of the validity of the will in its generall nature it was transmitted to the Ecclesiasticall court CHAP. LXIII Of the Militia of this Kingdome during the reigne of these Kings I Undertake not the debate of right but as touching matter of fact shortly thus much that frō the Norman times the power of the Militia rested upon two principles the one the allegiance for the common defence of the Kings person and honour and Kingdome and in this case the King had the power to levy the force of the Kingdome neverthelesse the cause was still under the cognisance of the great councell so farre as to agree or disavow the warre if they saw cause as appeared in the defections of the Barons in the quarrell between King Steven and the Empresse and between King John and his Barrons The other principle was the service due to the Lord from the Tenant and by vertue hereof especially whenas the liberty of the Commons was in question the Militia was swayed by the Lords and they drew the people in Armes either one way or the other as the case appeared to them the experience whereof the Kings from time to time felt to their extreame prejudice and the Kingdoms dammage Nor did the former principle oversway the latter although it might seem more considerable but onely in the times of civill peace when the Lords were quiet and the people well conceited of the Kings aimes in reference to the publique which happinesse it was Henry the seconds lot to enjoy for he being a Prince eminent amongst Princes both for endowments of mind and of outward estate not onely gained honour abroad but much more amongst his own people at home who saw plainly that he was for forraigne imployment of honour to the Kingdome and not onely contented with what he had in England but imbarked together with the Laity against the growing power of the Clergy for the defence and honour of the priviledges of the Crown wherein also the liberties of the people were included They therefore were secure in the Kings way and suffered themselves to be engaged unto the Crown further then they or their ancestors formerly had been out of pretence of sudden extreame occasions of the Kingdome that would not be matched with the ordinary course of defence For the King finding by former experience that the way of Tenures was too lame a supply for his acquests abroad and that it had proved little better then a broken reed to the Crown in case of dispute with the people aimed at a further reach then the Lords or Commons foresaw and having learned a tricke in France brought it over although it was neither the first nor last trick that England learned to their cost from France which was a new way of leavying of men and Armes for the warre Hoveden 1181. by assessing upon every Knights fee and upon every free man of the vallew of sixteen Marks yeerly their certaine Armes and upon every free man of ten Marks yeerely valew their certaine Armes and upon every Burgesse and free man of an inferiour valew their certaine Armes 2. That these should be ready prepared against a certaine day 3. That they should be kept and maintained from time to time in the Kings service and at his command 4. That they should not be lent pledged sold or given away 5. That in case of death they should descend to the heire who if under age should finde a man to serve in his stead 6. That in case the owner were able he should be ready at a certaine day with his Armes for the service of the King ad fidem Domini Regis Regni sui 7. That unto this every man should be sworn I call this a new way of levying of Armes and men not but that formerly other free men and Burgesses found Armes albeit they held not by Knight service for it was so ordained by the Conquerours laws formerly used but now the King thrust in two clauses besides the altering of the Armes the one concerning the oath whereby all men became bound the other concerning the raising and ordering of men and armes which here seems to be referred to the King onely and in his service and this I grant may imply much in common capacity viz. that all the power of the Militia is in Henry the second But this tricke catched not the people according to the Kings meaning for the words ad fidem Regis Regni still left a muse for the people to escape if they were called out against their duty to the Kingdome and taught the doctrine which is not yet repealed viz. That what is not according to their faith to the Kingdome is not according to their faith to the King and therefore they could finde in their hearts sometimes to sit still at home when they were called forth to warre as may appeare in one passage in the daies of King John who had gathered together an Army for the opposing of forraine power at such time as the Pope had done his worst against him and the whole Kingdome which Army was of such considerable strength as I believe none since the conquest to this day exceeded or paraleld it but the Kings mean submission to the Popes Legate so distasted the Nobles and people as they left him to his own shifts and that in such manner as although afterwards he had advantage of them and liberty enough to have raised an Army to have strengthned himselfe against the Nobles yet the Lords comming from London brought on the sudden such a party as the King was not able to withstand and so he came off with that conclusion made at Renny meade which though in it selfe was honourable yet lost the King so much the more because it was rather gained from him then made by him CHAP. LXIV Of the Government of Henry the third Edward the first and Edward the second Kings of England And first a generall view of the disposition of their government ONe hundred and ten yeeres more I have together taken up to adde a period to this first part of discourse concerning English government principally because one spirit of arbitrary rule from King Iohn seemeth to breathe throughout the whole and therewith did expire The first that presents himselfe is Henry the third begotten by King Iohn when he was in the very first enterprize of oppression that occasioned the first Barons bloody warres and which this King was so miserable as to continue for the greatest part of his life and reigne and yet so happy as to see it ended about four yeeres before he died Although the soule be not ingendered from the parent yet the temperature of the body of the child doth sometimes so attemper the motion of the soule that there is in the child the very image of the fathers mind and this Henry the third lively expressed being so like unto his father Iohn in his worst course as if his fathers own spirit
rigged according to the Grecian guize it may be well supposed that there is some consanguinity between the Saxons and the Grecians although the degrees be not known The people were a free people governed by Lawes and those made not after the manner of the Gauls as Caesar noteth by the great men Caes com but by the people and therefore called a free people because they are a Law to themselves and this was a priviledge belonging to all the Germans as Tacitus observeth in cases of most publique consequence de majoribus omnes like unto the manner both of the Athenians and Lacedemonians in their Concio Histor Germ. Plutarch vit Solon Lycurg For which cause also I take the Gauls to be strangers in blood unto the Britons however nigh they were in habitation That some matters of action especially concerning the publique safety were by that generall vote concluded and ordered seemes probable by their manner of meeting with their weapons But such matters as were of lesse concernment the Councell of Lords determined de minoribus Principes Albinus Sax. 72. saith the same Authour Their Countrey they divided into Counties or Circuits all under the government of twelve Lords like the Athenian territory under the Archontes Xenophon These with the other Princes had the judicatory power of distributive justice committed to them Tacit. together with one hundred of the Commons out of each division The election of these Princes with their commission was concluded inter majora by the generall assembly and they executed their commission in circuits like unto the Athenian Heliasticke or Subdiall Court Emius which was rurall and for the most part kept in the open ayre in briefe their judicials were very sutable to the Athenian but their military more like the Lacedemonian whom above all others in their manners they most resembled In their Religion they were very devout saving that they much rested in the reverence they bare to their Priests whom they made the moderator of their generall Assembly their Judge advocate and executioner in Martiall Law therein submitting to them as unto Gods instrument They worship an invisible and an infinite Diety mans flesh is their sacrifice of highest account and as often as they make inquiry by lots they doe it with that solemne reverence as may put all the Christian world to the blush precatus Deos coelumque suspiciens and this done by the Priest of the Town if it be in publique causes or otherwise if private then by the master of the family so as they had family-worship as well as publique These things I note that it may appeare how nigh these invited guests resemble the old Religion of the Britons Avent Anal. Bowr 1.10 Bruter in Tacit. 