Issue or Demurrer and then to the Common-Law where upon Trial if the Defendant make default the Plaintiff shall have Judgement and Execution And if the Heir be in Ward to the King the Mother shall sue and recover her Dower in the Chancery And they tell us that it had power to prohibit Spiritual Courts and Courts of Common-Law yea to over-rule or reverse Judgements and yet the Common-Law held it's ground when it was concerned for neither were all suits there by Bill as in cases of Equity nor determined according to such rules nor did the power of Judicature rest in the breast of one Chancellor but in him joyntly with other Council of the King which were also learned Judges of the Law. For the Report informeth that Edward the Second had granted a Rent in Tail to the Earl of Kent who dying his Son under age and Ward to the King Edward the Third seised amongst other Lands the Rent and granted it to Sir John Molins Upon Petition the King refers the matter to the Arch-bishop and others of the Council calling to them the Chancellor A Scire Facias goes forth to Sir John Molins he upon appearance pleaded to the jurisdiction as a case belonging to the Common-law but it would not be allowed because it was to repeal the King's Charter And whereas it was objected that the reference was to the Archbishop and others and therefore the cause ought not to be determined in the Chancery it was resolved that it did properly belong to the Chancery by the Law And in the argument of the case it appears clearly that the King's Council there were learned in the Law. And the same is yet more evident by the Title of Bills in those days exhibited in the Chancery which was directed to the Chancellor and the King's Council and the Rule given Per tout les Justices Which I rather note for the shortness of the form of Bills in those days far different from these times wherein the substance of the complaint however small in it self is oftentimes blown out into so great a bubble that it breaks to nothing And the Statutes formerly mentioned do assert the same thing as touching the King's Council For though they speak of the Council or Chancery in the English Tongue yet in the original the words are Conceil en Chancery Having thus touched upon the matters under the Judicatory of the Chancery and Judges in the same In the next place the manner of proceedings comes to consideration For it seems they had been formerly very irregular and that contrary to the Grand Charter upon a bare suggestion in the Chancery the party complained of was imprisoned and no proceedings made thereupon For remedy whereof it was ordained That upon suggestions so made the Complainant was to find Sureties to pursue the Suggestions and that the Process of Law should issue forth against the party without imprisoning him and that if the Suggestions were not proved true the Complainant should incur the like penalty that the Defendant should have done in case he had been found Guilty But afterwards this later Clause was altered by another Statute because it was full of uncertainty and it was ordained that in such case the Complainant shall be imprisoned until he shall satisfie the Defendant of his Damages and furthermore shall make Fine and Ransom to the King. But because that the Defendant many times held his advantage even to extremity this course lasted not long but a new Law was made which put the power of awarding Damages in such cases into the Chancellour to do according to his discretion And thus the Chancery obtained power to award Damages which they never had formely and the Chancellour a Precedency both in the Chancery and of the Council in the Court of Star-chamber and in many cases in the Exchequer By the first he had a power in matters of Meum and Tuum by the last in matters Mei and Regis and by the other in matters Mei and Regni A considerable man certainly he was in the motions of Government but how much more if he be made Arch-bishop of Canterbury Cardinal and Legate à Latere or Arch-bishop Lord Treasurer and Legate à Latere as these days had divers times seen Extraordinary advancements bestowed upon the Nobility brings Honour to the Throne but if they be not men of noted Worth and Uprightness they make the Scepter stoop by stirring up envy in the Nobility and indignation from the people For seldom is it seen that Advancements are fed from the Crown though they be bred from thence but either maintained by new supplies from the peoples Purses or the ruine or decay of some Officers more ancient than themselves or both And such was the condition of the Chancellour he sucked fat from beneath and Bloud and Spirits from the Grand Chief Justiciar of England and so reduced that Honourable Potentate unto the degree of Chief Justice of the King's Bench leaving scarcely unto him the Name or Title of Lord. One thing more remaineth touching the election or nomination of this Great man. At the first he was no better than a Register or the King's Remembrancer or Secretary having also the Honour to advise the King in such matters as came within the circuit of the Writings in his custody and questionless Eo usque it is suitable to all the reason in the World that he should be of the King 's sole Nomination and Election But when it befals that instead of advising the King his word is taken to be the Rule and a Judicatory power put upon that and unto this is superadded that honourable trust of keeping and governing the Great Seal of the Kingdom with the continual growing power occasionally conferred upon him by the Parliament He is now become no more the King's Remembrancer but the Lord Chancellor of England and Supream Officer of State. And it seems but reasonable that he should hold his place by publick Election as well as the Grand Justiciar whose Plumes he borrowed and other Grand Officers of State did before him For he that will have his Servant to work for another must give the other that Honour of Electing him thereto nor was this laid aside nor forgotten by these times but a claim was put in for the Election or allowance of this principal Officer amongst others the Parliament obtaining a Judgement in the case by the King's Confession and so the thing is left to the judgement of future ages Viz. Whether a King that can do no man wrong can dissemble the Royal Assent in Parliament or declare himself legally in that manner by Proclamation CHAP. V. Of Admirals Courts THis is a third Court that maintained the King's Judicatory power in a different way from that which is commonly called the Common-Law and by many is therefore supposed to advance the King's Prerogative but upon mistaken grounds It is very true that the
make a Law somewhat short of a full freedom and yet outreaching that of Bondage which we since have commended to posterity under the Forest-Charter And yet for all that it proved a hard matter for Kings to hunt by Law and the Law it self is a Yoke somewhat too heavy for a Commonwealth to bear in old age if self-denying Majesty shall please to take it away CHAP. XXXV Concerning Judges in Courts of Justice THus far of the several Tribes and numbers of this Commonwealth which like so many Conduit-heads derived the influence of Government through the whole body of this Island and in every of which Judiciary power acted it self in all Causes arising within the verge of that Precinct some of which had more extraordinary trial before the King and his Council of Lords according as the parties concerned were of greater degree or the Cause of more publick concernment Examples hereof are the Cases between the Bishop of Winchester and Leoftin in Aetheldred's time and between the two Bishops of Winchester and Durham in Edward's time But custom made this Court stoop to smaller game in latter times and to reach at the practice of the County-Court by sending the Kings Writs to remove certain Causes from the cognizance of those rural Judicatories to their sublime determination And thus became the Council of Lords as an Oracle to the whole Nation and the King amongst the rest as the Priest that many times rendred the Answer or Sentence of that Oracle in his own sense and had it confirmed to him by an Oath se judicium rectum in Regno facturum justitiam per concilium procerum regni sui tenturum so as though he was the first in view yet the Council of Lords was the first in nature and the Cynosure to direct his tongue and actions From this Fountain issued also streams of Judicature into all parts by Judges itinerant under the Kings Commission to reform errors punish defaults in the ordinary rural Judicatories and to dissolve hard and knotty Cases and these were occasioned at the instance of the party and Alfred whose birth this was sent them forth in way of Association with the Sheriff Lord of the Fee or other ordinary Magistrate CHAP. XXXVI Of the Proceedings in Judicature by Indictment Appeal Presentment and Action FOr the proceedings in course the Saxons were wont to begin with matters belonging to the Church and afterward to Secular causes in which if the matters were criminal the most ancient way of proceeding was by Appeal of the party complaining But afterward in cases that concerned Damage Injury or Violence done to the Body of a man or his Estate the King was found to be therein prejudiced besides the prejudice immediately done to the Subject for a man disabled in Body or Estate is disabled to serve the King and the Publick and upon this ground a way was found out to punish the offender by Indictment besides the satisfaction done to the party wronged The proceedings against such Delinquents were by attachment of the party who thereupon gave Pledges for his appearance If the party could not be found a fugam fecit was returned and that was a conviction in Law and pursuit was made after the party by Huy and Cry. If he was thereby taken the ancient way was that of Hallifax-Law but in latter times he was imprisoned or admitted to Bail if the offences were bailable and if the party bailed made default or did not abide the Trial his Bail suffered as Principal If no Bail could be procured the Delinquent was imprisoned till he was legally acquitted but this imprisonment was only in nature of restraint If the Delinquent was found upon the Huy and Cry and would not yield himself he was in repute a common Enemy and as a Wolf any man might kill him as the Law was also the same in case of Vtlary At the time of tryal if at the Kings suit the Delinquent was indicted in this manner by any party present I D. C. do say for the King that I. S. is defamed by good men that he upon day of c. into the House and Goods of did cast fire and the same did burn or if it were for Bloodshed with a Sword did strike and wound him in the left arm and that this was done Feloniously or if the case required Traiterously and if I. S. deny the same I will for the King prove the matter against him as the King ought to do that is to say by Witnesses and Twelve men But if the complaint was at the suit of the party then the Prosecutor sued him upon Appeal in manner following I. C. appealeth D. H. here present for that E. Father Brother Son or Vncle according as the case was to I. C. being in the peace of God and of our Soveraign Lord the King at the dwelling house of E. at c. the said D. H. upon the day of in the year of with a Sword made a Wound of two inches long and six inches deep in the left pap of the body of the said E. whereof he died and this was done Feloniously and of Malice forethought And if the said D. H. shall deny the same the said I. C. is ready to prove the same against him in his body or as a Monk Woman or Clerk behoveth to prove the same that is by Champion for neither Monk Woman nor Clerk was by Law to justifie by Battle in their own person The several causes of Appeal and Indictment may be found in the Law-books to whom I refer the Reader it not being within the compass of this Discourse to fall upon the particulars I shall onely observe the difference between Indictments former and latter and between them and Appeals viz. that Appeals are positive Accusations in the name of the Prosecutor of the fact done by the party appealed whereas Indictments were onely a publication or affirmation of the same of a fact done by the party indicted and wherein Not guilty pleaded served onely as in nature of a Quere to usher in the votes of the Freemen concerning the fact Secondly the difference between former Indictments from these in these days consists in this that the ancient Indictments were in the name of one man those of the later sort are in the name of the Jury and the former were onely of a same the later of the fact A third way of bringing Controversies unto judgement concerned onely such matters as were of less consequence and these were introduced by way of Presentment in the name or behalf of the King in nature of a positive Accusation of one for a Crime first laid down generally and then asserted by a particular fact in this manner I say for our Soveraign Lord the King That H. here is perjured and hath broken saith against the King because whereas H. is or was Chancellour of the King and was
