline, and Ceremonies, were bound by the Publick Laws of the Kingdom, enacted in the Great Councils of the Nation; concerning which he gives us these ensuing Instances.’

‘IN the Year 673. Concilium Herudfordiae celebratum est sub initio primi Anni Lotharii Regis Cantiae, praesidente Theodoro Cantuariae Archiepiscopo. Mat. Westm. fol. 122, 123. At this Council (says Matthew Westminster) were [Page cx] present Episcopi Angliae, & Reges, & Magnates Vniversi: where Theo­dore proposed decem Capitula, out of a Book of Canons before them all, which were there assented to, and subscribed. The first was con­cerning the Observation of Easter; the ninth; that the Number of Bishops should be increased,Spelm. Concil. Vol. 1. Pag. 152, 153. crescente Fidelium numero. The rest were concerning Bishops, Bishopricks, Monks, Marriage, Fornication, &c.’

‘THE Presence of the Bishops and all the Magnates, makes this As­sembly appear to have been a Parliament of those Times. What Or­ders of Men were comprehended under the word Magnates, is not material to our present purpose. The Great Councils that made the Laws, and without whom no Laws were made, are frequently so described by our Antient Historians.’

BUT without all peradventure these Magnates were Laymen, and that is enough for my Point.

THEN the same Author goes on in these words, ‘In the Year 692. Ina King o [...] the West-Saxons, enacted many Constitutions for the Go­vernment of the Church, as De Formula vivendi Ministrorum Dei. De baptizandis Infantibus. De Opere in die Dominico. De Immunitate Fani, &c. The Preface to which Law runs thus, Ego Inas Dei beneficio Occiduorum Saxonum Rex, suasu & Instituto Cenredi Patris mei, & Heddae & Erkenwaldi Episcoporum meorum, Omnium Senatorum me­orum, & natu Majorum Sapientum Populi mei, in magnâ Servorum, Dei frequentiâ, religiosè studebam tùm animorum nostrorum saluti, tùm communi Regni nostri conservationi, ut legitima nuptiarum foedera, &c. Here the King, his Bishops, all his Senators, the Natu majores & Sa­pientes of his People, (which are Descriptions of the Laity in the Par­liaments of those Times) and a great Number of God's Servants, (by which the Clergy are meant) make Ecclestastical Laws: This was a Parliament, Ibid. fol. 182, 183, &c. as appears not only by the Presence of the Laity, but by many Temporal Laws enacted at the same Time.’

‘IN the Year 694. Concilium Magnum Becanceldae celebratum est, praesidente Withredo Rege Cantiae, nec non Bertualdo Archiepiscopo Britanniae, cum Tobiâ Episcopo Roffensi, Abbatibus, Abbatissis, Presby­teris, Diaconibus, Ducibus, Satrapis, &c. All these paritèr tractabant, anxie examinabant de statu Ecclesiarum Dei, &c. Here the King's Le­gislative Power in Ecclesiastical Matters exerted it self, not Personally, but in this Great Council. They do all Enact, Statuimus, decerni­mus, praecipimus. For when the King himself is spoken of, the sin­gular Number is used, Nullus unquàm habeat Licentiam accipere ali­cujus Ecclesiae vel Familiae Monasterii Dominium, Ibid. p. 189, 190. quae à meipso vel Ante­cessoribus meis, &c.’

‘A Council was held at Berghamstede, Anno quinto Withredi Regis Cantiae, i. e. Anno Christi 697. Sub Bertualdo Archiepiscopo Cantua­riensi, praesentibus Gysmundo Episcopo Roffensi, & omnibus Ordinibus Gentis illius, cùm Viris quibusdam militaribus. In quo de moribus cave­tur ad Ecclesiae cognitionem plerúm (que) pertinentibus. These Ordines Gen­tis illius, seem by the Preface to these Laws, to be meant of the Or­dines Ecclesiastici Gentis illius; but withal, that they cum viris utí (que) militaribus humanissimè & Communi Omnium Assensu has Leges de­crevere. Ibid. p. 194. So that these Ecclesiastical Laws were enacted by the Assent of the Viri Militares, as well as of the King and the Clergy.’

[Page cxi] ‘A Council was held at Cloveshoe, sub Cuthberto Doroberniae Archie­piscopo, praesentibus (praetèr Episcopos, Sacerdotes & Ecclesiasticos quam­plurimos) Aedelbaldo Merciorum Rege cum suis Principibus & Ducibus, Anno Dom. 747. In quo decernebatur de unitate Ecclesiae, Spelm. Concil. p. 242, &c. de statu Chri­stianae Religionis, & de Concordiâ & Pace, &c.’

‘In the Year 787. Concilium Legatinum & Pananglicum was held at Calcuith, in which many Canons were made de fide primitùs susceptâ retinenda, aliís (que) ad Ecclesiae regimen pertinentibus. This Council was held coràm Rege Aelfwaldo, & Archiepiscopo Eanbaldo, & omnibus Episcopis & Abbatibus Regionis, seu Senatoribus & Ducibus, & Populo Terrae. After these Ecclesiastical Laws had been thus enacted by Aelfwald King of Northumberland, the Legats carried them into the Council or Parliament of the Mercians, where the glorious King Offa, cum Senatoribus Terrae, unà cum, &c. convenerat. There they were read in Latin and Teutonick, that all might understand, and all pro­mised to observe them; and the King and his Princes, Spelm. Concil. vol. 1. f. 291, 292, &c. the Arch-bishop and his Companions, signed them with the sign of the Cross.’

‘MANY Instances of this kind might have been added, as parti­cularly that of the Council at Hatfield, Anno 680, wherein the Ca­nons of five General Councils were received, which was a Witèna-Gemot, a Conventus Sapientum; but I spare time, and am indeavour­ing only to open a Door.’

‘BY these Instances it is apparent, that the same Body of Men that enacted the Temporal Laws of the Kingdom did in the very same Councils make Laws for the Government of the Church. Indeed, the whole Fabrick of the English-Saxon Church was built upon Acts of Parliament; nothing in which the whole Community was concern'd, was enacted, decreed, or established, but by that Authority. For whoso reads impartially the Histories of those Times, and compares them with one another, will find, that as most of those antient Councils, commonly so called, were no other than (to speak in our Modern Language) Parliaments; so not any thing whatsoever in Religion, obligatory to the People, whether in Matters of Faith, Discipline, Ce­remonies, or any Religious Observances, was imposed, but in such Assemblies as no Man can deny to have been Parliaments of those times, that has not a Fore-head of Brass. For the Presence not of the Kings only, but of the Duces, Principes, Satrapae, Populus Terrae, &c. shews sufficiently, that neither the Kings and the Clergy, without the concurrent Authority of the same Persons that enacted Temporal Laws, could prescribe General Laws in Matters of Religion. I do not dispute what Orders of Men among the Saxons were described by Duces, Principes, &c. but sure I am, that they were Lay-men, and as sure, that they assented to, and confirmed those Laws, without whose Assent they were no Laws: so that the Kings of those Times had no greater Legislative Power in Ecclesiastical Matters than in Temporal.’

‘THE tearing the Ecclesiastical Power from the Temporal, was the great Root of the Papacy: It was that mounted it to this heighth; those Powers never were distinct in England, nor most other Nations, till that See got the Ascendant. And it is strange Inconsistency to ar­gue one while, that whatever the Pope de facto, formerly did by the Canon Law, that of Right belongs to our Kings; and another while, [Page cxii] that the several Acts that restore the Ecclesiastical Jurisdiction to the Crown, are but declarative. It shews how little the Supremacy is un­derstood by Modern Assertors of it, and how little they are acquain­ted with the Antient Government of England.’