125. and how probable it is that this Island hath from time to time been no other then as a sewer to empty the superfluity of the German Nations and how the influence of these old principles doth worke in the fundamentall government of this Kingdome to this present day These are the instruments chosen by God and called by the Britaines to be their deliverers from their enemies which they did indeed yet not swayed thereto by love of justice or compassion for if writers say true they were no better then high-way men both by Sea and Land Amian but by their love of spoyle and prey and by the displeasure of God against a dissolute people They professe friendship neverthelesse in their first entrance but espying the weaknesse of the Britons and feeling the strength of the Picts and finding the Land large and good they soone pickt quarrels with their Hoast made peace with the Picts and of fained friends becomming unfained foes to the Britons scattered a poore remnant of Christians some to the furthest corners of the Kingdome others into forraine Nations like so many seedesmen to sow the precious seed of life in a savage soile And those few that remained behind profiting under much misery by their doctrine and good example yeelded better blessings unto their new come guests then they either expected or desired And thus the miseries of poore Britaine became riches of mercy to the North and Easterne people and the ruines here the foundations of many famous Churches elsewhere Nor yet was mercy from the Britons utterly taken away nor their blood drawn out to the last drop or their name quite blotted out of the booke of fame for whereas two things make men miserable viz. the heavinesse of the burthen without and the failing of the heart within and Gods ordinary way of redresse of the former beginneth in taking away the later thus dealt he with the Britons for in danger as want of strength breeds feare and that by extreamity dispaire so dispaire oftentimes revives into a kind of rage that puts strength forth beyond reason I say beyond reason for cause cannot be given thereof other then Gods extraordinary dispensation in a judiciary way when he seeth the stronger to wax insolent over the weaker Thus the Britons fled from the Picts so long as they had any hope of reliefe from the Saxons but being become their enemies and pursuing them to the low water marke that in all reason they must either drinke or bleed their last then their courage revived and by divers victories by the space of 200 yeeres God stopped the hasty conquest of the Saxons the result whereof by truces leagues commerce conversation and marriages between these two Nations declared plainly that it was too late for the Saxons to get all their bounds being predetermined by God and thus declared to the world In all which God taming the Britons pride by the Saxons power and discovering the Saxons darknesse by the Britons light made himselfe Lord over both peoples in the conclusion CHAP. V. Of Austins comming to the Saxons in England his entertainment and worke DUring these troublesome times came a third party that wrought more trouble to this Isle then either Pict or Saxon for it troubled all This was the Canonicall power of the Roman Bishop now called the Universall Bishop For the Roman Empire having removed the Imperiall residence to Constantinople weakned the Westerne part of the Empire and exposed it not onely to the forraine invasions of the Goths Vandals Herules Lombards and other flotes of people that about these times by secret instinct were weary of their owne dwellings but also to the rising power of the Bishop of Rome Naucler 505. and purposely for his advancement Who by patience out rode the stormes of forraine force and tooke advantage of those publique calamitous times to insinuate deeper into the consciences of distressed people that knew no other consolation in a plundred estate but from God and the Bishop who was the chiefe in account amongst them the beauty of the Bishop of Rome thus growing in the West made him to out-reach not onely his owne Diocesse and Province but to minde a kind
a sufficient Seale to all weights and measures which they committed to some Clerke whom they trusted and at this day though a Lay-person beareth title of Clerke of the market And although anciently they might not interesse secularibus yet afterwards it became a part of their Office to assist Judges in secular causes to see that justice be not wronged and had the sole cognisance of all causes criminall belonging to the Clergy their tenants or servants and in their Synods their power reached to such crimes of Lay-men as came within the savour of the Canon though it were but in the cold sent as the Lawes of Athelstane and other his successors sufficienly set forth And thus dressed up let them stand aside that roome may be made for their traine CHAP. IX Of the Saxon Presbyters THese follow their Lords the Bishops as fast as they can hunt Concil Brit. p. 576. for being of the same Order as the lesse proud times acknowledged they would not be under foot and the others above the top True it is that the Bishops loaded them with Canons and kept them under by hard worke under the tricke of Canonicall obedience yet it was no part of their meaning to suffer them to become vile in the eyes of the Laity for they knew well enough that the Presbyters must be their bridles to lead and curbe the people and their eyes to see whether the winds from below blew faire or foule for them whose consciences already told them that they merited not much favour from the people They see it therefore necessary to inhaunce the price of a Presbyter somewhat within the aloye of a Bishop to the end that the Presbytery may not be too like the Babylonian Image whose head was Gold and feet of Iron and Clay A Presbyter therefore they will have to be of equall repute with a Baron Concil Brit. p. 448. Ll Ethelst 13. Ibid. 406. Concil Brir p. 273. L. Aethel c. 2. Ll. Canut c. 12. Mag. cent 8. cap. 9. and his person shall be in repute so sacred as that all wrong done thereunto must be doubly punished with satisfaction to the party and to the Church His credit or fame must not be touched by lay-testimony Nor is he to be judged by any seculer power but to be honoured as an Angell Such are these instruments of the Bishops government and these are put as a glasse between the Bishops and people and could represent the people to the Bishop black or white and the Bishop to them in like manner as they pleased and so under fear of the Bishops curse kept the people in awe to themselves and it CHAP. X. Of other inferiour Church-Officers amongst the Saxons THey had other inferiour degrees of the Clergy which because they are meerly subservient and not considerable in Church-government I shall onely touch upon them The first are called Deacons Deacons which were attending upon the Presbyters to bring the offerings to the Altar to read the Gospell to baptize and administer the Lords Supper Then follow the Subdeacons who used to attend the Deacons with consecrated vessels Sub. Deacons and other necessaries for the administring of the Sacraments Acolites Next these Acolites which waited with the Tapers ready lighted while the Gospell was read and the Sacrament consecrated Then Exorcists Exorcists that served to dispossesse such as are possessed by the Divell an Office as it may seem of little use Concil Brit. p. 54. Lecturers yet very ancient for they are found at the Synod at Arles which was within three hundred yeeres after Christs death Lecturers come next who served to read and expound and these were of use when Churches began to multiply and Presbyters grew idle Lastly Ostiaries Ostiaries which used to ring the bels and open and shut the Church-doores These are the severall ranks of Church-officers being seven in number for Bishops and Presbyters make but one and might be as thus ordered the seven heads of the beast whereon the woman sitteth Concil Brit. 261. An. 750. and with much adoe make up a kind of Church-service somewhat like a great Hoe in a ship-yard at the stirring of a little log and are neverthelesse well payd for their labour CHAP. XI Of Church-mens maintenance amongst the Saxons I Take no notice in this account of the Abbats and Priors other such religious men as they were then called nor can I passe them amongst the number of Church-governours or Officers being no other then as a sixt finger or an excrescence that the body might well spare and yet they sucked up much of the blood and spirits thereof But as touching the maintenance of those formerly mentioned who had a constant influence in the government of the affaires of the publique worship of God and regard of the salvation of the soules of the people I say their maintenance was diversly raised and as diversly imployed First through the bounty of Kings and great men Lands and Mannors were bestowed upon the Metropolitan and Bishops in free almes and from these arose the maintenance that ascended up in abundance to the higher Region of the Clergy but came againe in thinne