the Diocess of Lincoln into two Diocesses by advice of the Bishops Princes and other wise and holy men and turned the Abbey of Ely into a Bishop's See. But it was their wisdom to preserve the ancient Land-marks and no less both wisdom and care to continue their due Priviledges and Interests to each Every County had its Court and every Court its wonted Jurisdiction No complaint must be to the King's Court if right may be done in the County no distress must be taken but by Warrant from the County and that must be after complaint thrice made The County-court must be called as our Ancestors have appointed Such as will not come as they ought shall be first summoned and in case of default distrained at the fourth default the Complainant shall be satisfied out of the distresses so taken and the King also for his Fine These are the express Laws of the Conquerour's own establishment the last of which also Hen. 1. confirmed by another express Law saving that he would allow but of two Summons and two Distresses before execution And as it was one principal work that he undertook to reduce the Laws into course which had been intermitted during the violent times of his Father and Brother the first of whom never had liberty for reformation and the latter never had will so amongst other Laws he setled those concerning the County-court namely 1. That the Bishops Earls and chief men should be present for direction 2. That it should be holden once each month 3. That the Church-matters should precede and then the Crown-pleas And lastly the Common-Pleas besides some other particulars concerning pleading and proceedings in the handling of Causes Neither were these Causes of a petty regard onely but of greatest concernment One example I shall remind the Reader of and not recite in terminis but refer to Mr. Selden's own Pen. The occasion was this Odo the Conquerour's half Brother was by him made Earl of Kent and therewith had the gift of a large Territory in Kent and taking advantage of the King's displeasure at the Archbishop of Canterbury possessed himself by disseism of divers Lands and Tenements belonging to that See. Lanfrank the succeeding Archbishop being informed hereof petitioned to the King that Justice might be done him secundum legem terrae and the King sends forth his Writ to summon a County-court The Debate lasted three days before the Free men of the County of Kent in the presence of many chief men Bishops and Lords and others skilful in the Laws and the Judgment passed for the Archbishop Lanfrank upon the Votes of the Free men This County-court was holden by special summons and not by adjournment as was allowable by the Saxon Law upon special occasions And this Suit was originally begun and had its final determination in the County-court and not brought by a Tolt out of the Hundred-court as is supposed by an honourable Reporter nor by the ancient Laws could the Suit commence in the Hundred because the Lands and Tenements did lie in several Hundreds and Counties The upshot of all is that the County-courts in those days were of so great esteem that two of the greatest Peers of the Realm one a Norman the other an Italian did cast a Title in fifteen Mannors two Townships with many Liberties upon the Votes of the Free-holders in a County-court and that the Sentence was allowed and commended by the King and submitted to by all In the next place we are to come to the Hundred-courts of which there are by the Normans allowed two sorts the first whereof was holden twice a year This was formerly called the Torn and was the Sheriff's Court hereof little notice is taken saving that by the Laws of Henry the first its work seems to be much designed to the view of free pledges But the more ordinary Court is that which belongs to the Lord of the Hundred unto whom also belong the Fines in cases there concerned This Court is to be holden once in each month and no Suit to be begun in the King's Court that regularly ought to begin in the Hundred No Distringas shall issue forth till three demands made in the Hundred And three Distresses shall then issue forth and if upon the fourth the party appear not Execution shall be by sale of the Distress and the Complainant shall receive satisfaction But by the latter Laws of the same King there are but two Summons allowed and then two Distresses and in case no appearance be Execution shall be for the Complainant and for the King 's Fine Lastly as the case concerned either persons or places sometimes they used to joyn several Hundreds together into one Court but this was by special Commission or Writ As touching inferiour Courts of Towns and Mannors there 's little observation to be had being of too private a regard to come into fame in those rough times yet in Hen. the first 's Laws it is ordered that Town-courts should meet every month and that Lords should hold Pleas either in their own persons or by their Stewards and that the chief man in the Parish with four other of the chiefer sort and the Minister or Parish-Priest should joyn their assistance in that work But in nothing more did the Norman Kings shew their paternal love to the Commonwealth than in the Law of Pledges or Decenners for as of all other Beauties this suffered most blemish from the storm of the Norman Invasion so was it their especial care to renew the life thereof not now amongst the Natives onely but joyning the Normans to the Saxons in the same bond of Brotherhood utterly drowned thereby all memory of Lordly power and so of divers peoples making one conquered even Conquest it self if any were and made all joynt-partners in one common Liberty Every Free-man must be under Pledges to satisfie Justice in case of delinquency Over every nine persons under Pledges there must be one man in Authority View of free Pledges must be to see that the Decennaries be full and if any be departed to enquire the cause and if any be come in whether he be under Pledges or not And thus the Norman Kings had their people under treble guard one of Fealty the other of Association and the third that of Pledges and all little enough to secure that which they in their own Consciences might have some cause to question whether it belonged to them or not CHAP. XLIX Of the Immunities of the Saxon Free-men under the Norman Government THE freedom of an English-man consisteth in three particulars First in ownership of what he hath Secondly in voting any Law whereby that ownership is to be maintained And thirdly in having an influence upon that Judicatory power that must apply that Law. Now that the English under the Normans enjoyed all this freedom unto each Man 's own particular besides what
cases and of the Writ de cautione admittenda Persons cited and making default may be interdicted and the King's Officer shall compel him to obey If the King's Officer make default he shall be amerced and then the party interdicted may be excommunicated So as the Process in the Spiritual Courts was to be regulated according to Law. Nor did it lie in the power of such Courts to order their own way or scatter the censure of Excommunication according to their own liking This together with all those that forego the Arch-bishop upon his repentance absolutely withstood although he had twice consented and once subscribed to them having also received some kind of allowance thereof even from Rome it self Clergy-men holding per Baroniam shall do such services as to their Tenure belong and shall assist in the King's Court till judgement of Life or Member Two things are hereby manifest First that notwithstanding the Conquerour's Law formerly mentioned Bishops still sate as Judges in the King's Courts as they had done in the Saxon times but it was upon causes that merely concerned the Laity so as the Law of the Conquerour extended onely to separate the Laity out of the Spiritual-Courts and not the Clergie out of the Lay-Courts Secondly that the Clergie especially those of the greater sort questioned their services due by Tenure as if they intended neither Lord nor King but the Pope onely Doubtless the use of Tenures in those times was of infinite consequence to the peace of the Kingdom and government of these Kings whenas by these principally not onely all degrees were united and made dependant from the Lord paramount to the Tenant peravale but especially the Clergie with the Laity upon the Crown without which a strange metamorphosis in Government must needs have ensued beyond the shape of any reasonable conceit the one half almost of the people in England being absolutely put under the Dominion of a foreign power Sanctuary shall not protect forfeited Goods nor Clerks convicted or confessed This was Law but violence did both now and afterwards much obliterate it Churches holden of the King shall not be aliened without License It was an ancient Law of the Saxons that no Tenements holden by service could be aliened without License or consent of the Lord because of the Allegiance between Lord and Tenant Now there was no question but that Churches might lie in Tenure as well as other Tenements but the strife was by the Church-men to hold their Tenements free from all humane service which the King withstood Sons of the Laity shall not be admitted into a Monastery without the Lord's consent Upon the same ground with the former for the Lord had not onely right in his Tenant which could not be aliened without his consent but also a right in his Tenant's Children in regard they in time might by descent become his Tenants and so lie under the same ground of Law For although this be no alienation by legal purchase yet it is in nature of the same relation for he that is in a Monastery is dead to all worldly affairs These then are the rights that the King claimed and the Clergy disclaimed at the first although upon more sober consideration they generally consented unto the five last But their Captain-Archbishop Becket withstood the rest which cost him his life in the conclusion with this honourable testimony that his death Sampson-like effected more than his life For the main thing of all the rest the Pope gained to be friends for the loss of so great a stickler in the Church-affairs as Becket was In this Tragedy the Pope observing how the English Bishops had forsaken their Archbishops espied a muse through which all the game of the Popedom might soon escape and the Pope be left to sit upon Thorns in regard of his Authority here in England For let the Metropolitan of all England be a sworn servant to the Metropolitan of the Christian World and the rest of the English Bishops not concur it will make the Tripple Crown at the best but double Alexander the Pope therefore meaned not to trust their fair natures any longer but puts an Oath upon every English Bishop to take before their consecration whereby he became bound 1. To absolute allegiance to the Pope and Romish Church 2. Not to further by deed or consent any prejudice to them 3. To conceal their Counsels 4. To aid the Roman Papacy against all persons 5. To assist the Roman Legat. 6. To come to Synods upon Summons 7. To visit Rome once every three years 8. Not to sell any part of their Bishoprick without consent of the Pope And thus the English Bishops that formerly did but regard Rome now give their Estates Bodies and Souls unto her service that which remains the King of England may keep And well it was that it was not worse considering that the King had vowed perpetual enmity against the Pope But he wisely perceiving that the King's spirit would up again having thus gotten the main battle durst not adventure upon the King's rear lest he might turn head and so he let the King come off with the loss of Appeals and an order to annul the customs that by him were brought in against the Church which in truth were none This was too much for so brave a King as Henry the second to lose the scare-crow-power of Rome yet it befel him as many great spirits that favour prevails more with them than fear or power For being towards his last times worn with grief at his unnatural Sons a shadow of the kindness of the Pope's Legat unto him won that which the Clergy could never formerly wrest from him in these particulars granted by him that No Clerk shall answer in the Lay-courts but onely for the Forest and their Lay-fee This savoured more of courtesie than Justice and therefore we find not that the same did thrive nor did continue long in force as a Law although the claim thereof lasted Vacancies shall not be holden in the King's hand above one year unless upon case of necessity This seemeth to pass somewhat from the Crown but lost it nothing for if the Clergy accepted of this grant they thereby allow the Crown a right to make it and a liberty to determine its own right or continuing the same by being sole Judge of the necessity Killers of Clerks convicted shall be punished in the Bishops presence by the King's Justice In the licentious times of King Steven wherein the Clergy played Rex they grew so unruly that in a short time they had committed above a Hundred murthers To prevent this evil the King loth to enter the List with the Clergy about too many matters let loose the Law of feud for the friends of the party slain to take revenge and this cost the bloud of many Clerks The Laity haply being more industrious therein than otherwise they would have been