‘THE third Period of Time to be considered, shall be from the uni­ting of the several Kingdoms of the Saxons under one Monarchy to the Norman Conquest.’

‘IN this Division we find a Letter from Pope Formosus to King Ed­ward the Elder, wherein the Pope complains, that the Country of the West-Saxons had wanted Bishops for seven whole Years: Upon the Receipt of this Letter, the King calls Synodum Senatorum Gentis An­glorum, who being assembled, singulis tribubus Gewisiorum (i. e. West-Saxonum) singulos constituerunt Episcopos, Spelm. Concil. 387, 388. & quod olìm duo habue­runt, in quinque divisêrunt.’

‘THE Ecclesiastical Laws of King Edward the Elder, and Guthrun the Dane, begin with this Proemium: Haec sunt Senatus-consulta ac Instituta, quae primò Aluredus & Guthrunus Reges, deindè Edwardus & Guthrunus Reges, illis ipsis temporibus tulêre, cum pacis foedus Daci & Angli ferierunt. Quaeque posteà à sapìentibus (Tha Witan) saepiùs recitata át (que) ad Communem Regni utilitatem aucta át (que) amplificata sunt. The Titles of some of these Laws are, De Apostatis, De Correctione Ordinatorum, (i. e.) Sacris Initiatorum, De Incestu, De Jejuniis, &c. all of Ecclesiastical Cognizance, or at least of after-times so reputed. These are called Senatus-consulta, than which a more apposite word could scarce have been used for Acts of Parliament, and were assented to by the Witen;Spelm. Concil. 390, &c. from which word the Saxon Term for Parliaments, Witena-Gemot, is derived.’

‘A Concilium celebre was held under King Athelstan, in quo Leges plurimae, tùm Civiles, tùm Ecclesiasticae, statuebantur. It's true, the Civil Laws are omitted, and Sir Henry Spelman gives us an Account only of the Ecclesiastical Laws made at this Assembly, which conclude, Decreta, Acta (que) haec sunt in celebri Gratanleano Concilio, cui Wulfel­mus interfuit Archiepiscopus, Spelm. Concil. 396, &c. & cùm eo Optimates & Sapientes ab Athel­stano evocati frequentissimi.’

‘KING Edmund held a Council Anno 944. where many Ecclesia­stical as well as Secular Laws were made, as De Vitae castitate eorum qui sacris initiantur; De Fani instauratione; De pejerantibus; De iis qui barbara factitarunt Sacrificia, &c. And this Council is expressed to have been Conventus tàm Ecclesiasticorum, Spelm. Concil. fol. 419, &c. quàm Laicorum; celebris tàm Ecclesiasticorum, quàm Laicorum frequentia.’

‘I will give no more Instances before the Conquest, tho numbers are to be had which lie scattered up and down in the Monkish Histories, which being compared with one another, will sufficiently disclose what I assert. For sometimes Laws that concert Temporal Affairs, as well as Ecclesiastical, are said to have been made by such a King in one Author, which very Laws another Historian tells us were made in the Great Council, for which yet they have no uniform, appropriated Expression, Term, or Denomination: Just as we in common Par­lance say, King Edward the Third, or King Henry the Seventh made such a Law, which yet every Man understands to have been made in Parliament, because else it were not a Law.’

[Page cxiii]SO far have I made bold with the words of this Learned Gentleman: I shall now, by way of Confirmation to what he hath said, observe, from Mr. Lambard's Edition of his English-Saxon Laws (which was a different Copy from that,Lamb. Archai­onomia, f. 57. & dein. from whence Sir Henry Spelman published his Councils) that our Saxon Laws both Ecclesiastical and Civil, were made by one and the same Authority, as appears by the Preface to the Laws of King Edmund, which we find runs thus, Aedmundus Rex ipso solemni Paschatis Festo, frequentem Londini tàm Ecclesiasticorum quàm Laicorum Coetum celebravit, &c. So likewise in the Laws of King Edgar, Id. fol. 62. the Preface of which is thus, Leges quas Edgarus Rex frequenti Senatu, ad Dei Gloriam, & Reipublicae utilitatem, sancivit. In the Saxon Ori­ginal thus, MID HIS WITENA GEHEAHTE GERAED, that is, with the Council of his Wise-men he established. The Laws of King Cnute likewise begin thus, Consultum quod Canutus Anglorum,Id. fol. 97. Dacorum, & Norwegiorum Rex, ex Sapientûm Concilio sancivit. (Note, the words in the Saxon are the same as above.)

I could illustrate this further by several more Instances out of the same Volume, were I not afraid of having already trespassed too much upon you; only I desire you would please to take notice, that in each Body of these above-mentioned Laws, the Ecclesiastical precede, and then the Civil or Temporal follow, tho being both made at the same time, in the same Council, and by the joint Authority of the same Parties.

BUT now to add one thing more from the said Author, Mr. Wash­ington, which is, ‘That Bishopricks and other Ecclesiastical Dignities were in the Saxon Times (commonly) conferred in Parliament; we have the Testimony of Ingulphus, who was Abbot of Crowland in King William the Conqueror's Reign; à multis annis retroactis nulla erat Electio Praelatorum merè libera & Canonica: sed omnes Dignitates tàm Episcoporum, quàm Abbatum, Regis Curia pro suâ complacentiâ con­ferebat: that is, says he, that for many Years past, there was no Electi­on of Prelates absolutely free and Canonical:’ But all Dignities both of Bishops and Abbots, were conferred by the King's Court (i. e. the Great Council of the Kingdom, as I shall prove by and by) according to their good Pleasure.

AFTER which, the Person so elected, being first consecrated, the King invested him with the Temporalties, per traditionem Baculi & Annuli, as you will find in the same Author.

AND that this Custom was very antient will appear by the Election of Wilfrid to be Bishop of Hagulstade, In vitâ Wil­fridi, cap. 11. edit. per Rev. Dom. Dr. Gale fol. 46. Anno 666. for Stephen Heddi expresly tells us in his Life, Reges deindè Concilium cum sapientibus suae Gentis post spatium inierunt, quem eligerent in sedem vacantem, &c. Re­sponderunt Omnes uno Consensu, Neminem habemus meliorem & digniorem nostrae Gentis, quàm Wilfridum Presbyterum & Abbatem. Then the two Kings (i. e. of Northumberland) after some time held a Council with the Wise-men of their own Nation, to consider whom they should choose to fill up the vacant See, &c. and they all unanimously answered, We have none fitter nor more worthy in our Nation, than Wilfrid the Presbyter and Abbot; and thereupon being presently elected, he was consecrated Bishop.

THE next Authority of much what the same time you may find in an antient Manuscript-Life of St. Erkenwald in the Cottonian Library,Claudius A. 5. where are these words, Contigit autèm Episcopus Londonicae sedis, Cedda [Page cxiv] migravit ad Dominum, consensu verò Sebbae Regis, & vocabulo universae plebis, vir Domini Erkenwaldus in Cathredrâ Pontificali sublimatus est, i. e. but it happened, that Cedda Bishop of London deceasing, Erkenwald, that holy Man, by the Consent of King Sebba, and the Nomination of all the People, was promoted to the Episcopal Throne.

BUT long after this, as a Nameless Author of the Manuscript-Life of St. Dunstan informs us,Bibl. Cotton. Vitellius D. 17. he was made Bishop after this manner, viz. Postea, Anno 958. factus est magnus sapientûm Conventus, in loco, qui voca­tur Bradanforde, & eo omnium ex electione ordinatus est Dunstanus ad Episcopum Wigornensem. To wit, that afterwards, scilicet, in the Year 958. a Great Council of the Wise-men of the Kingdom, was held at Bradanforde, and there by the Election of them all Dunstan was ad­vanced to be Bishop of Worcester, &c. and then the King finding how well he discharged that Trust, the same Author tells us, that he com­mitted to him the Church of London, then void by the Death of its Pastor, or Bishop.

