day under pain of forfeiture of Goods exposed to sale excepting Victual and excepting the four Sundays in Harvest And thus though places had their Consecration allowed by the Parliament and immunity from trading in Fairs and Markets by the space of a hundred and sixty years before this time yet that time which God by his own Law had reserved to his own self never came under regard to be allowed till now and yet not by the motion of the Clergie nor by their furtherance For by their thrusting in the Holy days they made them equal with the Lords day and in Harvest-time superiour by preserving them in force whenas the Lords days were set aside So God had somewhat of these men but the Pope more Secondly As the Church-men lost in the former so the Prelacy in this that follows The Prelates had long since obtained the Trial of Bastardy and therein could strain themselves so far as to put the case of Inheritance into danger where the point otherwise was clear enough And this grew to that height that it endangered the disinheriting of the Heirs of the â—arl of Kent It is therefore now provided that before the Ordinary in such Cases proceeded to Trial Proclamations shall be made in Chancery to summon all pretenders of Interests or Titles to come before the Ordinary to make their Allegations and all Trials of Bastardy otherwise made shall be void so as whatever the Canon did the Parliament would not trust to the Ordinaries Summons nor allow of their power in any other manner than the Parliament thought meet One thing more remaineth wherein the true Church of Christ seemed to lose and yet gained and the Clergie joyning with the King seemed to gain and yet lost this was the point of Worship which had long stumbled the minds of the people and was now grown to that strength that nothing but an Act of Parliament can keep it under This opinion concerning Worship was at the first so young that it was not yet baptized with any proper name but called Opinion contrary to the Church-determinations or Catholick Faith. And against this the Clergie now stormed more than ever formerly because it was grown to such a height as if it meaned to over-top theirs To this end they procured an Act to pass That all Preachers Teachers Writers School-masters Favourers or notoriously defamed persons for the maintenance of such Opinions shall be upon conviction before the Ordinary according to the Canons imprisoned in the Diocesans Prison and Fined according to the Diocesans discretion If upon Conviction he shall not abjure or shall relapse he shall be delivered unto the Secular power and be burned And that Preachers without License of the Diocesan should be restrained Concerning which Law I shall first shew what change in the Laws of this Kingdom was endeavoured and what was really effected First It is an undeniable ground That no Freeman can be put to answer before any Judge but upon presentment or other matter of Record foregoing and by due Process of Law. And yet it had been ruled that strong presumption and complaint of credit after it is entred is sufficient Record to ground proceedings in this Case to attach the party to Answer But by this Law a Trial is introduced that neither resleth upon any peremptory Accusation or proof of Witness but meerly upon Inquisition upon the Oath and Conscience of the party suspected which in the latter days hath been called the Trial upon the Oath Ex Officio For such was the Trial allowed by the Canon in these times as appears in the Constitutions of Otho and the Decrees of the Archbishop Boniface by whom it was endeavoured to be obtruded upon the Laity about the times of Henry the Third or Edward the First but even the Clergie then withstood it as Lindwood confesseth And Otho in his very Constitution doth hold this forth by that clause of his Non obstante obtenta consuetudine Seconly This Law doth endeavour to introduce a new Judge with a power to Fine and Imprison according to discretion and a Prison allowed to him as his own peculiar and yet the Writ De cautione admittenda still held its power to regulate that discretion as formerly it had done which by the way may render the power of this Law suspicious Thirdly The Clergie are not content to have the Estates and Liberties of the bodies of the people at their discretion but they must also have their Lives Although no Freeman's life could by the Fundamental Laws of this Kingdom come to question but by the Judgement of his Peers nor could the Clergie by their own Canons interesse sanguini viz. They cannot put any man to death but by this Law they may send any man to death by a Sentence as sure as death Tradatur potestati seculari And such a death not as the Civil Magistrate is wont to execute by a speedy parting of the Soul from the Body by loss of Blood stop of Breath or such like but the Clergie must have Bloud Flesh Bones