dewes scarce enough to keep the husbandmans hope from dispaire otherwise had not the Prelates so soon mounted up into the chaire of pompe and state as they did I say these are given in free almes or more plainly as almes free from all service and this was doubtlesse soon thought upon for it was formerly in president with their heathenish Priests and Druids as Caesar noteth Com. 6. that they had omninm rerum immunitatem yet with the exception of works of publique charity and safety such as are maintaining of high waies repairing of bridges and fortifying of Castles c. and hereof the presidents are numerous The worke whereto this wages was appointed was the worship of God and increase of Religion and thus not onely many of the Kings Subjects were exempted from publique service but much of the Revenue of the Kingdome formerly imployed for the publique safety became acquitted from the service of the field to the service of the beade the strength of the Kingdome much impaired and the subjects much grieved who in those early times saw the inconveniences M. Paris in vit Eadrick Abb. and complained thereof to their Kings but could not prevaile This was the vintage of Kings and great men but the gleanings of the people were much more plentifull for besides the Courts which swelled as the irregularities of those times increased and thereby enriched the cofers of that covetous generation An. 1009. Concil Brit. 523. Ll. Aetheld 31. the greatest part whereof ought by the Canon to goe to the publique the best part of the setled maintenance especially of the inferiour degrees arose from the good affections of the people who were either forward to offer or easily perswaded to forgoe constant supply for the Church-men out
conquest was the Clergy a considerable part of the Kingdome in those daies when as in every Nation they grew checkmate and in this Kingdome had well nigh the one halfe of the Knights fees and thereby a principall part of the strength of the Kingdome besides the consciences of them all and for a reserve they had the Pope in the reare whose power in every Kingdome was little inferiour to that of the Kings owne and therefore sufficient to stop an absolute conquest unlesse it were first conquered But the King came in upon great disadvantages in both these regards For whereas his pretence upon his entery was to advance justice principally toward the Clergy who formerly were wronged by Harold or voiced so to be this bound him from injustice and oppression and furthermore the Pope had him in a double bond one as Prince of the English Clergy the other as Judge of the title of the Crown by the Kings own election and that by sentence for the King had merited of him if not to hold the Crown it selfe by fealty to the Roman See yet by such services as that the tripple Crown should be no loser The King therefore must resolve to have no more to doe with the Church then will stand with the Popes liking unlesse he meaned to adventure himselfe and all he had into the danger of the great curse of which the King would seem more sensible then perhaps he was Nor were those times of the Church so moderate as to bring forth Churchmen that would catch the good will of the Laity by condescention or Popes of that height of perfection as to part with one tittle of their great Titles much lesse ought of that pitch of power which they had griped though it would save the world from ruine In all which regards the Norman Duke was too far inferiour to attaine by conquest any thing in this Kingdome wherein the Pope or Clergy claimed ought to have or doe A third sort of people avoided the dint of conquest either by timely siding with the Norman or by constant resisting of him or by neutrality Of the first sort were many Hoveden lib. 6. both Lords and others that by affinity and consanguinity were become Englishmen to the Norman use others were purchased thereunto by the Clergy that were zealous for the Popes honour that was engaged in the worke Ingulsus 512. Of those likewse that were resolute in the defence of the liberty of their Country there were not a few that purchased their liberty who otherwise might under pretence of treachery have forfeited the same to the rapacious humour of the Conquerour and this was not done onely by valour for Normandy stood in a tottering condition with their Duke partly drawn away by the French that feared the Duke would be too strong for them and partly declining their own further ayd least their Duke should be too great for the Dutchy It was therefore wisdome in the Conquerour to settle the English affaires in the fairest way to gaine them for himselfe who had been so brave against him But the greatest number especially of the commons looked on while the game was playing as contented with the cast of the Dice what ever it should be These were afterwards by the King looked upon not as enemies as the president of Edwin of Sharneburne witnesseth sufficiently but upon such as either were or by faire carriage would be made his friends Gloss 227. and therefore he concluded them under a law of assurance that they that had been so peaceable should have and enjoy their Lands as intirely and peaceably as they had formerly done before his entry To conclude therefore this point if these three parties of the English Normans the English Clergy the stout English and the peaceable English be set aside from the title of conquest it will be probable that not one tenth part of the Kingdome were ever under other change then of the Governours owne person CHAP. LVI A briefe survey of the sence of Writers concerning the point of conquest THe clamours in story that the Conquerour altered and made laws at pleasure brought in new customes molested the persons and estates of the people with depopulations extortions and oppressions and others of that nature have made latter times to conclude his government to be as of a Conquerour meerly arbitrary and that he did what he list how different this conclusion is from the intent of those Writers I know not but if the Kings title and government was as a Conquerour then was his will the onely law and can administer no cause of complaint of wrong and oppression and therefore if these be taken in nature of complaints they declare plainly that there was a law in title or else there could have been no transgression or cause to complaine But if the Reader shall apprehend these passages in Writers to be no other then sober relations then were it not amisse to consider from what sort of men these complaints or relations doe proceed viz. from Writers that have been cloystered men little seen in affairs of State more then by common report and rumour prejudiced by the Kings displeasure against their Cloysters and therefore apprehensive of matters in the saddest sence and many times far beyond the truth and might as well be supposed to misrelate as to mistake For if we shall touch upon particulars I thinke no man will deny but the King allowed property indifferently as well to Normans as English if the premisses be rightly considered and therefore though somewhat be true of the plundering of houses of Religion persecuting of the English Nobility deposing of Bishops and Abbots whereof they speake yet all might be deservedly done in a legall way and in execution of justice whereof Histories are not altogether silent Neverthelesse if in the prosecution the King did shew a kind of rage and some rashnesse it might be imputed to the common infirmity of great men for as oppression upon those that are inferiour makes them mad so doth treachery against them that are superiour make them little other especially if they be overtaken with a fit of passion in the instant or their minds wrapped into a whirlpoole of affaires But the change of laws makes the greater noise wherein what change they suffered may appeare from the premisses if Writers have delt uprightly Otherwise generall imputations without particular instances will never sway opinion contrary to the currant of the laws that are published especially seeing we have observed the errour of the best Historian of those times in calling those things new which were anciently used in England before Normandy was in a condition of a state Yet if this should be granted and that there were such change of laws as is pretended it makes nothing to the point of conquest so long as the new laws are made by advice of common Councell and for the common good and so long as they are established to be