right and so the Lord became both Judge and Party which was soon felt and prevented as shall appear hereafter Another priviledge of the Lords power was over the Tenants Heir after the Tenants death in the disposing of the Body during the minority and marriage of the same As touching the disposing of the Body the Lord either retained the same in his own power or committed the same to others and this was done either pleno jure or rendring an account As concerning the marriage of the Females that are Heirs or so apparent the Parents in their life-time cannot marry them without the Lords consent nor may they marry themselves after their Parents death without the same and the Lords are bound to give their consent unless they can shew cause to the contrary The like also of the Tenants Widows that have any Dowry in the Lands of such Tenure And by such-like means as these the power of the Barons grew to that height that in the lump it was too massie both for Prince and Commons Of the power of the last Will. It is a received opinion that at the common-Law no man could devise his Lands by his last Will. If thereby it be conceived to be against common reason I shall not touch that but if against custom of the ancient times I must suspend my concurrence therewith until those ancient times be defined for as yet I find no testimony sufficient to assert that opinion but rather that the times hitherto had a sacred opinion of the last Will as of the most serious sincere and advised declaration of the most inward desires of a man which was the main thing looked unto in all Conveyances Voluntas donatoris de caetero observetur And therefore nothing was more ordinary than for Kings in these times as much as in them did lie to dispose of their Crowns by their last Will. Thus King John appointed Henry the Third his Successour and Richard the first devised the Crown to King John and Henry the first gave all his Lands to his Daughter and William the Conqueror by his last Will gave Normandy to Robert England to William and to Henry his Mothers Lands If then these things of greatest moment under Heaven were ordinarily disposed by the last Will was it then probable that the smaller Free-holds should be of too high esteem to be credited to such Conveyances I would not be mistaken as if I thought that Crowns and Empires were at the disposal of the last Will of the possessor nor do I think that either they were thus in this Kingdom or that there is any reason that can patronize that opinion yet it will be apparent that Kings had no sleight conceit of the last Will and knew no such infirmity in that manner of conveyance as is pretended or else would they never have spent that little breath left them in vain I have observed the words of Glanvil concerning this point and I cannot find that he positively denyeth all conveyance of Land by Will but only in case of disherison the ground whereof is because it is contrary to the conveyance of the Law and yet in that case also alloweth of a disposing power by consent of the Heir which could never make good conveyance if the Will in that case were absolutely void and therefore his Authority lies not in the way Nor doth the particular customs of places discountenance but rather advance this opinion for if devises of Lands were incident to the Tenure in Gavel-kind and that so general in old time as also to the burgage Tenures which were the rules of Corporations and Cities Vbi Leges Angliae deperiri non possunt nec defraudari nec violari how can it be said contrary to the common Law And therefore those Conveyances of Lands by last Will that were in and after these times holden in use seem to me rather remnants of the more general custom wasted by positive Laws than particular customs growing up against the common rule It is true that the Clergy put a power into the Pope to alter the Law as touching themselves in some cases for Roger Arch-bishop of York procured a faculty from the Pope to ordain that no Ecclesiastical persons Will should be good unless made in health and not lying in extremity and that in such cases the Arch-bishop should possess himself of all such parties goods but as it lasted not long so was himself made a president in the case for being overtaken with death e're he was provided he made his Will in his sickness and Henry the Second possessed himself of his Estate And it is as true that Feme coverts in these days could make no Will of their reasonable part because by the Saxon Law it belonged joyntly to the Children Nor could Vsurers continuing in that course at the time of their death make their Will because their personal Estate belonged to the King after their death and their Lands to their Lords by escheat although before death they lie open to no censure of Law but this was by an especial Law made since the Conquerour's time for by the Saxon-Law they were reputed as Out-Laws Nevertheless all these do but strengthen the general rule viz. That regularly the last Will was holden in the general a good conveyance in Law. If the Will were only intended and not perfected or no Will was made then the Lands passed by descent and the goods held course according to the Saxon Law viz. the next Kinsmen and Friends of the intestate did administer and as administrators they might sue by Writ out of the Kings Court although the Clergy had now obtained so much power as for the recovery of a Legacy or for the determining of the validity of the Will in its general nature it was transmitted to the Ecclesiastical Court. CHAP. LXIII Of the Militia of this Kingdom during the Reign of these Kings I Undertake not the debate of right but as touching matter of fact shortly thus much that from the Norman times the power of the Militia rested upon two principles the one the Allegiance for the common defence of the King's person and honour and Kingdom and in this case the King had the power to levy the force of the Kingdom nevertheless the cause was still under the cognizance of the great Council so far as to agree or disavow the War if they saw cause as appeared in the defections of the Barons in the quarrel between King Steven and the Empress and between King John and his Barons 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 Arms either one way or the other as the case appeared to them the experience whereof the Kings from time to time felt to their extream prejudice and the Kingdoms
and nothing shall hinder it but the special reservation of the donor and yet he saith that such gift or grant taketh not away the right of the Lord Paramount in his Tenure albeit the gift be in free Alms. Nevertheless it seemeth to be such restraint that the Templars and Hospitallers were fain to find out a new way which was to protect mens Tenements from execution of Law by levying crosses thereon albeit the right of the Lords was not barred and therefore Edw. 1. provided a Law to make this also in nature of a Mortmain within the Statute made in the seventh year of his Reign called the Statute de Religiosis by which it was enacted that in case of such alienations in Mortmain the Lord should have liberty to enter if he failed then the Lord Paramount or if he failed the King should enter and dispose of the same and that no license of Mortmain should be sued out but by the mean Lord's assent and where part of the premises remain still in the Donor and the original Writ mentioneth all the particulars And thus at length was this issue for the present stayed which hitherto wasted the strength of the Kingdom and by continual current emptying it into the mare mortuum of the Clergie consumed the maintenance of Knight service by converting the same to Clerk-service No Judge shall compel a Free-man to make Oath without the Kings command So is the sence of the Law rendred by an ancient Authour and I hope I shall not wrong the Text if I affirm that the Ecclesiastical Judge was included within the equity though properly he be not Balivus for the Law intends to shew that it is a liberty that the Subject hath not to be compelled to take Oath without the Kings especial command and by consequence it sheweth also that the King at that time and until then had the directory of Oaths for it was an ancient Liberty given in the Kings Charters unto such as they pleased viz. to impose Oaths and to punish for breach of Oath and this passed under the word Athae or Athas and so Edmund the Saxon King gave to the Abbey of Glastenbury amongst other Athas Ordulas and the Church-men that first procured vacations from Suits of Law during holy times procured a Law also to be setled by Edward the Saxon King and Gunthurne the Dane that Ordeal and Oaths should be forbidden upon the holy Feasts and lawful Fasts And a wonder it is how it escaped the gripe of the Clergie so long who catched at any thing that had but a glance of Gods worship in it And if this were the Subjects Liberty not to be compelled to Swear surely much more not to be compelled to accuse himself unless by the Law he be especially bound for it is Glanvil's rule Ob infamiam non solet juxta legem terrae aliquis per legem apparentem se purgare nisi prius convictus fuerit vel confessus in curia But the power of the Clergie now was grown strong and they begin to remember themselves and that Oaths are of a holy regard and they men for holiness best able to judge when and to whom they shall be ministred and therefore now they begin to enter their claim and to make a sure Title they get a grant from Pope Innocent to Steven Langton Arch-Bishop of Canterbury of a faculty of licensing administration of Oaths during the time of Lent and he accordingly enjoyed it during the mad time of Henry the Third But Edward the first quarrelled it and left it questionable to Edward the Second who being in his condition as a lost man had less care of such smaller matters and therefore allowed that his Judges of Assizes should be licensed by the Arch-bishop to administer Oaths in their Circuits in the sacred times of Advent and Septuagessima and this course continued till Henry the Eighth's time The Clergie having thus gotten the bridle gallop amain they now call whom they will and put them to their Oaths to accuse other men or themselves or else they are Excommunicated Henry the Third withstood this course if the Clergie-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 find an attachment upon a prohibition in this form ensuing Put the Bishop of N. to his pledges that he be before our Justices to shew cause why he made to be