and Life and all even the edge of non entity it self or they are not satisfied and thus the Writ De comburendo Hoeretico entred into the World. True it is that some sparks of this fire are found in former times and Bracton toucheth upon such a Law in case of a Clerk convict for Apostacy Primo degradetur post per manum Laicalem Comburatur which was indeed the Canon and that by his own Confession for it is grounded upon one Secundum quod accidit in the Synod at Oxford under Archbishop Becket But that Case concerneth a Clerk who by his profession hath put himself under the Law of the Canon and it was onely in case of Apostacy himself being turned Jew and this also done upon a sudden pang of zeal and power of an Archbishop that would know no Peer Nor do we find any second to this Precedent by the space of Two hundred years next ensuing neither doth the Decree of Archbishop Peckham who was not long after Becket treating about Apostacy in Lay-men mention any other punishment than that they are to be reclaimed Per censuras Ecclesiasticas Nor yet that of Archbishop Arundel amongst the Constitutions at Oxford not long before this Statute who treating about the crime of Heresie lays the penalty upon forfeiture of Goods with a Praesertim as if it were the grand punishment And Linwood in his Gloss upon that place setting down the Censures against Heresie Hodie sunt saith he damnandi ad mortem as if it were otherwise but as yesterday Fourthly the next endeavour is to bring the cognizance of all wholly to the Ecclesiastical Court without further Appeal for so the words concerning Conviction of Heresie are Whereupon evidence shall be given to the Diocesan of the same place or his Ordinary in that behalf These changes I say were endeavoured to be brought upon the Government of
A brief censure of the Saxon Prelatical Church-Government 27 XVI Of the Saxons Commonwealth and the Government thereof and first of the King. 29 XVII Of the Saxon Nobility 33 XVIII Of the Freemen amongst the Saxons 34 XIX Of the Villains amongst the Saxons 35 XX. Of the grand Council amongst the Saxons called the Micklemote 36 XXI Of the Council of Lords 38 XXII Of the manner of the Saxon Government in the time of War. 39 XXIII Of the Government of the Saxon Kingdom in the times of peace and first of the division of the Kingdom into Shires and their Officers 40 XXIV Of the County-court and Sheriffs Torn 41 XXV Of the division of the County into Hundreds and the Officers and Court thereunto belonging 42 XXVI Of the division of the Hundreds into Decennaries 43 XXVII Of Franchises and first of the Church-franchise 44 XXVIII Of the second Franchise called the Marches 45 XXIX Of County Palatines ibid. XXX Of Franchises of the person 46 XXXI Of Mannors ibid. XXXII Of Courts incident and united unto Mannors 48 XXXIII Of Townships and their Markets 49 XXXIV Of the Forests 51 XXXV Concerning Judges in Courts of Justice 52 XXXVI Of the proceedings in Judicature by Indictment Appeal Presentment and Action 53 XXXVII Of the several manners of extraordinary trial by Torture Ordeal Compurgators and Battle 55 XXXVIII Of the ordinary manner of Trial amongst the Saxons by Inquest 56 XXXIX Of passing Judgement and Execution 59 XL. Of the penal Laws amongst the Saxons 60 XLI Of the Laws of property of Lands and Goods and the manner of their Conveyance 64 XLII Of the times of Law and vacancy 68 XLIII An Epilogue to the Saxons Government 69 XLIV OF the Norman entrance 70 XLV Of the Title of the Norman Kings to the English Crown that it was by Election 72 XLVI That the Government of the Normans proceeded upon the Saxon principles and first of Parliaments 75 XLVII Of the Franchise of the Church in the Norman times 77 XLVIII Of the several subservient Jurisdictions by Marches Counties Hundreds Burroughs Lordships and Decennaries 82 XLIX Of the Immunities of the Saxon Freemen under the Norman Government 84 L. Recollection of certain Norman Laws concerning the Crown in relation to those of the Saxons formerly mentioned 86 LI. Of the like Laws that concern common Interest of Goods 89 LII Of Laws that concern common Interest of Lands 90 LIII Of divers Laws made concerning the execution of Justice 94 LIV. Of the Militia during the Normans time 65 LV. That the entry of the Normans into this Government could not be by Conquest 97 LVI A brief Survey of the sense of Writers concerning the point of Conquest 99 LVII OF the Government during the Reigns of Stephen Henry the Second Richard the First and John and first of their Titles to the Crown and disposition in Government 103 LVIII Of the state of the Nobility of England from the Conquest and during the Reign of these several Kings 107 LIX Of the state of the Clergie and their power in this Kingdom from the Norman time 109 LX. Of the English Commonalty since the Norman time 117 LXI Of Judicature the Courts and their Judges 118 LXII Of the certain Laws of Judicature in the time of Henry the 2. 