THIS Nomination of the King's must be understood in the same sense with that which went before, as well as with what immediately follows, viz. that Brihthelm, Arch-bishop of Canterbury, being depriv'd, a little after he retired to his Monastery, and then Rex, scilicet, Edgarus, ex Divino respectu, & Sapientûm Consilio, constituit Dunstanum ad su [...]m praedicta Ecclesiae Sacerdotem; King Edgar, both from a Divine respect, and from the Counsel of his Wise-men, constituted Dunstan chief Bishop of that Church.

THE next Example we have, is that of St. Wulstan, Bishop of Worcester, who (as it is related by a Monk of that Church in his Ma­nuscript-Life of that Saint, about Anno 1170.) being sent for on pur­pose to be made a Bishop, he gives us the manner of his being elected thus, Sanctus ergò ad Curiam exhibitus, jubetur suscipere Donum Episcopa­tûs; contrà ille niti, & se tanto honori imparem (cunctis reclamitantibus) clamitare, adeò concors populus in unam venerat sententiam, ut non peccaret qui diceret in tot corporibus in hoc duntaxat negotio unam conflatam esse Ani­mam. This holy Man being called before the Great Council, (for so Curia in this place is certainly to be understood) he was commanded to accept the Gift of a Bishoprick; but he endeavoured all he could to wave the Acceptance of it, alledging, that he was altogether unfit for so great an Honour; but the whole Assembly not admitting his Excuse, they all unanimously came to this Resolution, that one should not have told a Lie who had said in this particular Affair, that one Soul had ani­mated so many Bodies.

SO that it was not without very good Cause, that Matthew Paris tells us concerning this Bishop's Election,Mat. Paris. fol. 20. there concurred Plebis Petitio, Vo­luntas Episcoporum, Gratia Procerum, Regis Authoritas.

HAVING thus given you so many good Authorities from antient Manuscripts and approved Historians of the Power of those Great Councils in the Election of Bishops, I shall only add a few more from our Saxon Annals.

THE first is under Anno 970, which relates, that then Oskytel, Arch-bishop of York deceased, who had been by the Consent of King Edward the Martyr, and all his Wise-men, consecrated Arch-bishop of that See.

THE next is under Anno 994. and there we read, that Sigeric the Arch-bishop deceasing, Aelfric Bishop of Winchester was elected in his [Page cxv] room on Easter-day at Ambresbury, by King Aethelred, and all his Wise-men; from whence it appears, that not only the King, but the Great Council of the Kingdom had a share in this Election.

I could give you also several Instances in the said Annals of divers Abbots elected in the same Assemblies to the greater Monasteries; but I hope what I have done already is sufficient to my present Purpose, and therefore shall leave it to the Reader's Judgment to consider, whether, when these Annals and Historians inform us, that Rex constituit such and such a Man to be Bishop or Arch-Bishop of such or such a See, it is not to be understood in the same Sense as we have already observed from Mr. Washington's said Treatise; that when this or that King is said to have made such or such a Law, it is still to be understood as made in Parliament?

I shall now say somewhat of the same Great Council's Power in the Deprivation of Bishops, of which I shall not trouble you with many, but they shall be such Examples as are of undeniable Authority.

THE first is from Osbern in his Life of Arch-Bishop Dunstan, lately printed in the first Volume of Anglia Sacra, concerning the Deprivation of Arch-Bishop Brihthelme abovementioned in these words, Bryhtelmus post paucos suscepti Pontificatus dies, cogitans quod ad tantam rem minùs esset Idoneus, jussus à Rege & Omni populo discedere, discessit, at (que) ad re­lictam nuper Ecclesiam non sine Verecundia rediit, i. e. ‘Bryhtelme within a few Days after he had received his Bishoprick, not thinking with himself that he was fit for so great a Charge, being commanded by the King and all the People to quit it, departed, and returned to the Church he had lately left, though not without Shame.’

BUT that John of Wallingford was very well satisfied, that this Arch-Bishop was deprived by the Lay, as well as Spiritual part of the Great Council, appears by his Chronicle, where having set forth his unfi [...]ness by reason of his too great Easiness and Softness of Temper, he proceeds thus, Rex Edgarus eadem via quâ ascenderat, fecit eum descen­dere; nam Concione super hoc eodem facta, objecit Bryhthelmo plura Ca­pitula, nimiam ipsius remissionem morum argumenta, & condictione & Assensu Baronum suorum ad curam Solius Dorcasinae Ecclesiae relabi fecit, that is, ‘King Edgar made him to go down the same way he got up; for a Council being called for this very Matter, he objected several Articles against this Bryhtelme, shewing his too great Easiness and Remissness in Discipline; and thereupon by the Appointment and Assent of his Barons, he caused him to retire to the Cure of his for­mer Church of Dorchester.’ By which it is evident, that this Author (living in the Reign of Henry the Third) was very well satisfied that the Temporal as well as the Spiritual Barons, were concerned in this Deprivation.

‘I was likewise from the Authority of the Saxon Annals, as also of William of Malmesbury, about to have here also added the Deprivation of one Siward, who is reported by the Annals, An. 1043. to have been privately Consecrated to the See of Canterbury, with the King's good liking, by Arch-bishop Eadsige, and who then laid down that Charge: and of which Siward, Lib. 1. de Pont. William of Malmesbury farther tells us, that he was afterwards deprived for his Ingratitude to Arch-Bishop Eadsige, in denying him necessary Maintenance: but since there is no such Person as this S [...]ard in the Catalogues of the Arch-bishops of [Page cxvi] Canterbury, and that upon a more nice Examination, I find in the Learned Mr. Wharton's Treatise,Vid. Ang. Sa­cra, Vol. 1. Pag. 107. De Successione Archiepis. Cantuar. that this Siward (who was also Abbot of Abingdon) was never Conse­crated Arch-Bishop, but only Chorepiscopus, or Substitute to Arch-bi­shop Eadsige; who was then unable to perform his Function by reason of his Infirmities: which upon a review of this Passage in William of Malmesbury, I find also confirmed by him, in calling him no more than Successor Designatus, and who being put by for his Ingratitude, was preferred no higher than to be Bishop of Rochester; but this is denied by the abovecited Mr. Wharton, who says expresly, that this Siward Abbot of Abingdon, and Substitute to the Arch-bishop, was never Bishop of that See, but died at Abingdon of a long Sickness before Arch-Bishop Eadsige.’ So much I thought fit to let the Reader know, be­cause in this History under Anno 1043, being deceived by the express words of the Annals, I have there made this Siward to have been Arch-Bishop of Canterbury, and deprived for his Ingratitude to his Prede­cessor, which I am (upon better Consideration) now convinced to have been a Mistake.

I shall conclude with our Saxon Annals, which under the Year 1052. relate, that Earl Godwin having in a Great Council held at London, purged himself and his Sons of the Crimes laid to their Charge; and being thereupon restored, Arch-Bishop Robert the Norman, his Enemy, (having just before fled away into his own Country) was not only by a Decree of this Council banis [...]ed, but also deprived of his Arch-bishoprick; and Stigand then was advanced to that See in his stead, which certainly was done by the same Authority as deprived the former: and if so, then I think none can deny but that Power might also have deprived any other inferior Bishop; and yet we do no where find there was any Schism in England among the Clergy at that Time, be­cause these two Primates of the Church had been deprived without their own Consent, by the Lay, as well as Spiritual part of the Great Council.