summoned and by Ecclesiastical censures constrained Lay-persons men or women to appear before him to swear unwillingly at the Bishops pleasure to the great prejudice of our Crown and Dignity and contrary to the custom of the Kingdom of England And thus both King and Clergie were at contest for this power over the peoples Consciences to which neither had the right otherwise than by rules of Law. Bigamists shall not be allowed their Clergie whether they become such before the Council of Lyons or since and that Constitution there made shall be so construed Whatsoever therefore their Synods in those times pretended against the married Clergie it seemeth by this Law that they had Clergie that were married once and again and yet before and after the Council were admitted as Clerks in the judgment of the Law. But the general Council interposes their authority and deprives them that are the second time married of all their priviledges of Clergie It was it seemeth twenty years and more after that Council 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 vain 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 whether 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 general Councils eo nomine had formerly of ancient times gotten a kind of preheminence in this Nation but by what means is not so clear In the Saxon times they were of no further force than the great Council of this Kingdom allowed by express act For the Nicene Faith and the first five general Councils were received by Synodical confirmations of this Kingdom made in the joynt meeting both of the Laity and Clergie and during such joynt consulting the summons to the general Councils was sent to the King to send Bishops Abbots c. but after that the Laity were excluded by the Clergie from their meetings and the King himself also served in the same manner the Summons to the general Council issued forth to the Bishops immediately and in particular to each of them and to the Abbots and Priors in general by vertue whereof they went inconsulto Rege and sometimes Rege
renitente and appeared either personally or by proxie Others came as parties to give and receive direction or hear Sentence in matters tending to spiritual regards And for this cause issued Summons even to Kings as at the Council of Lyons aforesaid it is said that the Pope had cited Regis terrae alios mundi principes dictum principem meaning Henry the third the matter was for assistance to the holy War and to determine the matter between Henry the third and his Clergie men And as in that case so in others of that kind Kings would send their Embassadors or Proctors and give them power in their Princes name interessendi tranctandi communicandi concludendi First of such matters quae ad reformationem Ecclesiae universalis in capite membris then of such as concern fidei orthodoxae fulciamentum Regumque ac principum pacificationem or any other particular cause which occasionally might be inserted So long then as Kings had their votes in the general Councils they were engaged in the maintenance of their decrees and by this means entred the Canon-law into Kingdoms 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 foraign parts where the general Councils were holden and that it was thrift for them to send such Proctors that might not altogether spend upon the King's purse allowed Bishops and Clergy-men to be Proctors for their Princes that in the Negative they might be pii inimici and less active but in the Affirmative zealous and so make the way wider by the Temporal and Spiritual vote joyned in one Neither did Kings onely save their purse but they also made their own further advantage hereby for by the engagement and respect which these their Proctors had in Councils 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 Nevertheless the case sometimes was such as could not expect favour and then as the King's temper was they would sometimes ride it out with full sail and to that end would either joyn with their Ecclesiastcal Proctors some of the Barons and great men of their Realm to add to the cry and make their affairs ring louder in the ears 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 look to the rights of the Crown as Henry the Third did at the Council at Lyons and this sounded in nature of a Protest and within the Realm of England had the force of a Proviso or Saving But if the worst of all come to pass viz. that the Council 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 Rome's hour and of the power of darkness For at a Synod holden by Arch-bishop Peckham An. 1280. the Acts of the Council of Lyons were ratified and amongst others a Canon against non-residency and pluralities and yet neither Council nor Synod could prevail for in Edward the Second's time an Abbot presenting to a Church vacant as was supposed by the Canon of pluralities the King whose Chaplain was disturbed enjoyned the Abbot to revoke his presentation upon this ground Cum igitur c. in English thus Whereas therefore that Decree bindeth not our Clerks in our service in regard that the Kings and Princes of England from time to time have enjoyed that liberty and prerogative that their Clerks whilst they attend upon their service shall not be constrained to undertake holy things or to be personally resident on their Benefices c. And if this present Law be considered whereof we now treat which took leave to enact a sence upon a former Canon so long since made and which is all one to makâ— a general Council will or nill it to tread in the steps of an English Parliament or which is more mean to speak after the sence of an English Declaration that had not yet attained the full growth of a Statute as was then conceived it will evidently appear that the power of a council made up of a mixture of a few votes out of several Nations or the major part of them being unacquainted with the Laws and Customs of Nations other than their own was too mean to set a Law upon any particuler Nation contrary to its own original and fundamental Law. And as the Voters sent to the grand Councils from England were but few so neither were the Proctors as may appear from this that Pope Innocent out of his moderation if we may believe it and to avoid much expence as he saith did order that the number of Proctors in such cases should be few But in truth the times then were no times for moderation amongst Popes and their Officers and therefore it was another thing that pinched for multitude of Proctors if their number had not been moderated might perhaps if not prevail yet so blemish the contrary party that what the Pope should get must cost him loss of spirits if not bloud And although the Bishops being fast Friends to the Pope by vertue of their Oath did prevail in power and the Pope had the controul of the Council yet the exceeding number of the Proctors on the contrary might render their conclusions somewhat questionable in point of honesty as being made against the mindes of the greater number of persons present though their votes were fewer To avoid this difficulty therefore for more surety-sake the Popes enlarged the number of Voters for whereas it seemeth to be an ancient rule that onely four Bishops should go out of England to the general Council in after-ages not one Bishop could be spared unless in cases of great and emergent consequence as may appear by the Pope's Letter to Henry Third and the case required it for the oppressions of the Pope began to ring so loud as the holy Chair began to shake Neither did Kings confine themselves to any certain number of Proctors notwithstanding the Pope's moderation but as the case required sent more or less as unto the Council at Pisa for the composing and quieting that great Schism in the Popedom Henry the Fourth sent solemn Embassadors and with them nigh eighty in all But unto the Council at Basil Henry the Sixth sent not above twelve or thirteen as Mr. Selden more particularly relateth And unto the Council at Lyons formerly mentioned the Parliament sent but six or seven to remonstrate their complaints of the extortions of the Court at Rome their Legates and Emissaries The sum of all will be that the Acts of general Councils were but Counsels which being offered to the sence of the Parliament of England might grow up
with certain select persons in every County did administer Justice in several Iters or Circuits so when Kings had once gotten the name of being chief in civil affairs as they had it in martial they soon left the Lords behind them who also were willing enough with their own case and had the name of doing all notwithstanding it was done by advice of the Lords and directory of Ministers or Commissioners thereto deputed And thus that Peace which formerly passed under the Titles of Pax Domini pax Vicecomitis which is pax Regni became by eminency swallowed up in that which was called the Kings Peace and the Justices called the Kings Justices and himself flattered into that Title of Fountain of Justice which belongeth onely to him that is The Most High or Chief Law-giver The manner how this honourable care of the Safety and Peace of the Kingdom was employed may be referred to a double consideration the one in execution of Justice upon Delinquents the other in preventing occasions of offence or delinquency by means whereof the publick Peace might be endangered The first was acted diversly according to the present sence of affairs for what was at first done by the Princes in their Circuits with one hundred of the Commons called Comites and that done per pagos vicosque was afterwards done by itinerant Judges sent from the King for the greatest matters and by Lords in their Leets Governours or chief Magistrates of Towns in their Courts and Sheriffs in their Torns as Judices stati for the ease of the people in matters of less moment I say I conceive it was in the Torn for I suppose no emergent Court taken up upon occasion could by the Law draw a necessity of a sudden appearance of all above twelve years of age at the same And for the same cause it seemeth that one certain Torn every year was holden for inquiries of Homicide unto which all above twelve years of age were to come except Barons Clergie and Women or otherwise all such had been bound to attendance on every Torn Nevertheless the work of the Torns continued not to hear and determine as anciently they had done For in Henry the third's time and formerly divers men had Prisons to their own use some as Palatines others as Lords of Franchise and others by power and usurpation and had the benefit of all Fines incident and by this means many were fined that deserved it not and some also that deserved worse To prevent which evil Henry the third took away that power of holding Crown-pleas And Edward the first took away their power to determine Escapes and left them onely the power of inquiry and to certifie at the next coming of the Justices But these injurious times had holden too long to be forgotten or laid aside by such cool pursuit Men were still ordinarily imprisoned and so continued oftentimes till the coming of the Justices itinerant For whereas in case of Bloudshed the Writ de odio atia was a remedy the other had no remedy but by procuring a Commission of Oyer and Terminer which ordinarily was a cure worse than the hurt As a remedy hereof Edward the first found out the new way of making Justices of Peace as may appear by the Statute at Winton which Law being purposely made for the conserving of the Peace providing for penalty of Crimes already committed as well as for the suppressing of future ordaineth That offences against that Law shall be presented to Justices assigned to enquire thereof and though these at the first might be itinerant yet it soon made way to resiant And before that Statute it seemeth the King had found out the way if that Note be true which is left revived into memory by that honourable Reporter which relating to the sixth year of Edward the first saith That then prima fuit institutio justiciariorum pro pace conservanda And yet some semblance there is that it was yet more ancient even in the time of Henry the first if I mistake not the sence of that clause in his Laws concerning Vagabonds he ordereth that they shall be carried Justiciae quae praeest although the Language be not so Clerkly as to speak the sence