120 LXIII Of the Militia of this Kingdom during the Reign of these Kings 125 LXIV OF the Government of Henry the Third Edward the First and Edward the Second Kings of England And first a general view of the disposition of their Government 129 LXV Of the condition of the Nobility of England till the time of Edward the Third 137 LXVI Of the state of the English Clergie until the time of Edward the Third and herein concerning the Statutes of Circumspecte agatis Articuli Cleri and of General Councils and National Synods 140 LXVII Of the condition of the Freemen of England and the Grand Charter and several Statutes concerning the same during the Reign of these Kings 158 LXVIII Of Courts and their Proceedings 177 LXIX Of Coroners Sheriffs and Crown-Pleas 179 LXX Of the Militia during these Kings Reigns 184 LXXI Of the Peace 188. THE PREFACE THe policy of the English Government so far as is praise-worthy is all one with Divine Providence wrapped up in a Vail of Kings and Wise men and thus implicitely hath been delivered to the World by Historians who for the most part read Men and wear their Pens in decyphering their Persons and Conditions Some of whom having met with ingenious Writers survive themselves possibly more famous after death than before Others after a miserable life wasted are yet more miserable in being little better than Tables to set forth the Painters Workmanship and to let the World know that their Historians are more witty than they of whom they wrote were either wise or good And thus History that should be a witness of Truth and Time becomes little better than a Parable or rather than a Nonsence in a fair Character whose best commendation is that it is well written Doubtless Histories of Persons or Lives of Men have their excellency in Fruit for imitation and continuance of Fame as a reward of Vertue yet will not the coacervation of these together declare the nature of a Commonwealth better than the beauty of a Body dismembered is revived by thrusting together the Members which cannot be without deformity Nor will it be denied but many wise and good Kings and Queens of this Realm may justly challenge the honour of passing many excellent Laws albeit it is the proper work of the Representative Body to form them yet to no one nor all of them can we attribute the honour of that Wisdom and Goodness that constituted this blessed Frame of Government For seldom is it seen that one Prince buildeth upon the foundation of his Predecessor or pursueth his ends or aims because as several men they have several Judgements and Desires and are subject to a Royal kind of self-love that inciteth them either to exceed former Precedents or at least to differ from them that they may not seem to rule by Copy as insufficient of themselves which is a kind of disparagement to such as are above Add hereunto that it is not to be conceited that the wisest of our Ancestors saw the Idea of this Government nor was it any where in precedent but in him that determined the same from Eternity For as no Nation can shew more variety and inconstancy in the Government of Princes than this especially for three hundred years next insuing the Normans So reason cannot move imagination that these Wheels by divers if not contrary motions could ever conspire into this temperature of policy were there not some primum mobile that hath ever kept one constant motion in all My aim therefore shall be to lay aside the consideration of Man as much as may be and to extract a summary view of the cardinal passes of the Government of this Kingdom and
sworn that he would not sell Right or any remedial Writ to any one yet upon the day of c. he sold to B. a Writ of Attaint and would not grant the same under half a Mark. So as the difference between an Indictment and Presentment in those days was onely in the degree of the Crime for which the party Delinquent was accused and in the manner of conclusion of the Presentment which was without Averment The last way of Trials concerns such offences that exceed not the nature of Trespass done to a mans Person or his Goods and this was by way of Action and it was to obtain recompence for Damage sustained Now because the former were called Personal Trespasses the Process was by attachment of the Person who thereupon put in Bail or else his Person was secured by imprisonment till Trial and satisfaction made But in the later that concerned the reality Three Summons went forth in the Hundred-Court and if default were made complaint thereof ensued in the County-Court and thence issued forth a Distringas and if the Defendant still persisted in declining his appearance the Distress was forfeited and a Summons issued upon the Land. If then the Defendant would not appear or upon appearance would not give