rules for government I remember it s affirmed by some of those ancient Writers that the Duke or King would have brought in the customes of Norwey but the earnest mediation of the English prevailed against it and it evinceth two things to my opinion first that there was question made what law should be established Secondly that notwithstanding the interest that the Normans had in the Kingdome they could not prevaile to bring in the whole body of their law or of the customes of Norwey which were not onely the prima materia of their law but also in kind had a setling at that very time in those places of this Kingdome where the Danes had their principall seate and therefore not altogether strange to the Saxons themselves The summe of which will be this that upon debate a law must be setled and that not the law of the Conquerours own will nor the law that suits with his desire but the ancient law of the Kingdome and therefore if at any time the unquietnesse of some of the English brought the King to some thoughts of arbitrary rule and to shake off the clog of Saxon law it was long ere it stirred and sprang up too late to raise the title of conquest and withered too soon to settle it As touching the change of customes for that also is imputed to the Conquerour it cannot be denied but some alteration might be in matters of smaller consideration yet are the Writers not without mistake in the particular instances For whereas they tell us that the Conquerour tooke away the custome of Gavell kinde and brought the custome of discent to the eldest sonne and that Kent saved their liberties and continued this custome of Gavell kinde I shall not contend about the liberties of Kent but must till I see better reason hold the opinion of the change of inheritance to be a meere conceit For besides what hath been already said concerning that custome of Gavell kind if we believe Glanvile the difference was between Lands holden by Knights service Lib. 7. cap. 3. and in socage the first of which in his time by ancient custome alwaies descended to the eldest and those Lands that were holden in Socage if not partible by custome in which case they went equally to all the sonnes went by custome in some places to the eldest in other places to the youngest so as the rule of inheritance in the Norman times was custome as well as in former times And furthermore if the custome of Gavell kind had been the generall custome of this Nation the King by his change had contradicted his own Prerogative and granted as great a liberty to his subjects as could have been invented For had the custome of Gavell kind happened upon the Lands in Knight service it had brought all the sonnes under the law of Wardship and had made a ready way to inthrall all men of worth and undoe all husbandry the first whereof had been as advantagious to the Kings private interest as both destructive to the publique Nor is it cleare from any Authour of credit that the Normans changed the tenures of Lands albeit that it cannot be denied but such Lands as he had by forfeiture or otherwise were in his own power to dispose upon what tenure he pleased for as well before the Normans time as long after tenures were like as the services were all at the will of the donor and were of as many individuals almost as the minds of the owners some being of more generall regard and publique use Littlet are recorded amongst the grounds of English laws none of which appeare to me to be of Norman originall although they received their names according to that dialect The next thing objected is the change of Language which thing some Writers tell us the King endeavoured or which is worse to be so absolute as to be absolute tyrant and to publish laws in a forreigne language that the people through ignorance might the rather transgresse and thereby forfeit their estates This if true so far differed from the nature of a Conquerour as rather proveth that he was put to his shifts Neverthelesse the thing tasteth so much of spleen as it might occasion distrust of other relations concerning this subject For besides that it is nonsence for a Conquerour to entitle himselfe by a cheat where he hath an elder title by conquest I shall in full answer to that calumny insert a passage of an Historian that was in the continuall view of publique affaires in those times who speaking of the Conquerour saith That he commended the Confessors laws to his Justices in the same Language wherein they were wonted formerly to be written Ingulfus lest through ignorance the people might rashly offend And another Authour saith M. Paris fragm Gulielm that the King had a desire to learn the English tongue that he might the better know their Law and judge according thereto It s probable neverthelesse that the laws were in the Norman tongue and it s no lesse likely that the pleadings in reall actions especially were also in the same Language else must the Normans be put to schoole to learne English upon perill of losse of their estates but that either the written laws were wholy concluded into the Norman Tongue or that the publique pleading of causes by word of mouth in all actions where the issue was left to the Countrey were in any other Language then English no advised Reader will conceive seeing it had been a madnesse for an English Jury to passe their verdict in any case wherein its likely many of them understood scarce a syllable of the Norman language much lesse ought of the matter upon which their verdict should be grounded Adde hereunto that it s not likely but the Conquerour inhibited the use of the English language in all matters of publique Record in as much as the Charters made by him to corporate Towns and Franchises were sometimes in the Saxon more generally in the Latine but seldome or never in the Norman dialect and that pleadings and indictments were entered in like manner in the Latine Tongue as formerly by an old custome brought in by the Clergy was used for the Clergy who had gotten the Key of knowledge and Law into their own custody layd it up in that Language whereof the Commons had little knowledge that they might thereby be enforced to depend upon these men for justice as well as for piety The Normans therefore either found it too hard to alter the former custome in such cases or else thought it the wisest way to choose the Latine as a third Language indifferent as well to the Normans as Saxons and best understood of any forreine Tongue besides and yet endeavoured to bring both peoples into one Language as they were intended to be one people and to presse the use of the Norman Tongue in publique affaires so farre as might consist with good government and justice leaving
ground of the heire who was a woman disadvantaged by a whispering of wilfulnesse and customary government like an Empresse which was too high a saile for an English bottome wherein so precious a treasure as the subjects liberties was to be shipped Thus provided Steven stepped up to the English Throne and with protestations of good government entered and made up the match both for Crown and Scepter the people waving the title both of Empresse and heire the pretensions of the E. of Bloys elder brother to Steven gave way to the common law and liberties of the subject to fasten root and gather recompence after the violence of the Norman blasts was out of breath thus making way over hedge and ditch of all Oathes till the King was quietly setled in the Throne Quietly said I that I must retract for he never had quiet during his life though generally was victorious and did as much as a King could doe that had the passions of a man and Souldier to give the subjects content The true cause whereof was an errour in the tying of the knot wherein he neither became theirs nor they his For the fealty that was sworn to him was but conditionall and eousque and yet the Kings promises were absolute and better observed then the peoples were possibly because his engagements were more For besides his protestations the King pledged his brother the Legate to the people and morgaged himselfe to his brother and to boot gave both to the Clergy and Barons liberty to build and hold Castles for their private security the issue whereof may mind that too much countersecurity from the King to the people is like so many Covenants in marriage that make room for jealousie and are but seeds of an unquiet life and thus it befell this Kings reigne His first troubles are brought in by Historians as if they dropped from Heaven yet probably came immediately from without viz. from beyond Sea where the Empresse was for as the Kings engagements were in their first heate on the one side so was also the Empresses choler on the other side and therefore might make the first assault and the Kings first successe therein falling out prosperously for him conceited him that he was strong enough to encounter his own Covenant although in truth he invaded but the skirts thereof I meane that collaterall security of Castles for by experience he now feeles that they are blocks in his way he must therefore have them into his own power But the Clergy are loth to forgoe their pawn till they had their full bargaine for now they were working hard for investures of the Mitred Clergy under the patronage of a Legate that had the King in bonds acted their parts so well as they ingaged the Nobility for their liberty of Castles in which atchivement the King was taken prisoner The Empresse betakes her selfe to the Clergy and by the Legates meanes procures a kind of election to be Queen but she sicke of the womans humour and thinking too much of the Empresse and too little of the Queen and forgetting that the English Crown would not fit an Empresse unlesse she could fit her head first to it choked her owne title by prerogative and so let the Crown slip through her hands which fell upon the head of Steven againe who