HAVING now finished all I had to say concerning the Power of the King, and the Witena-Gemote in Ecclesiastical Matters, I would not be thought to assert that they have the like Authorities in Matters of meer Spiritual Cognizance, since I am very well satisfied of the Primi­tive Institution of the Episcopal Order, from the first Preaching of Christianity in the Time of the Romans, to the Restoration of it in this Island upon the Conversion of the Saxons; which is not liable to be abrogated by any Temporal Power, and which has been continued a­mong the Britains or Welsh, without any Interruption from thence, even to our own Times.

‘BUT as for the Ecclesiastical Power, it was at first settled under the two Arch-bishops of Canterbury and York, who had then no Jurisdiction or Preheminence the one over the other; the former being Primate of the Southern, as the latter was of the Northern parts of England: only I cannot but observe,Vid. Lam­bard's Peram­b [...]lat. of Kent, Pag. 340. that the Church of St. Martin's without the City of Canterbury, was (till after the Conquest) the See of a Bishop, called in Latin Core Episcopus, who (always remaining in the Countrey) supplied the Absence of the Metropolitan, that for the most part followed the Court; and that as well in governing the Monks, as in [Page cxvii] performing the Solemnities of the Church, and in exercising the Authority of an Arch-Deacon;’

AND no doubt had also the Episcopal Powers of Ordination and Confirmation, or else he could have been no Bishop. I observe this to let you see, that the English were not then so strictly tied up as not to al­low of more than one Bishop in one City.

BUT since I have chiefly designed to speak of Civil Affairs, I shall not here meddle with the Ecclesiastical Authority of the Bishops or their Courts, or the Officers belonging to them, but will leave them to those to whose Province it does more peculiarly appertain.

HAVING thus dispatched what I had to say concerning the Synods and Great Councils of the Kingdom in the Saxon Times, I shall in the next Place treat of the English Laws before the Conquest;Of the Eng­lish Laws before the Conquest. and they were of two kinds, viz. either the particular Customs or Laws of the several divisions of the Kingdom in which those Customs were in use; or else such Additions to, or Emendations of them, as were made from time to time by the Great Council of the whole Kingdom, concerning the Punishment of Crimes, the manner of holding Men to their good Behaviour, or relating to the Alteration of Property either in Lands or Goods; with divers other particulars, for which I refer you to the Laws themselves, as I have extracted them from Sir Henry Spelman and Mr. Lambard, their Learned Collections: and some concerning each of these particulars, I have given you in the following Work.

BUT to shew you in the first place the Original of the Saxon Custo­mary Laws,The Origi­nal of the Saxon Customary Laws. they were certainly derived from each of the Great Nati­ons that settled themselves in this Island before the Heptarchy was redu­ced into one Kingdom; but indeed after the Danes had settled them­selves here in England, we find they were divided into these three sorts of Laws, in the beginning of Edward the Confessor's Reign, according to the several parts of the Kingdom wherein they prevailed; as,

1. MERCHEN-LAGE, or the Mercian Law, 1. Merchen-Lage. which took place in the Counties of Glocester, Worcester, Hereford, Warwick, Oxon, Chester, Salop and Stafford.

2. WEST-Saxon-Lage, or the Law of the West-Saxons, 2. West-Saxon-Lage. which was in use in the Counties of Kent, Sussex, Surrey, Berks, Southampton, Somerset, Dorset, Devon and Cornwal; I mean that part of it which spoke English, the rest being governed by their own (i. e.) the British Laws.

3. DANE-Lage, 3. Dane-Lage. or the Laws which the Danes introduced here into those Counties where they chiefly fixed, viz. in those of York, Derby, Nottingham, Leicester, Lincoln, Northampton, Bucks, Hertford, Essex, Middlesex, Suffolk and Cambridg.

BUT as for Cumberland, Northumberland, and Westmoreland, I sup­pose they are omitted in this Catalogue, because in the Times not long before the Conquest, the first was under the Power of the Scots, and consequently under their Laws, as the two latter were under that of their own Earls, who ruled those Counties as Feudatary Princes under the Kings of England; tho thus much is certain, that the Danish Laws took Place there as well as in Yorkshire.

BUT after King Edward the Confessor came to the Crown, he reduced the whole Kingdom under one General; for thus says Ranulph Higden, [Page cxviii] as he is cited by Sir Henry Spelman in his Glossary, Tit. Lex. Ex tribus his Legibus, Sanctus Edwardus unam Legem Communem edidit, quas Le­ges Sancti Edwardi usque hodie vocant. Brompton says the like, Iste Su­pradictus Rex Sanct. Ed. Conf. dictus est Edwardus Tertius, qui Leges Communes Anglorum Genti tempore suo ordinavit; quia proantè Leges ni­mìs partiales editae fuerant. But Roger Hoveden carries them up higher in his History of Henry the Second, for he says, Quod istae Leges primùm inventae & institutae erant tempore Edgari Avi sui; sed postquam Edwar­dus venit ad Regnum, Consilio Baronum Angliae, Legem per 48. Annos sopit [...]m excitavit, excitatam reparavit, reparatam decoravit, decoratam con­firmavit; confirmata verò vocata est Lex Edwardi Regis, non quià ipse in­venisset eam prius, sed cum praetermissa fuerat, & Oblivioni penitùs data è Diebus Avi sui Edgari, qui primus Inventor ejus fuisse dicitur us (que) ad sua tempora, quià justa & honesta erant, è profundo Abysso extraxit, & eam revocavit, & ut suam observandam tradidit. But the true Reason why it is called the Common Law, is, because it is the Common or Muni­cipal Law of this Kingdom; so that Lex Communis, or Jus Patriae, is all one with Lex Patriae, or Jus Patrium: and it is also called the Com­mon Law in other Countries, as Lex Communis Norica, Burgundica, Lombardica, &c. And from this latter they were so called by William the First, in his Confirmation of them.

HAVING now given you the Original of our Laws in General, we will next proceed to shew you what they were in particular, as far as they concern those two great Branches of all Municipal Laws, viz. the Civil or the Criminal: The former o [...] which concerns Lands and Goods, and the latter the Nature and Punishments of Criminal Offences.

The Civil Laws.TO begin with the former as far as it concerns Lands, I shall satisfy my self with what Dr. Brady hath with great Industry and Exactness extracted in the first part of his Compleat History of England, out of those Learned Authors you will find there cited in the Margin,Dr. Brady's Compleat Hist. Fol. 66, 67. which is as follows.

‘Mr. Somner says, there were but two sorts of Tenures here in the Saxon times before the Conquest;Gavelkind, Fol. 11. K. Edw. Sen. cap. 11. Bocland and Folkland, to which two all other sorts of Land might be reduced. Bocland, as Gloss. in verbo Terrâ ex Scripto. Bocland and Folkland, what? Lam­bard says, was Free and Hereditary, and was a Possession by Writing, the other without. That by Writing was possessed by the Free or Nobler sort; that without, called Folkland, was holden by paying Annual Rent, or performance of Services, and was possessed by the Rural People, Rusticks, Colons or Clowns; in those Times these Writings Spelm. Concil. Fol. 310. An. 800. Concil. Clove­sho. C. 2, 3, 6. were called in Latin, Libelli Terrarum, Landboc's and Telligraphia, and Livery and Seizin was then made and given, by Somner. ut [...]up. pag. 12, 13. delivery of a Turf taken from the Land with the Writings: This was called Terra Testamentalis, & hereditaria, Land Inheritable, and devisable by Will, unless the first Purchaser or Acquirer, by Writing or Witness, had prohibited it; and then it could not be sold or dis­posed of from the LL. A [...]u­vid. Cap. 37. Bocland and Allodium. nearest Kindred. This Bocland was of the same Nature with Allodium in Doomsday, holden without any Pai­ments, nor chargeable with Services to any Lord or Seignory; and though the Name was almost quite lost, yet the thing remained un­der the Name of Allodium, and the Lands possessed by the Allodiarii frequently mentioned in Doomsday.’