Pledges to abide Judgement his whole Land was seized for the benefit of the King of the Lord of the Hundred and of the Complainant because he had offended against all three But if the party appeared in former times he answered forthwith and Judgement passed without delay as hath been said unless in urgent cases where the matter was raw and then it was adjourned and Pledges given by the Defendant to the full value after the custom of the Athenians and if the Defendant made Default at the day his Pledges were forfeited But in after-times for better and more advised proceeding the Defendant was admitted to his Essoines yet with a Proviso that no Essoine should be allowed for above Fifteen days and this was the direction of King Alfred In the answer of the Defendant he either traversed the matter in fact or confessed and justified or confessed and submitted The first put the matter to the judgement of the Freemen the second to the judgement of the Judge the third to the discretion of the Complainant whereby the Defendant generally found mercy and in case of Trespass rendred less damage I find no footsteps in those times of Dilatorypleas or Demurrer or other delays unless in case of infancy for the Saxons knew no other age of ability to do or suffer but the age above One and twenty years and in Alfred's time a Judge suffered death for passing Sentence of death upon one under that age Albeit the Canonists had in those days brought into custom other ages of ability in matters concerning Marriage although it may well be thought that it requireth no less maturity to manage the affairs of a married life than to discern the nature and difference of manners especially in case of crimes which are contrary to the very light of nature CHAP. XXXVII Of the several manners of extraordinary trial by Torture Ordeale Compurgators and Battle EVidence of the matter in fact upon trial of Causes in the Saxon Judicatory sometimes consisted in the pregnant testimony of the Fact it self and sometimes in the testimony of some Circumstances The first was an unquestionable ground of conviction the second was too weak to command the Verdict although sometimes it perswaded it and therefore those incompassionate times found out a trick of extorted confession by torture of the party following the principles of passion therein rather than sober judgement for circumstances are sufficient to irritate the hearts of those that are passionate and where Jealousie is once entred there 's no place for sparing be the matter never so untrue Yet I do not find any Law amongst the Saxons to patronize this fashion of conviction albeit it seemeth it was practised for Alfred the King punished one of his Judges with death for passing Sentence upon an extorted confession by Torture before the Corner And possibly it might be gained from the Lacedemonians although little to the praise of their Greekish wisdom in that particular Seeing that in all reason it must be supposed that Fear and Grief will enforce Flattery upon the Tormentor as well as Self-love draw forth Flattery to the Benefactor A second sort of Evidence was that of Ordeale being also grounded upon a pre-conceit or suspicion the manner hereof was divers The thing seemeth to be the birth of the Brain of some Church-man who had read of the cursed Water The first mention that I find thereof was at the Council of Mentz and afterwards in the Council of Triers but not a footstep thereof in this Kingdom till by Aethelstan it was advanced into the degree of a Law after which time it continued in use well nigh Three hundred years A strange monument of God's idulgency to an ignorant Age thus turning extraordinary to ordinary for the clearing of innocency and which is no less wonderful allowing in those times unto men under nature such a power over themselves as to adventure against nature Doubtless that man or woman was of a daring spirit that first tried the trick if he had not a miraculous faith in that promise Cum ambulaveris per ignem c. and it shewed metal in them that followed the example But the next age grew dull and men being weary of such bane-touches the Clergy that cried it up their successours cried it down and so devoured their own birth without any difficulty other than a bare injunction of a King that had power to command onely such as would obey But where fame was yet more slight and springing rather from want of charity and misapprehension than promising circumstances men were wont to be contented with a voier Dire or the Oath of the party suspected and the concurrent testimony of other men The first attesting his own innocency the other contesting their Consciences of the truth of the former testimony and therefore were and still are called Compurgators Their number was more or less and of greater or less value according as the offence or the party suspected was of greater or less concernment This manner of trial was of ancient use and both it and that Ordeale under the directory of the Clergie yet this was the ancienter by Three hundred years and first brought into this Nation by the Council at Berghamsted under Bertwald Archibishop of Canterbury And it was performed sometimes more solemnly by solemn receiving of the Eucharist especially if the person suspected was of the sacred Function One manner of trial yet remains which was used both in trial of matters of Crime and Title and it is the trial by Battle which was in criminal matters with sharp Weapons but in titulary matters with blunt
