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evidence, that Hengist and Horsa were not mythical or imaginary, but actual and living characters;—that they were the leaders of the first Saxon invaders of Britain (A.D. 449) ;— that they arrived in three cuyls (keels or ships of war), in the Isle of Thanet, and performed the actions ascribed to them; -that their names were not mythical or equivocal, but of common occurrence among the Saxon tribes ;-that Hengist was the first king of Kent, and left a son Esc (thus showing that he was not a mere mythical or imaginary being) who succeeded him in the kingdom;-that the testimony of Bede to this portion of A.-S. history is direct and positive;—that his expression "duces fuisse perhibentur " instead of implying a doubt, alludes only to the "writings of the antients" or other authority, which had been furnished to him;-that the A.-S. Chronicle, whether compiled before or after the time of Bede, bears direct testimony to these historical facts;—that if it were compiled (as some imagine) by Abp. Plegmund in the ninth century, it affords a strong attestation to the fidelity of K. Ælfred's translation;—that the Jutes were a powerful tribe of the Germanic or Saxon race; that their language affords indisputable proof that they were not of Scandinavian origin;and that the whole current of history for the last one thousand years supports this view of the history of our AngloSaxon ancestors.

If we have done this, we shall have rendered some service to Science and to History;-we shall have vindicated our antient British, Anglo-Saxon, and Norman annalists and historians from the groundless imputations of learned antiquaries of the present day ;-we shall have concentrated public attention upon the earlier annals of our country, and shall have restored them to the high rank which they have deservedly held in the estimation of every student of AngloSaxon history.

CONSUETUDINES KANCIE.

THE

HE customs and usages recorded in the antient and venerable Custumal of Kent, form part of the Lex non scripta, or Common Law. Their origin and commencement date from a period anterior to all written records; but that they are coeval with the foundation of the Jutish kingdom of Kent (the earliest of those established by our A.-S. ancestors in Britain) may be inferred from the fact that we cannot point to any period of our history at which they did not exist.

We now proceed to give an account of the Record itself, that we may test its authenticity, and the degree of credit to which it is entitled,

The usages and customs specified in the record appear to have been allowed by the Justices in Eire in Kent, in the twenty-first year of the reign of K. Edward the First.

During the turbulent reign of his father, K. Henry the Third, the powerful nobles and clergy had greatly encroached upon the prerogatives and possessions of the crown.

To recover these, K. Edward appears to have proceeded in a somewhat irregular and oppressive manner.

According to Lord Coke

"The king wanting money, there were some innovatores in those dayes that perswaded the king that few or none of the nobility, clergy, or commonalty that had franchises of the graunts of the king's predecessors had right to them, for that they had no charter to shew for the same, for that in troth most of their charters, either by length of time, or injury of wars, and insurrections, or by casualty, were either consumed or lost: whereupon (as commonly new inventions have new wayes) it was openly proclaimed, that every man that held those liberties, or other possessions, by graunt from any of the king's

progenitors, should, before certain selected persons thereunto appointed, shew quo jure, quove nomine ill' retinerent, &c.; whereupon many that had long continued in quiet possession were taken into the king's hands-Eo quod nulla tabella constarent. Hereof the story saith: Visum est omnibus edictum ejusmodi post homines natos longe acerbissimum: qui fremitus hominum? quam irati animi? quanto in odio princeps esse repentè cœpit?

"The good king understanding hereof, and finding himselfe abused by ill counsell, and considering the statute of Magna Charta, at the parliament holden in the ende of his fourth yeare by proclamation, and at the petition of the Lords, and of the Commons now at this parliament, by authority of parliament provideth remedy, &c." (Co. 2 Inst. 280.) 24

That these oppressive proceedings were a direct violation of Magna Charta is evident upon a bare inspection of the 39th cap. of that celebrated statute:

MAGNA CHARTA.

"Nullus liber homo capiatur, vel imprisonetur, aut dissaisiatur, aut utlagetur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium, suorum, vel per legem terre."

CHAPTER XXXIX.

"No free man shall be taken, or imprisoned, or be disseised, or outlawed, or any otherwise destroyed. Nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land."