[Page cxix]I have been the more exact in putting down this Passage, because it plainly proves, from the learned Doctor's own shewing, that if the greatest part of the Lands before the Conquest, held by Men of any Quality, were Bocland, Compl. Hist. pag. 66, 67. and that this Bocland was the same (as he grants) with Lands held in Allodio; (and I have already proved that such Lands were held without any Paiments or Services, other than such publick Taxes as were imposed by the Great Council of the Kingdom; that is, Danegelt, with such other Duties as all Lands whatsoever were liable to:) then is it also as evident that these Lands, which were far the greatest part of the Lands in the Kingdom, were not held by Knight's Service, and consequently their Owners could not be Tenants in Capite, as this Author is pleased in other Places to suppose; and there­fore these Tenants in Allodio could never be so represented by such Mi­litary Persons, as that they alone could either make Laws for them, or lay Taxes on their Estates, without their Consents either by themselves or Representatives in the Great Councils or Parliaments of those Times; and therefore such free Tenants must have either appeared for themselves in Person, or have chosen others to represent them.

AND if any Man doubt whether these Lands held in Allodio, were before the Conquest the greatest part of the Lands of the Kingdom; I must refer them for their Satisfaction to Mr. Somners and Mr. Tay­lor's Treatises upon Gavelkind, Pag. 603. as also to Mr. Lambard's Discourse of the Customs of Kent, at the end of his Perambulation of that County; who there fully prove, that the Antient Bocland descending to all the Male Issue alike, was not meer Socage Tenure, but Allodial. 2dly, That this was the general Tenure of all Lands not held by Knights Service before the Conquest, (as well Gavelkind as others) and that not only at the Common Law, but confirmed by divers Saxon Kings; as by that Law of King Edmund, Si quis intestatus obierit, Liberi ejus haere­ditatem aequalitèr dividant: So likewise by the 68th and 75th Laws of King Cnute, as also by those of Edward the Confessor, confirmed by Wil­liam the Conqueror, Cap. 36. And therefore Mr. Somner in his said Treatise of Gavelkind, farther proves, that this was a Liberty left to the Kentish Men by William the Conqueror, when all the rest of England changed its Antient Tenure; and Mr. Taylor in his History of Gavelkind, Chap. 6, 7, 8. hath proved this to have been a general Cu­stom, not only in Kent, but in Wales and several parts of England.

I shall not any further pursue what the Doctor has said of Lands holden by Military Service before the Conquest, or of the Herriots or Reliefs that were due upon them, which were payable out of the Feudal Lands of the Ealdormen, middle and less Thanes; but shall refer you to the Laws of King Cnute, and those of the Confessor, the former of which you will find at the end of his Reign in the ensuing Volume, wherein is set down what the Heirs of each of those Feudatary Tenants were to pay to their Lords at the Death of their Ancestors.

BUT that these could not be near all the Lands of England, appears by what hath been already said of Lands held in Allodio. And I have known some Learned Antiquaries, who have not without good Cause believed that all Tenure by Knight-Service in England, was derived from the Danes and Norwegians, who upon their Conquests and settling here, first brought in that sort of Tenure out of Denmark and Norway; from whence the English Saxon Kings might by Degrees impose it upon se­veral [Page cxx] Lands by them granted to their Ealdormen or Earls, and chief Thanes, by Military or Knights Service, who likewise granted them to their inferiour Thanes under the like Tenures; and yet it would have been very unreasonable that such inferior Thanes should have so far been deprived of their antient English Freedom, as that the Earls and King's Thanes should have it in their Power to make what Laws, and impose what Taxes they pleased upon them as their under Tenants, with­out their Consent.

AND if meer Tenure alone could have done this, I would fain know why the English Kings before the Conquest, by the same reason might not as well have made Laws, and taxed their Tenants in Capite without their Consent, as these could have done their Tenants that held under them? But this is altogether false in Matter of Fact, as all the Histories of those Times shew; Danegelt it self being first imposed by the Consent of the King and his Wites, Anno 994. as appears by the Saxon Annals.

NOT but that I grant all the Lands of England were then held un­der those three great Services called in Latin Trinoda Necessitas, viz. 1. Expedition (that is, the finding of Men to defend the Kingdom in case of Invasion.) 2. The Repair of Bridges; and, 3. Fortifying of Castles; from which even Lands granted to the Church were not ex­empted, as appears by the Charters to several Monasteries. But these were Services due, and to be performed by the Common Law and Custom of the Kingdom, and did not concern one sort of Tenure more than another.

I have no more to observe concerning this Bocland, but that it passed by Deed,Ingulph. Hist. fol. 508. called by Ingulphus, Chirographa, until the Confessor's time, and was confirmed by the Subscriptions of the Fideles, or Subjects there pre­sent, with golden Crosses, and some other holy Marks; only this me­thinks ought not to be passed over, that the Ceremony of Livery or Seizin of Lands is very antient, as appears by the Charter of Ceadwalla, King of the West-Saxons (preserved among the Evidences belonging to the Arch-bishop of Canterbury) in the Year DCLXXXVII. made to Theodore then Arch-bishop of that See, of certain Lands with this Sub­scription, Ad cumulum autèm Confirmationis, ego Cedwalla Cespitem terrae praedictae supèr sanctum Altare Salvatoris posui, & propriâ manu, pro ig­norantia Literarum, signum sanctae Crucis expressi & subscripsi: that is, ‘For the farther Confirmation thereof, I Ceadwalla have put this said Turf of Earth upon the holy Altar, and for want of Learning, have with my own Hand made and subscribed the Sign of the holy Cross.’ The like also hath Camden out of a Patent made by Withered King of Kent, Vid. Camd. Brit. in Can­tio. to a Nunnery in the Isle of Thanet. So much for Bocland.

CONTRARY to which was that called Folkland, which Sir Henry Spelman says,Folkland. Spelm. Gloss. [...]it. Folkland. was Terra popularis, scilicet, quae jure communi possidetur, vel sine scripto; that is, Land belonging to the ordinary sort of People, which they enjoyed of common Right, without any Writings or Deeds, as we see in Copy-hold Lands at this day, for which the Tenants have seldom any other Evidences than the Copy of the Court-Rolls of the Mannor; which Copy-hold Lands were antiently either held by Sock­men (that is, Free-men holding by the Plow) to perform mean and villain Services, or else by those who were Villains appendant to the Mannor.

[Page cxxi]THESE might be ousted of their small Estates at the Will of the Lord,Tenants in Antient De­mesne. which a Farmer could not be so long as he honestly performed his Services; and these were they, who after the Conquest were called Tenants in Antient Demesne, either of the King, or of some other Lord, as you will find in the old Natura Breviam. Cap. Breve de Recto.