Weapons No Defendant could refuse Battle offered but such as were too excellent as the King or too sacred as the Clergie or too weak as Women Maimed persons and Children or too inscient as Ideots and Lunaticks or too mean as Villains And as these were not necessitated to answer in Battle so was no Freeman compelled to answer them by Battle This way was an old way as may appear by the conclusion of Appeals and seemeth more satisfactory than that of Ordeale because this rested upon the Consciences both of Appellant and Defendant whereas Ordeale rested onely upon the single Conscience of the Defendant which oftentimes was rather hardy than innocent And the continuance of this trial in title even at this day shews that men can away with this and that there is not evil sufficient in it to eradicate this weed although it be kept under ground and experience shews that Right and Victory always do not concur CHAP. XXXVIII Of the ordinary manner of Trial amongst the Saxons by Inquest THe last and most ordinary way of trial was by Witnesses upon traverse of the matter in Fact before the Jurors and their votes thereupon this made the Verdict and it determined the matter in fact In former time questionless it was a confused manner of trial by Votes of the whole multitude which made the Verdict hard to be discerned But time taught them better advice to bring the Voters to a certain number according to the Grecian way who determined controversies by the suffrages of Four and thirty or the Major part of them But how the number came to be reduced to Twelve I cannot conjecture unless in imitation of that rule of Compurgators that ordinarily exceeded not that number The first Law that defined this number was that of Aetheldred about three hundred years before the Conquest In singulis Centuriis c. In English thus In every Century or Hundred let there be a Court and let Twelve ancient Freemen together with the Lord of the Hundred be sworn that they will not condemn the Innocent nor acquit the Guilty And this was so strictly eyed that Alfred put one of his Judges to death for passing Sentence upon a Verdict corruptly obtained upon the votes of the Jurors whereof Three of the Twelve were in the Negative And the same King put another of his Judges to death for passing sentence of death upon an Ignoramus returned by the Jury And a third for condemning a man upon an Inquest taken ex officio whenas the Delinquent had not put himself upon their trial But the Saxons were more careful of the credit and life of man for no mans life or credit rested altogether upon the cast of Twelve opinions but first Twelve men enquired of the fame and ground thereof which if liked rendred the party under the spot of delinquency and meet to be looked upon as under the suspition of the Law who formerly was but under the suspition of some particular man. And then was a second enquiry of the fact if the party traversed the vote of Fame In both which trials the Verdict grounded it self upon those allegata and probata which were before them The first of these enquiries was before the Coroner who even in these old days had the view of Bloodshed The second was had before the Judge of life and death neither of which could legally indamage the party without the other unless the Judge meaned to answer it with the peril of his own person and Estate as it befel in Alfred's time when a Judge suffered death for passing Sentence upon the Coroners onely Record unto which a Replication is allowed as the Book saith And another Judge had the same measure for condemning one without Appeal or Indictment foregoing Where by the way I might note another difference between Appeals and Indictments in this that Appeals were and are the more speedy Trials than Indictments inasmuch as the former were but one act the latter two And yet time and experience refined this way of trial into a more excellent condition For the bloody times of the Saxons first age passing over and peace arising by degrees they together with the Britons began to intercommon and about the Marches became a mixt people under a mixture of Government and Laws as hath been already noted Amongst which one concerned their way of trial of matters in