out Now though their Work as yet was but in tryal and they were onely trusted with power of inquiry yet it induced a new way wherein the Sheriff was not so much as intrusted to intermeddle and which not onely intermitted the course of his proceedings in such matters but also led the way to the dispoiling of the Sheriff's Torn and Lord's Leet of that little remainder that was left them of Judicatory power in matters that were against the Peace and made their Inquisitory power less regardful and eased the Justices itinerant of much of their Work in regard they were speedily to certifie up to the King and so these matters should be determined in Parliament according as those Justices were elected in Parliament who as it seems were jealous of giving the power of determining those offences into any sudden hand To sum up then the first part as touching the punishment of offences against the Peace the wheel is now in the turning the Leets and Torns begin to be slighted the labour of the Justices itinerant lessened the Commissions of Oyer and Terminer disused by the bringing in of a new Order of Justices for the Peace especially appointed and the Parliament as the supreme Providers left as the reserve for the asserting and maintenance of the same albeit that under it the power of determining much rested upon Justices or Judges that attended the King's Court after that the Common-pleas were setled and confined to a certain place The preserving of the Peace for the future consisted in preventing and suppressing Riots Routs unlawful Assemblies and in apprehending and securing of such as were actors and contrivers of such designes and other Malefactors And herein we are to consider 1. The Laws 2. The Means 3. The executive power Concerning the first there is no question to be made but that the power of making Laws for the maintenance of the Peace rested in the Parliament although endeavour possibly might be used to settle the same in the sole order of the King 's own person and therefore we find not onely the assize of Arms but generally the substance of the Statute at Winton to be formerly taken up by Proclamation by Kings predecessors to Edward the second who first that I can find put the same into force of a Law by Parliament finding by experience that Proclamations may declare the King's Mind but not command the Peoples Wills although peradventure the thing enjoyned was of ancient use and little inferiour to Custom or Common Law. Such are the Distempers of Civil Broils that bring up Peace in the rear as a reserve when their own strength is wasted rather than out of any natural inclination thereto A brief
this power within its own bounds than the watry Element upon which it sloated but it made continual waves upon the Franchise of the Land and for this cause no sooner had these great men savoured of the Honour and Authority of that Dignity but comes a Statute to restrain their Authority in the Cognizance of Cases only unto such matters as are done upon the main Sea as formerly was wont to be And within two years after that Act of Parliament is backed by another Act to the same purpose in more full expressions saving that for Man-slaughter the Admirals power extended even to the high water-mark and into the main streams And this leadeth on the next consideration viz. What is the subject matter of this Jurisdiction and Authority I shall not enter into the depth of particulars but shall reduce all to the two heads of Peace and Justice The Lord Admiral is as I formerly said a Justice of Peace at Sea maintaining the Peace by power and restoring the Peace by setting an Order unto matters of Difference as well between Foraigners as between the English and Foraigners as may appear by that Plea in the fourth Institutes formerly mentioned Secondly That point of Justice principally concerneth matters of Contract and Complaints for breach of Contract of these the Admiral is the Judge to determine according to Law and Custom Now as subservient unto both these he hath Authority of command over Sea-men and Ships that belong to the State and over all Sea-men and Ships in order to the service of the State to arrest and order them for the great voyages of the King and Realm and during the said voyage but this he cannot do without express Order because the determining of a voyage Royal is not wholly in his power Lastly the Lord Admiral hath power not only over the Sea-men serving in the Ships of State but over all other Sea-men to arrest them for the service of the State and if any of them run away without leave from the Admiral or power deputed from him he hath power by enquiry to make a Record thereof and certifie the same to the Sheriffs Mayors Bailiffs c. who shall cause them to be apprehended and imprisoned By all which and divers other Laws not only the power of the Admiral is declared but the original from whence it is derived namely from the Legislative power of the Parliament and not from the single person of the King or any other Council whatsoever But enough hath been already said of these Courts of State in their particular precincts One general interest befalls them all That as they are led by a Law much different from the Courts of Common-Law so are they thereby the more endeared to Kings as being subservient to their Prerogative no less than the Common-Law is to the peoples liberty In which condition being looked upon as Corrivals this principal Maxime of Government will thence arise That the bounds of these several Laws are so to be regarded that not the least gap of intrenchment be laid open each to other lest the Fence once broken Prerogative or Liberty should become boundless and bring in Confusion instead of Law. CHAP. VI. Of the Church-mens Interest BUt the Church-mens interest was yet more Tart standing in need of no less allay than that of the King's Authority for that the King is no less concerned therein than the people and the rather because it was now grown to that pitch that it is become the Darling of Kings and continually henceforth courted by them either to gain them from the Papal Jurisdiction to be more engaged to the Crown or by their means to gain the Papal Jurisdiction to be more favourable and complying with the Prerogative Royal. The former times were tumultuous and the Pope is gained to joyn with the Crown to keep the people under though by that means what the Crown saved to it self from the people it lost to Rome Henceforth the course of Affairs grew more civil or if you will graced with a blush of Religion and it was the policy of these times whereof we now treat to carry a benign Aspect to the Pope so far only as to slave him off from being an enemy whilst Kings drove on a new design to ingratiate and engage the Church men of their own Nation unto it's own Crown This they did by distinguishing the Office or Dignity of Episcopacy into the Ministerial and Honourable Parts the later they called Prelacy and was superadded for encouragement of the former and to make their work more acceptaple to men for their Hospitalities sake for the maintenance whereof they had large Endowments and Advancements And then they reduced them to a right understanding of their Original which they say is neither Jus Divinum nor Romanum but that their Lordships power and great possessions were given them by the Kings and others of this Realm And that by vertue thereof the Patronage and custody of the Possessions in the vacancy ought to belong to the Kings and other the Founders and that unto them the right of Election into such advancements doth belong not unto the Pope nor could he gain other Title unto such power but by usurpation and encroachment upon the right of others But these great men were not to be won by Syllogisms Ordinarily they are begotten between Ambition and Covetousness nourished by Riches and Honour and like the Needle in the Compass turn ever after that way Edward the Third therefore labours to win these men heaped Honour and Priviledges upon them that they might see the gleanings of the Crown of England to be better than the vintage of the Tripple Crown Doubtless he was a Prince that knew how to set a full value upon Church men especially such as were devout and it may be did somewhat outreach in that course For though he saw God in outward events more than any of his Predecessors and disclaiming all humane merits reflected much upon God's mercy even in smaller blessings yet we find his Letters reflect very much upon the Prayers of his Clergy he loved to have their Persons nigh unto him put them into places of greatest Trust for Honour and Power in Judicature and not altogether without cause he had thereby purchased unto his Kingdom the name and repute of being a Kingdom of Priests But all this is but Personal and may give some liking to the present Incumbents but not to the expectants and therefore the Royal Favour extended so far in these times as to bring on the Parliament to give countenance to the Courts and Judiciary power of the Ordinaries by the positive Law of the Kingdom although formerly the Canons had already long since made way thereto by practice I shall hereof note these few particulars ensuing Ordinaries shall not be questioned in the King's Court for Commutation Testamentary Matters or Matrimonial Causes nor other things touching Jurisdiction of Holy-Church Things
at length setled the Staple in certain places in several parts of the Kingdom But this extended onely unto the Commodities of Wool Leather and Lead for as yet the Manufactures were not come to maturity Secondly the endeavour was to advance Manufacture and principally such of them as are made of the Staple Commodities amongst all which Wool had the precedency as being the most principal and ancient Commodity of the Kingdom and the Manufacture of Wool of long use but had received little encouragement before these times for that it formerly had been the principal flower in the Flemish Garden and nourished from this Nation by the continual supply of Wool that it received from hence which was the principal cause of the ancient League between the House of Burgundy and this Crown But Edward the Third was now too well acquainted with the Flemings affairs by a joynt engagement with them in the Wars of France and therein had gained so good an opinion amongst them that he might adventure to change a Complement for a Courtesie The Staples beyond the Sea were now taken away he now inhibiteth the Importation of forein Cloaths and having gained these two steps onward of his way he represents to the Flemings their unsetled condition by these bordering Wars with France the peaceable condition of England and Freedom of the people then propounds to them an invitation to come over into England promiseth them share and share like with his own people with such other Immunities as they take his offer come over and brought their Manufacture with them which could never after be recalled So as now the Wool and Manufacture dwell together and like to Man and Wife so long as they care for one another both will thrive but if they come to play their Games apart both will be losers in the conclusion The third step to the advance of Trade was the Exportation of the Surplusage of the Staple Commodities that remained over and besides that proportion that should suffice for the Manufactures to which end it was ordered that no Wool should be exported till it had remained at the Staple by the space of Fifteen days That time was necessary and longer time might have been convenient but that the Markets beyond the Sea could not be delayed longer time without much damage to the Merchant and Owner for as much as Winter-time is no time to prepare Wool for the Manufacture and by over-long continuance of the Commodity upon the hand of the Merchant or Owner both the Commodity and the Manufacture might surfeit lie in despair and Trade choaked thereby For it is a necessary preparative to Trade to keep the Nation in some kind of hunger after the Staple-Commodities so as the main Stock be not too great to occupy and yet to leave enough to use But because this Nation formerly had been and as yet were used too much to forein Manufactures the importing of which did debase the home-made Manufactures and discouraged that work therefore the Law was made to reduce the vanity of