‘OF the like sort also, as Dr. Brady very well informs us,Compleat. Hist. fol. 67, 68. were Lands and Possessions mentioned by other Names in our Saxon Laws, as Gaffolland, Rent-Land, or Farm-Land, Foedus Alured, Saxon Te­nures. and Guthr. c. 2. Gafogyldenhus, an House yielding or paying Rent, or Gable. LL. Inae, c. 6. There are also mentioned Inland, Inland. Utland or Out­land. or the Lords De­mesnes, which he kept in his own Hands, and Neatland, which is called Vtland, or Outland, in Lamb. Per­amb. Kent, p. 495. Byrthric's Will; Terra Villanorum, and was let out to Country-men, or Villagers, Aegder of Thegnes in­landge, of Neatland, i. e. either of the Lords or Thanes Inland, or Demesnes, or else the Country-mans, Villagers, or Villan's Land,1 Edit. Spelm. Gloss. in verb. Gafolland, Neatland, and Vtland, as Gavelk. p. 14, 115. Mr. Somner truly informs us, were opposed to Inland, Spelm. Gloss. in verbo. or Demesne-Lands, and were Lands granted out for Rent, or Service, or both, and reducible to Folkland; and 'tis very probable they were the same, or of the same Nature; for that in the Laws where they are mentioned, it appears they were always occupied by Ceorls, Churles, Country-men, Colons or Clowns;The Names of ordinary People. by Ge­bures, Boors, Rustics, Plough, or Husbandmen; or by Neates, and Geneates, Drudges, Villanes, or Villagers. These three Saxon words being almost of the same Signification, tho very different in Sound, were always applied to the ordinary sort of People, called by us Folk at this day.’ Thus far the Doctor, which I will not contradict, tho he here makes all Ceorles Men to have been meer Drudges, which was not so, since those that held Land by Socage-Services, were as free as to all things else from the Power of their Lords, as our Tenants are at this day.

BUT I desire by the way, that this may not be unobserved, that I can no where find the word Colonus used for a Husbandman or Clown, in any of our antient Saxon Laws,Spelm. Gloss. in verb. tho Sir Henry Spelman gives us some Examples of the use of it in the German Laws, there signifying Liberi Ecclesiastici, quos Colonos vocant, and the King had also his Coloni; but this learned Author supposes that these Coloni answered our Sockmen, who were certainly Freemen and not Villains. Nor did Villanus signify a Villain, but a Country-man or Villager in general, till after the Con­quest; and then it was not from the Latin but French Idiom, that a Villain came to signify a Slave or Drudg.

HAVING now given you what I thought fit to say concerning the several Tenures, and ways of Conveyance of Lands in the Saxon Times, I shall proceed in the next place to discourse somewhat of the manner of the disposing of their Goods and Personal Estates, which they might do either by Deed or last Will in Writing, as at this day: But if they happened at any time to die intestate, then their Goods were equally divided between the Wife and Children of the Deceased; tho by a Law of King Edmund, the Relict, or Widow, was to have half her Husband's Goods, yet by the Laws of Edward the Confessor, it was de­clared, that in case any one died Intestate, then the Children were equally to divide the Goods; which I take to be understood with a Salvo of the [Page cxxii] Wife's Dower or Portion. As yet therefore the Ordinaries had nothing to do with the Administration, for Goods passed by Descent as well as Lands, and upon this Custom the Writ de Rationabili parte Bonorum was grounded at the Common Law, as well for the Children as the Wife's Part,F.N.B. p. 122. according as by the Body of the Writ may appear.

THE antientest Will that Mr. The Original of Ecclesiast. Jurisdict. of Testaments, set out by Dr. Lit­tleton, fol. 5. Selden says he hath observed before the Conquest, is, one of King Edgar's time, which Mr. Lambard Peramb. Cant. p. 548. has given us in his Perambulation of Kent, and that is of one Brithric, a Gentleman, or Thane, and his Wife Elswithe, wherein they devised both their Lands and Goods, and also gave his chief Lord and the Lady his Wife several noble Legacies to prevail with him that his Will might stand good. By which it should seem the Lands bequeathed were Feu­dal Lands (held by Knights Service) which could not be alienated without the Lord's Consent. But Mr. Selden there further takes no­tice, ‘That the Protection or Execution of this Testament, as well as the Probate, were within the Jurisdiction of the Lord's Court; and that especially because divers Lords of Mannors have to this day the Probate of Testaments by Custom continued, against that which is otherwise regularly settled in the Church.’

BUT as for Intestates Goods, he says, ‘The Disposition or Admini­stration of them was in the Saxon times in the chief Lord of him that died,Selden ut sup. fol. 15, 16. cap. 1. in case the Intestate were an immediate Tenant, and died at home in Peace: But in case he were no Tenant, or died in his Lord's Army, then it was (it seems) as other Inheritance, under the Juris­diction of that Temporal Court within whose Territory the Goods were. This may be proved out of the Laws of that Time, which ordain, that upon the Death of an Intestate, whom they call CWIALE AWE, the Lord Canuti Leg. cap. 68. is only to have the Heriots due to him, which are also appointed by Ejusdem Leg. cap. 68. the Laws of the same time, that by his (the Lord's) Advice or Judgment, his (the Intestate's) Goods be di­vided among his Wife and Children, and the next of kin, according as to every one of them of right belongs; that is, according to the nearness of Kindred, if no Children, or Nephews from them be: for it must, I suppose, be understood, that the Succession was such, that the Children excluded all their Kindred, and of their Kindred the next succeeded, according to that in Tacitus De Moribus Germanorum. of his Germans, whose Customs were doubtless mixed with our English-Saxons; Haeredes, says he, successorés (que) sint cui (que) liberi, & nullum Testamentum. But it seems Christianity afterwards brought in the free Power of making Testaments amongst them, Si liberi non sunt, proximus gradus in pos­sessione, Fratres, Patrui, Avunculi.’

‘BUT this is express'd only in case the Tenant died at home, and in Peace; for if he died in his Lord's Canut. Legi­bus, cap. 75. Army, both the Heriot was forgiven, and the Inheritance both of Goods and Lands was to be divided as it ought, which was, it seems, by the Jurisdiction of the Temporal Court, within whose Territory the Death (of the Intestate) or Goods were; for in that case, it is not said, that the Lord's Judg­ment was to be used, but that the Heirs should divide all; or, as the words in the Confessor's Law are, habeant Leg. Edw. Confess. cap. de Hereto­chiis. Haeredes ejus pecuniam & terram ejus sine aliqua Diminutione, & rectè dividant inter se; where the Right of the Heir both to Lands and Goods is expresly designed, but the Judg that should give it them, not mentioned. Therefore it seems, [Page cxxiii] it remained as other Parts of the Common Law, under the Tem­poral Jurisdiction, as by the F. S Instit. de bonorum possessione. Civil Law it was under the Praetors.’ Thus far this learned and great Author.

FROM whence we may make this Note, that the Probate of Wills was a Matter of Civil Cognizance before the Conquest, and for some time after, till, the Canon Law being more generally received in England, the Bishops Courts took this Power to themselves, supposed by Mr. Sel­den, in his 6th Chapter of his said Treatise, to be about the time of Henry the Second.

WE shall now, in the last place,Criminal part of the English Saxon Laws. go on to the Criminal part of the English-Saxon Laws, viz. the manner of Trial, Judgment and Execu­tion pass'd and inflicted on Offenders in those Times.

ALL Trials for Criminal Matters were then either in the Court-Leets, the Sheriffs-turn, or the County-Courts, All Trials in Court-Leets, Sheriffs-turn, or County-Courts. in which last the greater Offenders were commonly tried, and that most antiently by Witnesses and Juries, as at this day: for we find in the Mirror of Justices, Mirror, Cap. 5. Sect. 1. that King Alfred commanded one of his Justices to be put to death for passing Sentence upon a Verdict corruptly obtained, upon the Votes of the Jurors, whereof three of the Twelve were in the Negative. And the same King put another of his Justices to death for passing Sentence of Death upon an Ignoramus return'd by the Jury.

BUT the first Law we read of that defined the Number of Jury­men to be Twelve, The Number of Jury-men to be Twelve. was that of Aetheldred I. above two hundred Years before the Conquest, which says, In singulis Centuriis, &c. in English thus, In every Century or Hundred, let there be a Court, LL. Sax. Lamb. and let Twelve Antient Freemen, together with the Lord of the Hundred, be sworn that they will not condemn the Innocent, nor acquit the Guilty.