For the mutual protection of the prerogatives of the king, and of the liberties of the subject, as likewise to ensure a constitutional and legal mode of prosecuting these delicate investigations for the future, the statute of "Quo Warranto,”

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24 History affords a vivid picture of these unjust proceedings, and of the spirit with which they were resisted: "An exceeding number of writs of Quo Warranto' were brought against the prelates, clergy, nobles, and others, for their liberties, franchises, and privileges, for that, partly by length and process of time, and partly during the troublesome times and civill broiles and wars in the raignes of K. John and Hen. III, many of their charters, records of allowances, and other evidences and muniments, were destroyed, wasted, or made away with. Amongst others, a Quo Warranto' was brought against John Warren, Earle of Surrey, who, appearing before the justices, spake boldly and stoutly against this kinde of proceeding; and drawing an old rusty sword out of the scabbard, he exclaimed, 'By this my ancestors acquired their estate, and by this I will maintain it.'" (Co. 2 Inst. 495.)

commonly called "Statutum de Glocester," was established in the sixth year of the reign of K. Edward the First; to which statute (or rather to the proceedings under it) may be ascribed the compilation of the Custumal of Kent, which we have undertaken to illustrate.

To those who are not learned in the more antient laws of England, the following writ (selected from the statute of "Quo Warranto") may convey some idea of the mode of proceeding in these cases.

"Rex Vic.' Salutem.-Præcipimus tibi quod per totam ballivam tuam, videlicet, tam in civitatibus, quam in burgis, et aliis villis mercatoriis, et alibi, publicè proclamari facias quod omnes illi qui aliquas libertates per chartas progenitorum nostrorum regum Angliæ, vel alio modo, habere clamant, sint coram justiciariis nostris ad primam Assisam ad ostendendum cujus modi libertates habere clamant, et Quo Warranto, et tu ipse sis ibidem personaliter unacum ballivis et ministris tuis ad certificandum ipsos justiciarios nostros super his et aliis negociis illud tangentibus."

From the words of this writ the pleas were to be held before the justices of Assize-" coram justiciariis nostris ad primam Assisam;" but from another writ in the same statute, as well as from the statute itself, it should seem that justices of Assize and justices in Eyre were one and the same.

It may not be uninteresting to inquire shortly into the origin and antiquity of justices in Eyre.

It has been supposed that justices in Eyre (justiciarii itinerantes) were first instituted by K. Henry II; but they are rather of A.-Saxon origin. According to the Mirror, cap. 2, s. 15, it appears, that in the time of K. Alfred, and before,

Que auncientment soloient les royes en proper persons eroer de paiis in paiis pur inquirer, oier et terminer les peches, et pur redresser de torts, et ceux queux ne sont my attaine en tielz eires des

to

"That antiently the kings used go in their own proper persons, from county to county, to inquire, heare, and determine offences, and to redress wrongs, and those who are not impleaded in such eyres

personel trespasses faitz avant remeint al judgement de Dieu. Et puis pur multiplication de peches ne purront my les royes toutes faire per eux mesmes et pur ceo ilz envoieront lour commissaries que sont ore appels justices errants que nount power de oier et terminer nul personel trespasse forsque pur chose attaine, et nient termine in le darraine eire ou puis fait."

Again (Mirror, cap. 4)—“Estoiet auncient ordein que les royes per eux, ou per lour chiefe justices, ou per justices generals a touts pleas oier et terminer errassent de vii ans in vii ans per my touts counties pur receiver less rolles de touts justices assignes, des coroners, de inquiries, des escheators, de viscounts, de hundredors, de bailies, et de touts seneschals, &c."

And again-" Abusion est que justices et lour ministers, qui occient le gent per faux judgement, ne nont distreints al fere de autres homicides, que fist le roy Alfred que fist pender xliv justices in un anne tant come homicides pur lour faux judgements."

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Lambard, whose text of the Custumal we have adopted, says that he had transcribed it from "an auncient and faire written roll that was given to me by Maister George Multon, my father-in-lawe, and which sometime belonged to Baron Hales of this countrie." 25 And we find that the Custumal has received such a sanction from its antiquity, as to have

25 Perambulation of Kent, p. 569.

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