Apparel which infected these times to more Sobriety Some delight in forein Commodities and Manufactures is doubtless profitable both for Trade and Shipping so as what is Imported exceeds not what is Exported For too much of that makes the Domestick Commodity contemptible the Nation poor and the people want work because it is a noted vanity of this Nation That they love things far fetcht and dear bought As a cure therefore to this disease English Cloth by Law is enjoyned to be worn by all persons under the degree of a Lord and so the former Inhibition of Importation of forein Cloaths was strengthned thereby And because the English Clothiers should not take advantage hereby to raise the price of their Cloaths to their own covetous pin therefore the Law also setled a certain Price and Measure and the same before sale was to be allowed upon view and for the goodness of the Cloaths and perfect working thereof Laws were likewise made against Exportation of all such as were not perfectly made A fourth step to the advancement of Trade was the compelling men to work for when publick employment calls men forth for service in the Field their mindes once in commotion or upon the Wing can hardly settle any where or stoop to the Perk again unless upon hope of prey or gain to be gotten thereby Such were the times of Edward the Third wherein partly for that cause and partly for the scarcity of men left from the Sword and Pestilence not onely Workmen were scarce and dear but even the Mass it self was grown stately the private delights of Kings and great men and scarce vouchsafing to be seen by common gaze but at a great distance The Priests had little Charity and the Poor had as little Money so as no Penny no Pater Noster A sick and very crazy time questionless was it when the Clergie were stately and the Poor idle The Priests Wages for this cause are now setled and they that would get much must get many littles and do much But the greater sore was amongst the poorer sort either they would not serve or at such wages as could not consist with the price of the Cloahts and the subsistence of the Clothier Lâ—aws therefore are made to compel them to work and to settle their Wages so as now it is as beneficial to them to serve the meaner sort of Clothiers as the richer sort for the Master must give no more nor the Servant take more and thus became labour currant in all places A fifth means to advance Trade was the setling of a Rule upon Exportation and Importation this wrought a double effect viz. The enriching of this Kingdom with forein Commodities and the maintaining of Shipping which was and is a principal means not onely of strength unto all Sea-bordering Countries especially regard being had to these three Considerations First That Importation does bring in more profit than Exportation disburseth Secondly That both Exportation and Importation be made by Shipping belonging to this Nation so far as may consist with the benefit of this Nation Thirdly That Exportation be regulated to the Overplus saving the main Stock at home The truth of the first will be evident from this ground That no Nation can be rich that receiveth more dead Commodities from abroad than it can spend at home or vend into forein parts especially if it be vended in its proper kind and not in Money And therefore the Laws provided that no Merchant should Export more Money than he Importeth and what he doth Export must be of the new stamp which it seemeth was inferiour in value to the old yet the times may prove so penurious that this rule may be waved for a season The second is no less beneficial for as it is in War so in all Trades the greater the number is that is employed the more effectual
Indefinite or terminated in the Natural Capacity of the King. And to make a full periodâ— to the point and make the same more clear I shall instance in one Precedent that these times of Edward the Third produced The former English Kings had Title to many Territories in France but Edward the Third had Title to all the Kingdom And being possibly not so sensible of what he had in possession as of what he had not He enters France in such a way and with that success that in a little time he â—â—ns the highest seat therein and so brought much honour to the English Nation and more than stood with the safety of the Kingdom For in the union of two Kingdoms it is dangerous for the smaller lest it be swallowed by the greater This was foreseen by the English who knew England did bear but a small proportion to France and complained of that inconvenience and thereupon a Law was made that the people of England should not be subject to the King or his Heirs as Kings of France Which manifestly importeth that an English King may put himself in such a posture in which Legiance is not due to him and that this posture is not onely in Case of Opposition but of diversity when he is King of another Nation and doth not de facto for that Time and Place rule an English King. Which if so I suppose this notion of Natural Absolute and Indefinite Legiance to the King in his Natural Capacity is out of this Kingdom if not out of the World and then the foot of the whole Account will be that the Legiance of an Englishman is Originally according to the Laws the sum of all being comprehended in the joynt safety of the people of England CHAP. IX Of Courts for Causes criminal with their Laws THe great growth of Courts founded upon Prerogative derogated much in these times from the Ancient Courts that formerly had attained the Soveraignty over the people and in the hearts of them all This was a hard lesson for them to learn but especially of the King's-Bench that was wont to learn of none and yet must be content to part with many of their Plumes to deck the Chancellor much of their work to busie the Prerogative Courts holden Coram Rege and more to those holden Coram Populo I mean The Courts of Oyer and Terminer Goal-delivery and Justices of Peace Those of Oyer and Terminer were now grown very common but less esteemed as being by men of mean regard nominated for the most part by the party that sued out the Commission which for the most part was done in behalf of those that were in danger and meaned not to be justified by Works but by Grace These escapes though small in the particulars yet in the full sum made the matter so foul as it became a common grievance and a Rule thereupon set by the Parliament for the regulating both of the Judges of such Court and the Causes The Commissions for Goal-delivery likewise grew more mean and ordinary The chief sort of Men in the several Counties had formerly the power but were found to savour too much of Neighbourhood and Alliance The leading of the work therefore is now committed to the Judges at Westminster and the other made onely Associates to them But above all the Courts of Sheriffs Coroners Leets were now grown sowr with Age having attained courses by common practice differing from Oppression onely in Name and yet were the times so unhappy as by these courses they had obtained favour and respect amongst the great men and so gained more power from above to abuse them below These men loved to be Commissioners of Oyer and Terminer and having learned how to make capital offences pecuniary found-such sweetness as they used not to be weary of their places though the Country grew weary of them and therefore disliking uncertaintes in such matters of benefit they cannot rest till they obtain more certain settlement in their places some for Years others for Life and some for ever The Disease thus contracted by degrees the Cure must be accordingly First the Sheriffwicks much dismembred to please the Court-favourites and fill the Kings privy Purse and all raised to the utmost peny of the full and beyond the just value A Law is made to restore the several Hundreds and Wapentakes to the Sheriffs and their Counties and all of them are reduced to the old Rent And it is likewise provided that none shall execute that place in County or Hundred who shall not then have sufficient Lands in that County to answer damages for injustice by them done And that no Sheriff shall serve in that place above one year and then not to be chosen again for that service till three years be past which latter clause was onely a medium taken up for the present occasion in regard that men of ability became very rare in these times especially in some of the Counties The election of the Sheriff is likewise not to be forgotten for though the Counties had the election of Coroners in regard they looked that no man should come nigh their bloud but whom they trusted yet the Sheriff came not so night their skin nor yet so nigh their Free-holds as anciently they had done for that their power in Judicature was much abated and so not worthy of so high regard yet in respect he was still to be a Minister of Justice and his place valuable more than formerly it was holden convenient that such as had the chief power of Judicature at Westminster viz. the Chancellour Treasurer Chief â—aron and the two Chief Justices should nominate the man that should be their Servant and in the Parliament nevertheless they interposed in that Election as often as they saw cause Secondly As touching Causes criminal which more ordinarily come within the cognizance of these Courts They generally held the same regard in the eye of the Law in these times that they had done formerly nevertheless in two crimes these times wrought diversly urging the edge of the Law against the one and abating it as to the other The latter of these is commonly called Petit Treason which is a murther destructive to the Commonwealth in an inferiour degree and at a further distance because it is destructive to that Legiance by which Families do consist and of whom Kingdomes are derived In former times it extended unto the Legiance between Lord and Tenant and Parents and Children But by this Law of 25 E. 3. it is reduced to the Legiance onely of Man and Wife Master and Servant Clerk and his Ordinary the last of which was now lately taken up and might have been as well laid aside as divers others were but that in these times much is to be yielded to the power of the Prelacy who loved to raise the power of the Ordinary to an extraordinary pitch that themselves might be the more considerable
wounds the heart and being of as little use in a Commonwealth as of benefit therefore is laid aside nor need I to speak any more concerning it There is one thing more somewhat like a Torniament but that it is in good earnest and that is called Duel This cometh likewise within the Cognizance of this Court but in a Ministerial way and as subservient to the Common Law in cases of Appeal and Right Hereof needs likewise little more than the naming and therefore I shall leave the Reader that would understand the particular managing thereof unto the discourse compiled by the Duke of Gloucester in Richard the Second's time Lastly As touching the antiquity of this Court though it may be great yet the power thereof was doubtful and scarce taken notice of in any publick Act of State till about these times whenas a complaint was made by the Commons for the encroachment of that Court upon the Liberty of People and bounds of the Courts of Common Law. Nor is it strange that such unquiet times brought forth such Precedents but much more strange that the Common Law held up its head against such violent irruptions of War. CHAP. XII Of the Peace YOu have seen the Kingdom in Armour now see it in Robes and you will say that its Majesty therein is as grave as it was in the other brave It is true the tempers are so contrary as it may be wondred how one and the same should be wise and willing for both but when God will do much he gives much and can make a People as one man like unto Caleb fitted both for War and Peace Besides the Times were now much conducing hereto It is vain to endeavour to allay Humours in the Body which are maintained by Agitation they must be purged out or the whole will still be endangered and therefore although Kings hitherto did endeavour to establish a peaceable Government yet being led by ill Principles of private Interests they laboured to little purpose But now the Scene is altered and one wise moderate King that was as wise as valiant did more than they all And first set a rule upon