BUT whether there were any such thing as a Grand Jury or In­quest, we do not particularly find,Grand Jury. only we may reasonably conclude there was, because in the same Mirror we read that a Justice suffered Death for passing Sentence only upon the Coroner's Record; and ano­ther Justice had the same Punishment for condemning one without any preceding Appeal or Indictment.

YET the first time that we find any mention of a Jury by Mens Peers or Equals, is in the Agreement between Alfred and Guthrune the Dane, in these words in English, viz. ‘That if a Lord or a Baron be accused of Homicide, he shall be acquitted by twelve Lords;K. Alured. Concil. Brit. fol. 492. but if of inferiour Rank, he shall be acquitted by eleven of his Equals, and one Lord.’

BUT in Cases very doubtful, and where there was not sufficient Evidence by Witnesses, but only strong Presumptions of Guilt,Ordeal, what, and what [...] Trial. Somn. Gloss [...]r. in verbo Or­deal. in the times after King Alfred, Trials by Ordeal came in, which Somner in his Glossary says was derived from Or a Negative, or Privative, and Dal, which signifies Distinction, or Difference, that is, without any Distincti­on or Difference, and imports a just, impartial Judgment: it was of two sorts, by Fire or Water; by Fire, when the Person accused carried in his bare Hand a red-hot Iron some few steps; which, if it weighed but one Pound, was called single Ordeal, and so double, or treble, ac­cording to the Pounds the Iron weighed: or when he walked bare-foot, and blindfold, over and between certain red-hot Plow-shares, placed at a stated distance; if in doing this the Party was burnt, he was pronounced [Page cxxiv] Guilty; if not, he was accounted Innocent. Water-Ordeal was either when they cast the accused into Water, and if they did swim, were adjudged Guilty; if they sunk, Innocent: or else their Hands and Arms were put sometimes up to the Wrist,LL. Longob. lib. 1. tit. 9. c. 39. Glanv. lib. 14. cap. 1. in fine. sometimes up to the Elbow in boiling-hot Water; if they were scalded, they were esteemed Guilty; if not, Innocent. The Noble and Freemen were tried by Fire-Ordeal, the Peasants and Servants by Water Ordeal.

A great Example of the former you will find towards the latter end of the sixth Book,Fol. 79. concerning the putting of Queen Emma, Mother of Edward the Confessor, to this Fire-Ordeal by Plow-shares, upon suspi­cion of Incontinency with Ailwyn Bishop of Winchester: but indeed this Story is very improbable for several reasons; for first, the Crime she stood accused of could be no more than simple Fornication, which was then as well as now within the Cognizance of the Church, and for which no higher Punishment than the common Penance was inflicted. And further,See the Hist. Anno 1042. we find this Queen to have fallen into the King's Displeasure in the first or second Year of his Reign, and being not long after restored to his Favour, we do not read she was ever after questioned: and as for Robert, Arch-bishop of Canterbury, who is said to have been one of her chief Prosecutors, it is certain he was not consecrated to that See till about seven or eight Years after. Besides all which, Bishop De Praesul. p. 89, 90. Godwin in his Account of this Arch-bishop, further proves from Florence of Worcester, and William of Malmesbury, that Bishop Ailwin was dead Anno 1047, a Year before ever Robert was made Arch-bishop; and therefore this learned Author does wholly deny the reality of this Story. But to return again to our Ordeal.

THE first mention made thereof as we meet with, was at the Coun­cil of Mentz, and afterwards in the Council of Triers; but we have no Foot-step thereof in our English Laws, till it was brought into this Nation by the Council of Berkhamstead, under Bertwald Arch-bishop of Canterbury, Anno 647; and it after became inserted into those of King Athelstan, LL. Aethelst. Can. 23. tho it was certainly in use before that time.

I have little more to add concerning this way of Trial by Ordeal, but that it was under the Government of the Clergy, who never permitted it to be put in Execution but when they were present. And sometimes it was performed with the great Solemnity of receiving the Holy Eu­charist, especially if the suspected Person was of their Order and Function; and if the Party was cast, he was to suffer as Guilty.

THIS way of Trial by Ordeal continued long after the Conquest, but at last it was forbid by the Pope's Decree; and we have now no Remainders of it left, unless it be in the Country Peoples trying of Witches, who being tied with their Thumbs and Toes together, and so flung into the Water, if they sink, are accounted Innocent; if they swim, Guilty: but indeed if this Ordeal, either by Fire or Water, was performed by the help of the Devil, one would wonder it should ever be introduced, especially with such solemn Prayers and Prepara­tions, as you may find in Lambard's Explications of Law-terms, and in Matthew Parker Arch-bishop of Canterbury his Antiquities of the British Church. Vita Roberti Archiep. And on the other side, if it was assisted by a Divine Power, it is as wonderful how it came to be forbid by the Pope, as wholly unlawful.

[Page cxxv]BUT besides these ways of Trial abovementioned, upon more slight Suspicions, our English Saxon Ancestors were used to content them­selves with a Voyer dire, or the Oath of the Party suspected, and the concurring Testimony of other Men; the first attesting his own Inno­cency, the other attesting their own Consciences for the Truth of the former Testimony; and therefore were, and still are called Compurgators. Their number was more or less, and of greater or less Value, accord­ing as the Offence, or the Party suspected was of greater or less Con­cernment.

AND as for the way of Trial by single Combat or Duel, tho some Writers suppose it to have been in use before the Conquest, yet since I meet with no mention of it either in our Historians or Laws, I shall de­fer discoursing of it till I come to the next Volume.

HAVING now dispatched this Head concerning Trials, I'll proceed to the Judgments and Penalties that were inflicted on Persons for several Offences. And first I shall consider those against Almighty God, as Sacrilege,Sacrilege. which you will find upon the first introducing of Christianity to have been appointed by the Pope, as also by the Laws of King Eg­bert, either in making satisfaction of nine times the Value, or in case of Inability, to pay that Sum in Stripes; for not then, nor long af­ter was it punishable with Death:De Gestis Pontificum, l. 1. for William of Malmesbury tells us, that Theodered, the good Bishop of London, in the Reign of King Athel­stan, fell short of one thing, viz. That he caused certain Thieves to be hanged, who had robbed St. Edmunds Church in Suffolk, and were there held by some invisible Power, insomuch that they could not go away with what they had stolen, but were all taken and executed accordingly; for which piece of Severity he was much blamed.

THE next Offence was Working upon Sundays, Sabaoth-breaking▪ which by the Laws of King Ina, was punishable by Fine, if the Criminal were a Freeman; and by Whipping if he were a Bond-Servant.

BUT as for Blasphemy, Cursing or Swearing, either they were Crimes the Saxons were not guilty of, or else they inflicted no Punishments on those who were culpable of them; for I find no mention of them in the Saxon Laws.

AS for the Offences against both God and Man, I will first begin with Adultery and Fornication, and these were Capital amongst the Saxons: Adultery and Forni­cation. for by the Laws of Withred King of Kent, if a Military Man should (after that Council was ended, despising the King's Law, and the Judici­al Sentence of the Bishop's Excommunication) be taken in Adultery, he should pay to his Lord an hundred Shillings. ‘But afterwards by the Laws of King Cnute, a Wife found guilty of Adultery, should have her Nose and Ears cut off, and the Man was Fined or Banished: and by those of King Alfred, the Man convicted of Adultery with another's Wife, should pay to the Husband so abused, a Fine sutable to the Estate and Quality of him that was so injured.’