maintained it by his Sword after by composition and then died a King and thus like a vapour mounted up by the Clergy tossed by tempests for a time and at length falling gave way to the Crown to have its free course to the Empresses son by Geoffery Plantagenet This was Henry the second Henry 2d. the most accomplished for wisdome courage and power of all his predecessors and one that wanted nothing but purpose to have undone what the foregoing Princes had done in the setling of the liberties of the people for the subjects were tired with the unquiet former times and the Clergy in distraction through the Schisme in the Popedome between Victor the fourth and Alexander the third and very unfitting all were to dispute the point of prerogative with so mighty a Prince And it was the wisdome of God to order his affaires so as that he was not very fit to dispute with the people in that case for his title to the Crown was not very excellent being neither heire to the last King that reigned nor to the last of that title I mean to Henry the first but sonne onely to the Empresse who was now alive and by descent was to be preferred before all other His title therefore is clearly by compact and agreement made between the Lords King Steven and himselfe all being then ready to try the right by the Sword to that to which none of them had any right at all at that time but by the favour of the people Nor did the King ever after dispute the strength of this title although before he died his mothers death conveyed over to him what right of descent soever was consistent with the Law of the Crown nor did occasion favour him thereto for as its never seen that any man is honoured by God with many advantages without proportionable imployment for the same so it befell with this King His great Territories in France brought jealousie in the reare and it strife and contention with France enough to turn his thoughts from waxing wanton against his own people and therefore his wisdome taught him to preferre peace at home to the chiefe of his prerogative to become somewhat popular and yet to loose nothing of a King thereby his way was to keepe the Church men down that had during his predecessors time grown whether more obstinate against the King or insolent over the people is hard to judge and in this he had the people to friend and might have prevailed much more then he did but that the people feared the threats of Rome more then he and himselfe if not guilty of Beckets death more the conceit of fame then there was cause these concurring with unnaturall troubles from most unthankfull sonnes made that spirit of his to faile that formerly knew no peere as it s often seen that the most generous spirits are sooner quelled with shame and griefe then with feare of any danger whatsoever Towards his Lay-subjects he was more regardant for the setling of Laws and executing of justice so as some have thought him the first wombe of our English laws others more truly the first Mecoenas since the conquest that brought on the spring time of a setled Common-weale and thereof left this faire testimony by his putting forth that Primrose of English laws under the name of Glanvill letting all men know that thenceforth England would no more vale it selfe in an unknown law but explaine it selfe unto the World to be a regular government such was the Kings Idea yet was he touched with so much of the common infirmity of Kings as shewed him to be a man especially in his old
voting without impeachment CHAP. LIX Of the state of the Clergy and their power in this Kingdome from the Normans time IF the prerogative of Kings prevailed not to its utmost pitch during the Normans time it did much lesse in these times succeeding wherein the Clergy tooke up the Bucklers and beate both King and Commons to a retreat themselves in the interim remaining sole triumphers in the field In their first adventure they paced the stage no man appearing to oppose Steven then was King by their leave and their Bondservant and they might have any thing sobeit they would suffer him to enjoy his Crown His brother the Bishop was the Popes servant the Churchmens patron and the Kings surety in whom the Clergies favour to the King and his good behaviour toward them and all men concentred Besides all this the King was but so upon condition and there being no better title then election conscience in those times was well enough satisfied in the breach of covenant on their part where on the Kings part it was first broken All this the King saw full well and therefore what can he deny to such benefactors Vacances of Churches he readily parts with and his right of investure of the Mitred Clergy he dispensed so as he opened the way to his successors of an utter dereliction of that priviledge He sees his brother the Legate deflower the Crown of England by maintaining appeales from the Courts in England unto the Court of Rome and he says nothing he is contented with the stumpe of the Crown and with Saul if he be but honoured above or before all others of the people it s his enough But the Clergy like the barren wombe hath not yet enough The King hath allowed them Castles and too late he sees that instead of being defencas against the Imperiall power of the Empresse they are now made bulwarkes against the lawfull power of a King he had therefore endeavoured to get them down and gotten some of them into his power The King himselfe is now summoned to answer this before a Legatine councell wherein his brother is President that was a bold adventure in them but it was extreame rashnesse in him to appeare and plead the cause of the Crown of England before a Conventicle of his own subjects And thus to secure Rome of supremacy in appeales he suffers a recovery thereof against his own person in a court of Record and so loses himselfe to save the Crown Thus are Synods mounted up on Eagles wings they have the King under them they will next have the Crown Within a while Steven is taken prisoner the Empresse perceiving the power of the Clergy betakes her case to them now assembled in Synod they now proud of the occasion and conceiting that both Law and Gospell were now under their decree publish that the election of the King belongeth unto them and by them the Empresse is elected Queen in open Synod Stevens brother leading the game and had she been as willing to have admitted of the Laws as Steven was she had so continued and had left a strange president in the English government for posterity But the Citizens of London who had made the way to the Throne for Steven reduced the Synod to sober consideration and helped the kings return unto his Throne again wherein he continued a friend to the Clergy during the rest of his time Henry the second succeeded him as brave a man as he but beyond him in title and power and one that came to the Crown without preingagement by promise or Covenant saving that which was proper for a King A man he was that knew full well the interests in the government the growing power of the Clergy and the advantages lost from the Crown by his predecessor and to regaine these he smoothes his way towards these braving men speaks faire proffers faire M. Paris An. 1155. he would act to increase the bounds of the Church he would have the Popes leave to doe him a kindnesse and sobeit he might gaine an interest in Ireland he would take it from the Pope who pretended as heire of Jesus Christ to have the Islands and utmost parts of the earth for his possession and as if he meaned to be as good to the Church as Steven was and much better he desires the Popes kindnes for the confirmation of the liberties and customs of his Crown and kingdom and no sooner desired then obtained This was the 2d example of a King of England but the first of an English king that sought to Rome for right in the Crown and thereby taught the Pope to demand it as a priviledge belonging to the Tripple crown Nor was Henry the second lesse benigne to the Church-men till he found by his deere bought experience that he had nourished Scorpions and would have suppressed them but was rather suppressed himselfe as in that shamefull successe of the death of Becket may appeare wherein he yeelded the day up to the Clergy who formerly scorned to stoop to the greatest Potentate on Earth The state of Kings is to be pitied who must maintaine a politique affection above and sometimes against nature it selfe Constit at Clarindon if they will escape the note of tyranny in their undertakings and of a feeble spirit in their sufferings For the King having made Becket Chancellor of England then Archbishop of Canterbury he became so great that his fethers brushed against the Kings Crown who begins to rouse up himselfe to maintaine his honour and prerogative Royall The Bishops side with Becket the King intending the person and not the Calling singles out the Archbishop and hunts him to soile at Rome yet before he went the King puts the points of his quarrell in writing and made both Archbishop and Bishops signe them as the rights of his Crown and as the Consuetudines Avitae but Becket repenting went to Rome and obtained the Popes pardon and blessing the rest of the Bishops yeelding the cause The particulars in debate were set down in the nature of Laws or Constitutions commonly called the Constitutions at Clarindon which shew the prevailing humour that then overspread the body of the Clergy in those daies and therefore I shall summe them up as follows cap. 1. Rights of Advousons shall be determined in the Kings Court. This had been quarrelled from the first Normans time but could never be recovered by the Clergy Before the Normans time the County courts had them and there they were determined before the Bishop and Sheriffe but the Ecclesiasticall causes being reduced to Ecclesiasticall Courts and the Sheriffe the Laity sequestred from intermedling the Normans according to the custome in their own Country reduced also the triall of rights of Advousons unto the Supreame courts partly because the Kings title was much concerned therein and the Norman Lords no lesse but principally in regard that Rights require the consideration of such as are the most learned