his own desires contenting himself with the condition of an English King and then upon his people making them contented with the condition of English men The order herein was no less observable for the former wrangling Times having trained up the mindes of men in a tumultuous way nor could they skill to pace in the steps of Peace the King led them into Foreign parts to spend their heat till being either weak or weary they are contented to return home and study the happiness of a quiet Life These men thus ordered the rest at home are made more cool like a Body after Physick and all are now contented to submit to Law and Magistracy 〈◊〉 fitting time now it was for Justices of Peace to come upon the Stage in their best garb For though the work was more ancient yet like some loose Notes laid aside in several places it was not to be found but at a distance and after long delay But Edward the Third sums up all into one brief and brings a compleat Model thereof into the World for future Ages to accomplish as occasion should lead the way The course was now established to have Justices setled in every County there to be resident and attending that Service First they were named Guardians or Wardens of the Peace but within a few Years altered their Title to Justices First they were chosen out of the good and lawful men of each County After that they were two or three chosen out of the worthiest men and these were to be joyned with Lawyers Then was one Lord and three or four in each County of the most worthy men adjoyned with Lawyers Afterward in Richard the Second's time the number of the Justices in each County might attain to the number of Six and no Steward of any Lord to be admitted into the Commission but within half a year all is at large so be it that the choice be out of the most sufficient Knights Esquires and Gentlemen of the County Again within two years the number in each County is set at Eight yet in all these the Judges and Serjeants were not reckoned so as the work then seemeth not so much as now a days although it was much of the same kind and yet it grew up into that greatness which it had by degrees Before they were setled by Edward the Third there were Custodes pacis which might be those whom we now a days call the High Constables of the Hundred whose work was purely Ministerial Afterward about the second year of Edward the Third the Guardians of the Peace had power of Oyer and Terminer in matters of riding armed upon the Statute 2 Edw. 3. After that they have power of enquiry by Indictment in certain Cases within four years after they have power of Oyer and Terminer in Cases of false Jurors and Maintenance and about ten years after that they obtained like power in matters of Felony and Trespass The way of Commissions in case of Life and Member thus opened another occasion of Commission offers it self for a determinative power in case of offences against the Statute of Labourers and the Cognizance hereof is soon setled upon Commissioners in the Counties specially chosen for that Service which questionless as the Times then stood was as commendable work as it was necessary For Souldiers were so many that Labourers were very few and those that once are accustomed to Arms think ever after meanly of the Handicraft nor will they ever stoop thereto after their Spirits are once elevated by mastery of Adventures And secondly those few Labourers that remained of the Sword Plague and other disasters of these wasting times understood their advantage and set a value upon their Labours far above their merit apprehending that men would rather part with too much of a little than to let their work lie still that must bring them in all they have But these Commissioners lasted not long though the work did The Justices of Peace are looked upon as meet for that service and it is a vain thing to multiply Commissions where the work may be done by one that before this time had obtained an additional Cognizance of all Causes of Riots Batteries wandering dangerous persons and offences in Weights and Measures and in Purveyance To them I say all this work concerning Labourers is also committed by the Parliament and herewith a way was laid open for Crimes of greatest regard under Felony to be determined by Trial in the Country according to the course of Common Law. The issue of all which was not onely ease to the people but a great escape from the rigour of the Council-Table in the Star-chamber and the Kings Bench at Westminster on the one side and also
the Legislative power in point of Doctrine which doubtless issueth from the same principle of Power with the former For if the Church which as a pillar and ground holdeth for the Truth be the company of professing Believers then ought it not to seem strange if these in their representative do intermiddle with this Power or rather duty And for the matter in fact neither did the King challenge this Power nor did the Parliament make any difficulty of Conscience in executing the same and yet there were many Learned and Conscientious men of that number They therefore as touching the Doctrine proceed in the same way with that formerly mentioned concerning the Discipline And a Committee also is by them made of the King and Learned men to set down rules for Faith and Obedience and for the order of the publick Worship of God according to the Word of God. And these rules are confirmed by a Statute so as the King hath a power in the point of Doctrine but it is a derivative power it is a limited power to himself and not to his Successors and to himself and others joyned with him And lastly nothing must be done contrary to the Laws of the Kingdom Secondly The Parliament hath not onely a right to grant and limit this power unto others but also to execute the same immediately by its self And therefore before they granted this power to this Committee whereas formerly the Pope usurped the power to be the Omega to the resolves of all Councils the Parliament intercepted that to their own Jurisdiction in flat opposition to the infallibility of the Roman Chair so far as to disherize some Opinions which by the sentence of that infallible mouth had been marked with that black brand of Heresie And what they did before this Act of Delegation to the King and other Committees for this work they did afterwards as not concluding their own power by any thing that they had so done as may appear by their Censure of the Translation of the Bible made by Tindall By their establishing another Translation By their ordering and appointing what persons might read the same By their qualifying the fix Articles and the like The Parliament then hath a power which they may grant and yet grant nothing away they may limit this power in others as they will and yet not conclude themselves And the King by accepting this limited power must disclaim both the Original and absolute Right and cannot claim the same by right of Headship or Supremacie This was one great Windfal which the Parliament had from the ruines of Rome not by way of Usurpation but re-seizure For their possession was ancient and though they had been dispossest yet that possession was ever under a continual claim and so the right was saved A second that was no less fatal unto that See was the loss of all power over Ecclesiastical persons in this Kingdom For whereas the Popedom had doubly rooted it self in this Nation one way by the Regulars the other by the Seculars the Parliament by the dissolutions of Monasteries c. consumed one to ashes and by breaking the fealty between the other and the Pope parted the other root and the stock asunder and thence ensued the down fall of this tall Cedar in this Nation and Prelacie now left alone must fawn elsewhere or lie along a posture wherein that rank of men can never thrive Up again they peep and espying a King that loved to towre aloft they suddenly catch hold promising their help to maintain his flight and so are carried up and like a Cloud born between Heaven and Earth making the Commons beholding to them for the Kings Sunshine and the King for their interests in the people and for his superlative advancement above them all Now though the English Prelates may think their Orb above the Winds yet were they herein deceived The Parliament had power in their Election before the Pope usurped that to himself now that they are discharged Kings are possessed of them by Conge d'eslire but it is not by way of restitution For Kings were never absolutely possessed of any such power but as Committees of Parliament and by delegation and concession from them and therefore must render an account to them and abide their judgement when they are thereto called Thirdly The Parliament had the disposing and ordering of all the Church-Revenues as the Laws concerning Monasteries Sanctuaries Mortuaries First fruits Tenths Annates and suchlike sufficiently manifesteth Fourthly The Parliament had the power of granting Licenses Dispensations and Faculties setting a Rule thereunto as in case of Non-residency and delegating the power to Committees whereof see more in the Chapter following concerning ordinary Jurisdiction Fifthly The Parliament reserved the Cognizance of all Appeals for final Sentence unto themselves and disposed of all the steps thereunto as unto them seemed most convenient For though it be true in some cases the Archbishop of Canterbury had the definitive Sentence and in other cases the Convocation yet was this but by a temporary Law and this also granted to them by the Parliament which took it away from the Pope and never interested the Crown therein but made the Archbishop and the Convocation their immediate Delegates so long as they saw good Afterwards when they had done their work viz. The determining the Appeal and Divorce of Queen Katherine and some other matters the same hand that gave that power took it away and gave it not to the King or Crown but to Delegates from the Parliament from time to time to be nominated by the King and may as well alter the same and settle the power elsewhere when they please And therefore after the Appeal of the Dowager thus determined and the Sentence definitive thus setled upon Delegates the Parliament nevertheless determined the other Causes of the Marriages of the Lady Anne Bullen and the Lady Anne of Cleve the jurisdiction of the Crown never intermedling therein So as upon the whole it must be acknowledged that however the King was Supreme Head of causes Ecclesiastical yet had he not the definitive sentence in Appeal nor absolute Supremacy but that the same was left to the Parliament Sixthly and lastly what attempts the Parliament had met with partly from the designs of some great men that sought their own ends and partly from the endeavours of these Kings that sought their own height and greatness above their peoples good hath been already related and the utmost issue had been truly stated viz. That the gains have come to the Kings persons and not to their Crown and that therein they have put their Seal to the Law and made their submission to the Parliament as touching both their persons and power Add hereunto that however Henry the Eighth aimed much at himself in his ends in two other main interests that most nighly concerned him yet the chief gain came to the Parliament The