THE highest Offence against Man alone was Treason,Treason. and the Punish­ment for this Offence I find set down in the 4th Law of K. Alfred to this effect, viz. ‘That if any one by himself, or any other Person should attempt against the King's Life, he should lose his Life and Goods; or in case he will purge himself, he was to do it according to the Valuation of the King's Head.’ But in this the King had no greater a Prerogative [Page cxxvi] than divers other of his Subjects; for the same Law doth inform us, ‘That it ordained in all Judgments concerning other Men, whether Noble or Ignoble, whosoever should Conspire against his Lord, should lose both his Life and Estate, or else pay the Valuation of his Lord's Head.’

Coining and Clip­ping.I come next to the Coining and Clipping of Money, which was not ori­ginally such an Offence as was punish'd by Death; for the first Law that made it so was that of Ethelred, whereby it is left to the King's discre­tion, either to fine, or put to Death such Merchants as imported false Money; and all Port-Reeves of Towns who should be Accessary to it were made liable to the same: but for all this it was not even after the Conquest punishable by Death, but amputation of the Right Hand and Privy-Members.

Murder.AS for Murder, or killing a Man with Malice prepensed, it was by the Preface to King Alfred's Laws punishable by Death: And this and the former Law concerning Treason, will help us to interpret in what Cases the Wiregilds or Mulcts, that we find so frequently mentioned in the Saxon Laws, were to be paid for the Life of a Man, and particular­ly that Law of King Athelstan, which sets the Rate of these Wiregilds according to the Quality of the Person slain, from the King to the Pea­sant; that is, when the Party was Killed in some sudden Fray or Quar­rel without any Malice forethought.

THIS I take notice of, to obviate the Error of some who suppose, that all Murder, even of the King himself, was redeemable by Money, which was not allowed in any Cases but those we account Man-slaugh­ter at this Day;Manslaugh­ter. and shews the Antiquity of that distinction between Man-slaughter and Murder, which is now almost peculiar to England, and arose at first from the Proneness of our Nation to Fewds and sudden Quarrels; tho the like Custom is also to be found in the Antient Frisian and German Laws, if you will take the Pains to consult them. But as for Bloodshed,Maiming, &c. Striking, Maiming, Wounding, Dismembring, &c. they were all of them punishable by Mulcts or Fines, as you will see in the Laws of King Alfred, and other Places in this Volume.

Robbery and Burglary.I proceed in the next Place to Robbery and Burglary, which by the Laws of King Ina, were punishable by Death; only the Thief was ad­mmitted sometimes to redeem it according to the Estimation of his Head, and that I suppose was left to the discretion of the Judg, either to deny or allow. But for all other less Thefts, they were redeemable by Fines. And the Laws of Edward the Confessor, limited that Punishment of Death to Thefts of twelve Pence in value, or above.

Trespasses.AND Trespasses of a less Nature upon Lands and Goods, were to be punished by the Criminal's making Satisfaction to the injured Party, and his paying a certain Fine besides to the King; which by King Al­fred's Law was set at five Shillings; and in his Time other Actions were likewise used,Cap. 30. such as we call Actions upon the Case; and the Plaintiff not only recovered Damages for Trespasses done to Possessions and Goods, but also Costs for Injuries in Point of Scandal and Defamation, in case the Complainant specially declare that he was thereby disabled, or inju­red in his Preferment, and made Proof of the same, much like to the Forms of our Pleadings now.

Perjury.AS for Perjury which I have hitherto omitted, tho in strict Method it should have been mentioned before, as a Sin against both God and Man, [Page cxxvii] the Saxons were utterly Enemies to it, and punished it with perpetual discredit of their Testimony, and sometimes with Banishment, or with grievous Fines to the King, and Mulcts to the Judg. For that difference I find observed in those Days between Fines and Mulcts, LL. Aethelst. Cap. 12. LL. Canuti, c. 5. Spec. Sax. l. 3. Art. 53. LL. Edw. c. 18. tho the more Antient Times used them for one and the same; for I often find pars Mu [...]ctae Regi. In all these Matters where any Interest was vested in the Crown, the King had the Prerogative of Pardon, yet always a Recom­pence was saved to the injured Party; besides the Security of the Good-behaviour for Time to come, as the case required.

THESE Mulcts for all these Offences were set down in a Book, which was the Rule and Standard of the Judge's Sentence. And it is called in the Preface to the Laws of King Edward, the Doom or Judgment-Book; and Composition was to be made, and Satisfaction given, according to what was laid in this Judicial or Doom-Book.

THIS shews that Fines were then set out and appointed by Law,Fines set and ap­pointed by Law. and were proportioned not only according to Mens Offences, but Abi­lities of what they were able to pay; and were not in those Times left to the Arbitrary Wills and Humours of the Judg, to ruin Mens Fortunes and Families, and imprison their Persons during Life, perhaps only for a small Offence in a rash Word, or unmalicious Deed.

I confess this Introduction is longer than I first intended it, but herein I hope the Reader will excuse me, since I have presented him with a true Scheme of the Antient English-Saxon Government and Laws, as well Ecclesiastical as Civil, relating to the just Prerogatives of the King, as also to the true Rights and Liberties of the People: and this I have done for two Ends; first, to inform those of our own Nation as well as Strangers, that this Government before the pretended Conquest, agreed in the most material parts of it with those of the same Gothick Model all over Europe; and that if we do still labour to preserve our Antient Constitution, when most of our Neighbours have either lost or given up theirs, I think we do deserve Commendation, more especially since both Prince and People may have found an equal Interest and Happiness in it.

AND secondly, to shew, that neither the Danish nor Norman Inva­sions, (called by some Conquests) have at all altered it in any of the Sub­stantial parts of our Government or Laws, notwithstanding what some Men have so strenuously advanced to the contrary, out of what designs they themselves best know.

AS for what I have here laid down, if any thing appears either new, or of suspicious Credit, I desire to be no farther believed, than the Rea­sons and Authorities I have here produced will justify me; and therefore shall leave the Reader to make what Judgment he pleases of it, which if it doth not suit with mine, I shall not take it amiss, since I am suf­ficiently sensible how much Mens Opinions depend on their present In­terest, Education, or Course of Life: and I cannot but observe, that there are a sort of Men, whose Heads seem framed for such a set of Notions rather than others, which make them that they cannot easily digest any thing that clashes with them.

BUT I do not pretend to be infallible, or to propose my sense as a Rule and Standard to all others; Homo sum, nihil humanum à me alienum puto, as the Comick Poet hath long since well observed.

[Page cxxviii]ONE thing indeed I think I may pretend to in this Undertaking, and that is Integrity; for I look upon it a much viler thing, either to falsify, or conceal part of an Authority that makes against one, and use only so much as shall serve a present Turn, that it is to pick a Pocket: and as it is of far more dangerous Consequence to the Publick, if not found out; I must say it is likewise more easily to be discovered, since every Man may, if he please, consult the Authors that such Writers make use of, and so detect the Fraud.

BUT for those who think they may differ from me in some things with good Reason and Authority, and will please by their learned La­bours to give the World any better Information and Account of these Matters than I have done; I shall be so far from being displeased at them, that I shall upon full Satisfaction, readily own my self very much in their Debt, for making the World and me so much the Wiser: only I must desire to be treated as one, who, if I chance to be under any Error, am not so wilfully, nor (as I think) without great appearance of Reason and Authority on my side; since I call God to witness, that neither from a vain Ambition of Glory, nor prospect of any Temporal Advantage, nor design of gratifying any Party or Faction, have I wrote any thing that may disgust Men of different Principles and Notions.

AND I thank God for this great Blessing to us, that we live in a Time, when we may not only think or speak, but also safely write what we believe to be the Truth, to which all Mankind do owe Alle­giance; and therefore I hope I never shall abuse that invaluable Liber­ty, to the Prejudice of the Government, or that excellent constituted Church, of which I own my self a Member, being fully satisfied that the main End of all our Writings, ought to be for the Honour of God, and the Common Good of Mankind.