in the Lawes cap. 2. Rights of Tythes of a Lay fee or where the tenure is in question belong to the Kings court Pleas of debts by troth-plight belong to the Kings Court. cap. 3. These were Saxon Laws and do intimate that it was the indeavour of the Clergy to get the sole cognisance of Tythes because they were originally their dues and of the debts by troth-plight because that oaths seemed to relate much to Religion whereof they held themselves the onely professors The Kings Justice shall reforme errourrs of Ecclesiasticall Courts and Crimes of Ecclesiasticall person cap. 4. Appeales shall be from Archdeacons Courts to the Bishops Courts and thence to the Archbishops courts cap. 5. and thence to the Kings court and there the sentence to be finall No man that ever was acquainted with antiquity will question that these were received Laws in the Saxons time Constit at Clarindon nor did the Clergy ever quarrell them till the Normans taught them by curtesie done to Rome to expect more from Kings then for the present they would grant whereof see Cap. 47. But King Steven that was indebted to the Clergy for his Crowne and could not otherwise content them parted with this Jewel of supreame power in causes Ecclesiasticall to the Roman cognisance as hath been already noted but Henry the second would none of this cheate at so easie a rate This strooke so smart a blow as though the Popedome had but newly recovered out of a paralitique Schisme yet seeing it so mainly concerned the maintenance of the tripple Crown Alexander the Pope having lately been blooded against a brave Emperour made the lesse difficulty to stickle with a valiant King who in conclusion was fain to yeeld up the bucklers and let the Pope hold what he had gotten notwithstanding against this law and all former Law and custome And thus the Popes supremacy in spirituall causes is secured both by a recovery and judgement by confession thereupon Constit at Clarindon The King shall have vacances of Churches cap. 6. and power to elect by his secret Councell The party elected shall doe homage salvo ordine and then shall be consecrated This certainly was none of the best yet it was a custome not altogether against reason although not suitable to opinion of many yet we meet two alterations of the ancient custome First that the election shall be by the King and secret Councell whereas formerly the election of Bishops and Archbishops was of such publique concernment as the Parliament tooke cognisance thereof and that which was worse a Councell was hereby allowed called a secret Councell which in effect is a Councell to serve the Kings private aimes and unto this Councell power given in the ordering of the publique affaires without advice of the publique Councell of Lords which was the onely Councell of state in former times and thus the publique affaires are made to correspond with the Kings private interest which hath been the cause of much irregularity in the government of this Island ever since The second alteration resteth in the salvo which is a clause never formerly allowed unlesse by practise in Stevens time when as there was little regard of the one or the other Nor doth it concurre with the file of story that it should be inserted within these constitutions Constit at Clarindon seeing that writers agree it was the chiefe cause of quarrell between him and Becket who refused submission without the clause and at which the King stooke with the Archbishop for the space of seven yeeres which was six yeeres after the Constitutions were consented unto and concluded upon cap. 7. No Clergy man or other may depart the Realm without the Kings licence It s a law of Nations and must be agreed on all hands that no reason of state can allow dispensations therein especially in a doubtfull government where the Supremacy is in dispute and this the wilfull Archbishop never questioned till he questioned all authority but in order to his own for but the yeere before when he went to Turonn to the generall Councell upon summons M. Paris he first obtained licence from the King before he went No sentence of excommunication or interdiction to passe against the Kings tenant or any minister of state cap. 8. without licence first had of the King or his chiefe Iustice in the Kings absence Till the Conquest no Excommunication passed without warrant of Law made by the joynt assembly of the Laity and Clergy but the Conquerour having let loose the Canons Constit at Clarindon and the Clergy having gotten the upper hand in Councels made Canons as they pleased and so the Laity are exposed to the voluntary power of the Canon vid. cap. onely as well the Normans as untill these times Kings have saved their owne associates from that sudden blow and upon reason of religious observance least the King should converse with excommunicate persons ere he be aware The Laity are not to be proceeded against in Ecclesiasticall Courts cap. 9. but upon proofe by witnesses in the presence of the Bishop and where no witnesses are the Sheriffe shall try the matter by Iury in the presence of the Bishop A negative law that implieth another course was used upon light fame or suspition ex officio although the oath at that time was not borne into the world and that all this was contrary to the liberty of the Subject and law of the Land and it intimates a ground of prohibition in all such cases upon the common law which also was the ancient course in the Saxons times as hath been formerly noted Excommunicated persons shall be compelled onely to give pledge and not Oath cap. 10. or baile to stand to the judgement of the Church Upon the taking and imprisoning of the party excommunicate Constit at Clarindon the course anciently was it seemeth to give pledge to stand to order of this the Bishops were weary soon as it seemeth and therefore waved it and betooke themselves to other inventions of their own viz. to bind them by oath or baile both which were contrary to law for no oath was to be administred but by law of the kingdome nor did it belong to the Ecclesiasticall laws to order oathes or baile and therefore this law became a ground of prohibition in such cases and of the Writ de cautione admittenda cap. 11. Persons cited and making default may be interdicted and the Kings Officer shall compell him to obey If the Kings Officer make default he shall be amerced and then the party interdicted may be excommunicated So as the processe in the Spirituall Courts was to be regulated according to Law nor did it lie in the power of such Courts to order their own way or to scatter the censure of excommunication according to their own liking This together with all those that foregoe the Archbishop upon his repentance absolutely
like manner 11. That debts between Clerks due are determined in the temporall courts 12. That Bishops are compelled by distresse to cause Clerks to appeare in Lay courts without cause 13. That the Church looseth its right by the ceasing of rent or pension by the space of two yeeres 14. That Nuns are compelled to sue in the Lay courts for their right in possessions befalling by decease of their kindred 15. That Churches are deprived of their priviledges till they shew Quo warranto they hold them 16. That Ecelesiasticall Judges are stopped in their proceedings by Sheriffs and great men 17. That Bishops refusals of Clerks presented are examined in the Lay courts 18. That patrons of Religious Houses do oppresse them by extream Quarter 19. That Bigamy and Bastardy are tried in Lay courts 20. That the King suffers his Livings to be vacant for many yeeres 21. That the Clergie are wronged by the Statute of Mortmaine Here 's all and more then all that 's true and more then enough to let the reader see that the Writ Circumspecte agatis was but a face put on for the present after laid aside and the Clergy left to the bare Canon They likewise shew what the Clergy aimed at and in that they did not obtaine was to be attributed to the resolution of the Laity and not to any neglect in themselves for the Archbishop died in the service and its thought that grief for these maters was no little cause thereof But the times within a while grew troublesome Antiq. Brit. and the King