formerly hath been already manifested Thirdly As touching Matrimonial Causes their former power of making Laws concerning them and Testamentary Causes is now absolutely taken away onely concerning Matrimonial matters they had so much of the Judicatory power concerning the same put upon them as might well serve the Kings own turn and that was for determining the matter between himself and the Lady Katherine Dowager depending before the Archbishop Cranmer For the King supposed the Pope a Party and therefore meaned not that he should be his Judge And thus though the Clergie had acknowledged the King to be their Supream Head yet in this he was content to acknowledge their Supremacy above him to judge between himself and his Queen and in other matters concerning himself So as upon the whole matter the Convocation were gainers in some things in other things they were onely losers of that which was none of their own CHAP. XXX Of the power of the Clergie in their Ordinary Jurisdiction THose Spirits are truly degenerate that being sensible of miserie cannot stir up desires of Change although the way thereto lies open before them And this shews the nature of the Romish Yoke that it lay upon the Spirits of men did intoxicate and make them drunk with their condition Otherwise the Usurpations Oppressions Extortions and Incroachments of the Popedom upon the Bishops Sphere and the people under their charge could never have provoked such complainings amongst all sorts in several ages from time to time And now that Henry the Eighth undertakes to set them free so as they would acknowledge his Supremacy they all are struck dumb till a Praemuniri taught them to speak and so were scared into a better condition than they would have had and into a more absolute Estate of Jurisdiction than they received from their Predecessors The Pope had now usurped a power supra-ordinary over all Appeals gained the definitive Sentence to the Roman See and had holden this power by the space of four hundred years and the King finding the root of all the mischief to his Crown from abroad springing from that Principle meaned not to dispute the point with the Casuists but by one Statute took away all Appeals to Rome and determined Appeals from the Bishops Court in the Archbishops Court and the Appeals from the Archbishop's Commissarie in the Court of Audience So as though in the Kings own Case the Convocation had the last blow yet in matters concerning the Subjects the Archbishop was either more worthie or more willing with that trust For though the Convocation might have determined all as well as the Pope yet for dispatch sake of a multitude of Appeals now depending at Rome and to prevent long attendance on the Convocation that now had much to do in matters of more publick nature the utmost Appeal in such cases is made Provincial This whether priviledge or prejudice the Ecclesiastical Causes gained above the Civil whose definitive Sentences was reserved to the Parliament And thus is the Archbishop made Heir to the Pope in the greatest priviledge of a Pope to be chief Judge on Earth in matters Ecclesiastical within his own Province A trick that in my opinion much darkned the Glory of the Kings Title of Supream Head which the Church-men had formerly offered up to the honour of the Crown of this Realm For be it so that the Title is in the Crown by Remitter yet cannot the same carry along with it any more than a lawful power and whether all the Pope's former power allowed him by the Canon or gained by Usurpation and Custom shall be said a lawful power or whether the power of Review by Appeal shall be derived to the Crown under the general Notion of Supreamacy upon the Clergies submission is to me a doubt albeit I must give honour to the Judgement in Print in regard that after the submission of the Clergie the matter concerning the Divorce of the Lady Katherine Dowager came before the Pope by Appeal and there depended the King himself also waiting upon that See for Justice and a definitive Sentence in that matter and thereby acknowledged the Pope's power De facto Notwithstanding the Clergies foregoing submission and being occasioned by the delay at Rome he procured this Statute concerning Appeals to be made whereby at one breath he took the Appeals to Rome away and setled them as formerly hath been mentioned all which was done two years before the Title of Supremacy was annexed or declared for to be to the Crown by Act of Parliament And therefore as to me it appears the power of Supream Cognizance of Appeals was not in actual possession of the Crown by the Clergies submission so was it actually vested in the Archbishop before the Title of Supremacy was confirmed by Act of Parliament and so it never was in the Crown actually possessed much less had the Crown the same by Remitter For the King's turn once served by the Convocation and the matter of the Divorce of Queen Katherine setled the King perceiving the slow progress of the Convocation the Members of the same not being yet sufficiently tuned to the present Affairs And moderate Archbishop Cranmer likewise foreseeing that the Odium of these Definitive Sentences would be too great for him to bear another Appeal is provided more for the honour of the Crown to be from the Archbishop to Delegates to be appointed by the King his Heirs and Successors so as though their Nomination be the Kings yet their power is deduced immediately from the Parliament which took the same from the Archbishop and conferred it upon them A second advantage not inferiour hereto which the Archbishop gained out of the ruines of the Popedom was the power of Licenses and Dispensations or Faculties In the Pope it was a transcendent power without any rule but what was tuned to him by the Bird in his own breast and was the ground of much license or rather licentiousness in the world But in the Archbishop they seem to be regulated To be First in Causes not repugnant to the Law of God. Secondly such as are necessary for the Honour and Security of the King. Thirdly such as were formerly wont to be remedied at the See of Rome yet in truth left as much scope for the Conscience of the Archbishop to walk in as the Pope had in former times A large Teather and greater priviledge than ever the Crown had by which although the King himself be like Saul higher by the Head than all the people yet in many things Samuel is higher than he The moving cause hereof is not difficult to find out the King had but lately married the Lady Anne Bullen a thing that many startled at and the King himself not extreamly resolved in he would therefore have his way like that of the Zodiack broad enough for Planetary motion of any one that could not contain himself within the Ecliptick line of the Law and so
way is different from the common Road both in it's original and in the course of proceedings nor could it otherwise be considering the condition of the Nations and the people of the same interested in common Traffique The people thus interested as much differed from the other sort of Dry men if they may be so called as Sea from Land and are in nature but as March-men of several Nations that must concentre in some third way for the maintenance of Commerce for peace-sake and to the end that no Nation may be under any other Law than its own The condition of the Nations in the times when civilized Government began to settle amongst them was to be under the Roman Emperours who having setled one Law in the general grounds throughout all Nations made the Sea likewise to serve under one rule which should float up and down with it that men might know upon what terms they held their own wheresoever they went and upon what terms to part with it for their best advantage In its original therefore this Law may be called Imperial and likewise in the Process because it was directed in one way of Trial and by one Law which had its first birth from the Imperial power and probably it had not been for the common benefit of Europe to have been otherwise at other time or by other directories formed Nevertheless this became no Gem of Prerogative to the English Crown for if England did comply with forrein Natives for its own benefit it being an Island full of the Sea and in the common Road from the most parts of Europe that border upon the Sea and of delight in Merchandise it is but suitable to its self and it did so comply as it saved the main Stake by voluntary entertaining those Laws without being imposed upon by Imperial power For the Saxons came into this Kingdom a free people and so for ought yet appeareth to me continueth to this day I say that in those first times they did take into the consideration of Parliament the regulating of the fluctuating motions of Sea-laws nor were they then or after properly imposed by the King's Edict For though it were granted that Richard the First reduced the Sea-Laws in the Isle of Oleron yet that the same should be done without advice of Parliament in his return from the Holy land is to me a Riddle considering what Histories do hold forth concerning his return through Germany nor can that be good evidence to entitle Kings of England to a power to make and alter Laws according to their private pleasure and interest Nor doth that Record mentioned in the Institutes warrant any such matter but rather on the contrary groundeth the complaint upon Laws Statutes Franchises and Customs established and that this Establishment was by the King and the Council This Law was of a double nature according to the Law of the Land one part concerning the pleas of the Crown and the other between party and party for properly the King's Authority in the Admiralty is but an Authority of Judicature according to Laws established which both for process and sentence are different from the Common-Law as much as the two Elements do differ yet not different in the power that made them I shall leave the particulars to be enquired into by them that shall mind it elsewhere and only touch so much as shall reflect upon the main Government This power was executed by Deputies diversly according as the times and opportunities were for War or Peace and either transitu or portu What was done in time of War or whilst the Ship is out of the English Seas comes not to our purpose and therefore I shall not meddle with that further than this that in the first times Kings were wont to divide the work of Judicature and of War into several hands The power of War and Peace they committed unto men of approved Courage and Skill in that service and therefore generally not to the men of highest rank who had neither Mind nor Skill for a work of such labour dyet and danger This power passed under divers names sometimes by grant of the custody of the Sea-coasts sometimes of the parts and Sea coasts sometimes by being made Captain of the Sea-men and Mariners and sometimes Admiral of the Ships It was a great power and had been much greater but that it suffered a double diminution the one in the time for three or four years commonly made an end of the command of one man and at the best it was quam diu Regi placuerit the other diminution was in circuit of the power for all the Maritine Coasts were not ordinarily under the power of one man but of many each having his proper precinct upon the South or North East or Western shores and under the Title of Admiral in the times of Edward the First and forwards who brought that Title from the Holy Land. Nevertheless about the end of the times whereof we now Treat the custody of the whole Sea began to settle in one hand under the Title of Admiral of the English Seas and the place was conferred upon men of the greatest rank and so continued ever afterward The power of Jurisdiction or Judicature all this while remained distinct and it seems was setled in part in the power of the Sheriff and Justices For by the Law the Sheriff and Justices had cognizance of matters between the high water and the low water mark and what was done Super altum mare was within the directory of the Admiral these were but few things and of small consideration the principal of them being concerning War or Peace and those only within the English Seas But after Edward the Third had beaten both the French and Spaniards at Sea the people grew much more towards the Sea and became so famous that the greatest Lords thought the Regiment of Sea-affairs worthy of the best of their Rank and were pleased with the Title of Admiral whilst they left the work to others and so the Admiral became a person of more honour and less work than he had been formerly The greatness of the honour of this place thus growing soon also began to contract greatness of power beyond what it had formerly and this was principally in matter of Jurisdiction For not contented with the power of a chief Justice of War and Peace within the Seas which was his proper dominion the Lord Admiral gained the same within the low water mark and in the main streams below the next Bridge to the Sea and in all places where Ridels were set and yet these places were within the body of the County Nor did he endeavour less to gain in matters of distributive Justice for although he had a legal Jurisdiction in things done upon the Sea so far as to defend order determine and cause restitution to be made in cases of damage done unjustly yet was it no less difficult to keep