in pursuit of the French warres being unadvised in in his way angred the people by his arbitrary levies of men and money Articuli cleri as it brought forth a State scoule little inferiour to a quarrell And to pacifie the Clergy he granted them the Writ de consultatione habenda in all matrimoniall and testamentary cases Stat. de consul tat 24. E. i. which were of their least doubted priviledges and this qualified the first Article of complaint next foregoing if such cause they had of complaint and this was all that the Clergy got at Edward the firsts hands Edward the second was a man that was neither well affected to Rome nor weake in spirit and yet so unhappy that his way neither promised good successe nor ever had it and so he became a servant unto the humours of his servants to keep his head above water but especially after he was chased by the Scots and quite out of breath he cals for help of all but first of the Clergy and bespeakes them with the Ordinance of Articuli cleri wherein he gives some satisfaction to the complaints formerly mentioned which it seems by Baronius were exhibited in Parliament Ecclesiasticall cognisance extendeth unto Tythes Oblations cap. 1. and Mortuaries and to pecuniary recompence In the first times neglect or deniall of Church-duties was punished in the Kings court by fine Afterwards the Bishop was joyned in that worke Ll. Alfred c. 9. Ll. Edw. cap. 6. and the tythable goods were seised eight parts whereof was taken to the Lords and the Bishops use by moities a ninth part left to the owner and the tenth to the Church Ll. Canut c. 8. nor had the Bishops any peculiar Courts of cognisance of causes till the times of the Normans nor as yet in those times had they power to all intents for though it be true that the Roman tribute of Peter-pence was allowed by the Conquerours law to the Bishops court Ll. Gul. 20. cap. Spicileg 180. yet we finde no law for Tythes and other profits to be recovered by the Ecclesiasticall court till about the end of Henry the seconds reigne or King Stevens time for at a Councell at London in Henry the seconds time it was ordained that three summons in the Popes name should be made to such as payed not their Tythes Binius Tom. 7 fo 661. An 1173. and in case they then refused they should be anathema and after that time in a Councell at Oxford under Steven Archbishop of Canterbury it was decreed that the Laity should be intreated first to pay their Tythes Baronius Annal. 1222. cap. 19. and then if necessity require that they should be compelled by Ecclesiasticall censure so as their power crept up by degrees in recovering of Church-duties as it did in testamentary matters and at length Henry the third worne and spent with the Barons warres about his latter end yeelded to Boniface the Archbishop his importunate demands and first gave liberty to the Clergy to be their own Judges and yet the Lay Judges although divers of them were Clergy men did not suddenly forbeare till this law came which gave some satisfaction to the first and fourth Articles of complaint foregoing Ecclesiasticall cognisance extendeth not to a fourth part of the Tythes of any Living cap. 2. nor to pecuniary mulcts for sinne saving by way of commutation The complaint of the Clergy in Henry the thirds time was against the Kings prohibition in case of Tythes indefinitly for in those times afterwards in Edw. the firsts time the Kings court had the cognisance of all Tythes and therefore in the Statute of VVestm 2. c. 5. the Writ of Indicavit was allowed in case of right of any portion of Tythes yet the Church still gained ground and about or before the death of Edward the first the Temporall Judge had yeelded unto the Clergy the cognisance of a portion of Tythes under the value of the fourth part Artic. 1. for in the Article next foregoing the Clergies complaint was that the Kings Justices held cognisance of the fourth part here they were confined thereto by this law which the Clergy could never remove For violence done to Clerks the offender shall render dammage in the Kings Court but Excommunication cap. 3. Penance and Commutation shall be in the Bishops court The Canon law had an ancient claime to the Protection of Clerks both as touching their persons and estates and prevailed so farre as they were thereby imboldned to offer violence unto others But as I formerly shewed by a Law in Henry the seconds time the Temporall Judge resumed his originall power and this became a sore evill between the Clergy and Laity for though it were allowed that Clerks should not be sued but before the Ecclesiasticall Judge in such cases yet it was no warrant for the Laity likewise to be called before the Ecclesiasticall Judge in such cases and therefore the Clergies complaints shew that the matter was doubtfull and that the Lay Judge generally maintained his jurisdiction although sometimes he disclaimed it as it may appeare in the case of a trespasse in the nature of a riot committed upon the priory of St Johns of Jerusalem in the seventh yeere of Henry the third when as it was adjudged per curiam that it belonged to the Ecclesiasticall court to punish Fits Harb 7 Hen. 3. prohibition 30 But
lost man had lesse care of such smaller matters and therefore allowed that his Judges of Assizes should be licenced by the Archbishop to administer oathes in their circuits in the sacred times of Advent and Septuagessima Antiq. Brit. Eccles 209. and this course continued till Henry the eights time The Clergy having thus gotten the bridle gallop amaine they now call whom they will and put them to their oathes to accuse other men or themselves or else they are excommunicated Henry the third withstood this course if the Clergy mens complaints in the times of that King Artic. 9. be true and notwithstanding the same the law holds its course and in pursuance thereof we finde an attachment upon a prohibition in this forme ensuing Put the Bishop of N. to his pledges that he be before our Justices to shew cause why he made to be summoned Regist fo 36. and by Ecclesiasticall censures constrained Lay persons men or women to appeare before him to sweare unwillingly at the Bishops pleasure to the great prejudice of our Crown and dignity and contrary to the custome of the Kingdome of England And thus both King and Clergy were at contest for this power over the peoples consciences to which neither had the right otherwise then by rules of law Bigamists shall not be allowed their Clergie Stat. Bigam 4 Edw. 1. cap. 5 whether they become such before the Councell of Lions or since and that Constitution there made shall be so construed Whatsoever therefore their Synods in those times pretended against the married Clergy seemeth by this law that they had Clergy that were married once and againe and yet before and after the Councell were admitted as Clerks in the judgement of the Law But the Generall councell interposes their authority and deprives them that are the second time married of all their priviledges of Clergy It was it seemeth twenty yeeres and more after that Councell before the Church-men in England were throughly reformed for either some were still Bigami at the making of this law or as touching that point it was vaine nor is it easie to conceive what occasion should after so long a time move such exposition the words of the Constitution being Bigamos omni privilegio clericali declaramus esse nudatos Now whither this slow reformation arose from the defect in law or in obedience thereto may be gathered from some particulars ensuing First it is apparent that the canons of Generall councels Generall councels eo nomine had formerly of ancient times gotten a kind of praeeminence in this Nation but by what meanes is not so cleare In the Saxon times they were of no further force then the Great councell of this Kingdome allowed by expresse act For the Nicene faith and the first five Generall councels were received by Synodicall constitutions of this Kingdome made in the joynt meeting both of the Laity and Clergy and during such joynt consulting the summons to the Generall councels was sent to the King to send Bishops Abbats c. but after that the Laity were excluded by the Clergy from their meetings and the King himselfe also served in the same manner the summons to the Generall councell issued forth to the Bishops immediately and in particular to each of them and to the Abbats and Priors in generall Bineus tom 13 Ps 2. pag. 674. M. Paris by vertue whereof they went inconsulto Rege and sometime Rege renitente and appeared either personally or by proxy Others came as parties to give and receive direction or heare sentence in matters tending to spirituall regards and for this cause issued summons sometimes even to Kings as at the councell of Lions aforesaid it s said that the Pope had cited Reges terrae alios mundi principes dictum principem meaning Henry the third M. Paris An. 1245. the matter was for assistance to the holy warre and to determine the matter Henry the third and his Clergy men And as in that case so in others of that kind Kings would send their Embassadours or Procters and give them power in their Princes name interessendi tractandi communicandi concludendi First of such matters quae ad reformationem Ecclesiae universalis in capite membris then of such as concerne fidei orthodoxae fulciamentum Bineus Tom. 3. Ps. 2. pag. 913. Tom. 4. Ps. 1 pag. 14. Regumque ae principum pacificationem or any other particul r cause which occasionally might be incerted so long then as Kings had their votes in the Generall councels they were ingaged in the maintenance of their decrees and by this meanes entred the Canon law into Kingdomes Nor was the vote of Kings difficult to be obtained especially in matters that trenched not upon the Crown for the Pope knowing well that Kings were too wise to adventure their own persons into forraine parts where the Generall councels were holden and that it was thrift for them to send such proctors that might not altogether spend upon the Kings purse allowed Bishops and Clergymen to be Proctors for their Princes that in the negative they might be pii inimici and lesse active but in the affirmative zealous and so make the way wider by the Temporall and Spirituall vote joyned in one Neither did Kings onely save their purse but they also made their own further advantage hereby for by the ingagement and respect which these his proctors had in councels they being for the most part such as were had in best esteem obtained better respect to the cause that they handled and speedier dispatch Neverthelesse the case sometimes was such as could not expect favour and then as the Kings temper was they would sometimes ride it out with full saile and to that end would either joyn with their Ecclesiasticall Proctors some of the Barrons and great men of their Realme to adde to the cry and make their affaires ring louder in the eares of fame although the Pope had the greater vote or otherwise would send an inhibition unto their Proctors and their assistants or an injunction to looke to the rights of the Crown as Henry the third did at the councell at Lions and this sounded in nature of a protest Foxe Mart. Ps. 2. 263. and within the Realm of England had the force of a proviso or saving But if the worst of all came to passe viz. that the councell passed the cause against Kings without any inhibition or injunction yet could it not bind the law of the Land or Kings just prerogatives no not in these times of Romes hower and of the power of darknesse For at a Synod holden by Archbishop Peckam An. 1280. the acts of the Councell of Lions was ratified and amongst others a Canon against non residency and pluralities and yet neither Councell nor Synod could prevaile for in Edward the seconds time an Abbat presenting to a Church vacant as was supposed by the Canon of pluralities the King whose
Charter and other Statutes during the reignes of these Kings SHattered asunder by broiles of Civill wars the free men having laid aside that regard of the ancient mutuall covenant and bond of Decenners are now become weake and almost inthralled to the lust of Kings Lords Pope and English Clergy and therefore it s no wonder if taxes and tributes were many and new although most of them deserved not to march under any banner but the colours of oppression nor did any thing save them from the worst tenure of all but the severall interests of those superiour powers which oftentimes did justle with one another and thereby gave the Commons liberty to take breath so as though for the present they lost ground and hunted upon a coole sent yet they still retained the prey within their view Sometimes they were cast farre behind other times they recovered themselves a truce is cried and laws are made to moderate all and determine the bounds of every one and thus comes the grand Charter into the Publique Theater The Historian saith it was the same with that of King Johns framing and yet by comparing them together we finde them disagreeing both in words and sence and therefore shall sum the same up as shortly as I can observing the difference of the two Charters as I passe along The first Chapter concerned the Church of which sufficient hath been spoken Mag. carta The Free men shall enjoy these liberties to them and their heires for ever cap. 2. The heire in Knightservice shall pay the ancient reliefe cap. 3. That reliefes were setled by the Saxons hath been already shewed and also that they were continued and confirmed by Henry the first onely in those times they were payed in Horses Armes c. but in after times all was turned into money which was more beneficiall for all cap. 4. Vide Stat. de Wardis 28 E. 1 Lords shall have their Wards bodies and Lands after homage received untill the full age though the Ward be formerly Knighted Glanvil lib 6. cap. 1. 4. The Law of Wardship may seem more anciently seated in this Kingdome then the Normans times for if the Statutes of Scotland beare any credit that Law was in Scotland before those times The Lords were not to have the Wardship before they were possessed of the tenure because it was theirs as a fruit of the tenure according to the Saxon law concerning distresse that it could not be in the power of the Lord to distraine till he was possessed of the service Stat. Marlbr cap. 6 7. And if by fraudulent conveyance the heire did hold the Lord out of possession a Writ of Ward did lie against him and if he did not appeare the Lord might seise the Lands unlesse in case of Wardship per cause de guard Stat. Marlbr cap. 16. prerog Reg. cap. 3. And in case the Lord would hold the Wardship longer then the full age of the heire an Assize did lie against the Lord for the heire could not enter without livery But if the heire were of full age at the time of the ancestors death the Lord could not enter the Lands and yet he should have a reliefe and the primer seisin And if the heire entered the Lands before homage done he gained no free hold Prerog Reg. cap. 13. though he were Knighted before as this Law provideth for it may seem that these times of civill warre brought forth a tricke of Knighting betimes as an honourable encouragement for young sparks to enter the field before they were compleat men of discretion to know whether the cause of warre was good or evill and yet reason might induce a conceit that he that was thought meet to doe Knight service in his own person might expect the maintenance fit for the ability of the person and honour of the service Grantees or their assignes or Committees of Wardships shall preserve the Land c. from waste cap. 5. and the tenants from extortion They shall yeeld up the same stocked if they receive them stocked cap. 6. The first of these is the law of common reason for its contrary to guardianship to destroy that which by their office they ought to preserve As touching the words of the Law the Grantees are omitted in the Charter of King John and also their assignees albeit that doubtlesse they were within the intent and meaning of the Law The matter declares plainly not onely the oppession of Lords upon their Wards but also the corruption even of the law it selfe that at the first aimed at the good of the publique and honour of Knightservice but now was degenerated into the base desire of profit by making market of the Wards estates and marriages that brought in strip and wast of Estates and niggardly neglect of the education and training up of the persons of the Wards and an imbasing of the generation of mankind and spoile of times Nor did these times ever espie or provide against the worst of these but onely endeavoured to save the estate by punishing the wasters in dammages by this law and by forfaiture of the Wardship by a Law made in the time of Edward the first Stat. Gloc. cap. 5. and this as well for waste done during the time of the custody as in the life time of his ancestors by another law in Edward the firsts time Stat. de vasto 20 E. 1. And because the Escheators and their under Officers used to serve themselves out of the estates of minors before they certified to the King his right and those were not within the Law of Magna Carta or at least not so reputed Artic. sup cart cap. 18. It was therefore afterwards provided that these also should render dammages in a Writ of wast to be brought against them The marriage of Wards shall be without disparagement cap. 7. It was an ancient law amongst the Germans and the Saxons brought it hither Tacitus mor. Germ. and as a Law setled it that marriage must be amongst equals but the Danes and Normans sleighted it and yet it continued and was revived Now as the Lord had the tuition of the Ward instead of the ancester so had he the care of the marriage in such manner as the ancester might have had if he had lived For in case the Ward were stolne and married the delinquent suffered fine and imprisonment Or if the ward married without the Lords consent he shall have the double value S at Merton cap. 6. and hold the land over till satisfaction But in case the Lord marrieth the Ward within fourteene yeeres of age to its disparagement cap. 7. he shall lose his Wardship thereby And if the Ward refuseth to accept of a marriage tendred by the Lord before her age of 16 yeeres West 1. c. 22. the Lord shall hold the Lands till he have received the full valew and in case where one tenant holdeth of