fact by a Jury mixt both of Britons and Saxons which was setled by a Law made by Aetheldred Viri sint c. In English thus Let there be Twelve men of understanding in the Law six of them English and six Welch and let them deal Justice both to English and Welch The equity of this Law in future ages spread it self into all Trials of Forreigners in every place throughout this Island Unto such as stumble at this conceit because they are said to be aetate superiores and jure consulti I shall onely note thus much That it is not to be doubted but the work of Jurors required chief men both for experience and knowledge in the customs of those times to enable them to judge of the matter in fact and upon whose judgement the Life and Death of the party rested principally And as probable it is that those Jurors as they were then chief men so they sate in the most eminent place of the Assembly or Court and were co assessors with the Bishop and Sheriff who did serve but onely to advise the rest and they or one of them to publish the Sentence which the Law predetermined And this chief place the Jurors might have possessed at this day as they do in Sweden had the chief men holden the service still worthy of their attendance But great men grew too great in their own esteem for the service of their Country betaking themselves to serve themselves and matters of highest employment were left to those of the meaner condition who being in their own persons of less admiration were thought unmeet to sit in such eminent places and so from the Bench descended to the Floor as at this day This disidiousness of the greater sort made one step further to the full perfection of that manner of Trial both of the Persons and Estates of the English which hath been the envy of other Nations and is called the trial per Pares or by Peers For the pride of the Danes now growing into one people with the Saxons not enduring such fellowship with the mean Saxon-freemen in this publick service and the wise Saxon King espying the danger in betrusting the Lives and Estates of the poorest sort unto the dictate of these superbient humours and on the contrary in prostituting the Nobler blood upon the vote of the inferiour rank of men provided a third way and by agreement between him and Gunthurne the Dane setled the Law of Peers Si minister regius c. If a Lord or a Baron be
accused of Homicide he shall be acquitted by Twelve Lords but if of inferiour rank he shall be acquitted by Eleven of his Equals and one Lord. Thus Gods providence disposed of the pride of men to be an instrument of its own restraint For the great men ere they were aware hereby lost one of the fairest Flowers of their Garland viz. the Judicature or rather the mastership of the Life or Death of the meaner sort and thereby a fair opportunity of containing them for ever under their awe And no less remarkable was the benefit that redounded to this Nation hereby for had the great men holden this power as once they had it it might soon have endangered the liberty of the Freemen and thereby been destructive to the Fundamental Constitution of the Government of this Realm which consisteth in the just and equal participation of these Priviledges wherein all are equally concerned This was the trial wherein the people of this Nation were made happy above all other people and whereby the Freemen as they had the Legislative power so likewise had the Juridical and thereby next under God an absolute dominion over themselves and their Estates For though this course of trial was first applied to matters of Crime yet it soon also seized upon the Common-pleas which for the most part was the work of main import in the Hundred Court and suitable hereunto are the prescriptions which are extant in the Law-books of Cognizance of Pleas and Writs of Assize c. from the times of the Saxons as in that case of the Abbot of Bury amongst others doth appear CHAP. XXXIX Of passing of Judgement and Execution AFter Verdict Judgement passed according to the letter of the Law or known Custom in criminal matters according to the greatness of the offence either for death or loss of Member But if the circumstances favoured the Delinquent he was admitted to redemption of Life or Member by Fine also setled by letter of the Law and not left to the Judges discretion If the Crime reached onely to shameful penance such as Pillory or Whipping the last whereof was inflicted onely upon Bondmen then might that Penance be reduced to a Ransom according to the grain of the offence assessed in the presence of the Judge by the Freemen and entred upon the Roll and the Estreat of each Ransom severally and apart sent to the Sheriff This Ransom was paid usually unto the King and Lord and the party indamaged or his friends if the case so required according to the old German rule Pars mulctae Regi vel civitati pars ipsi qui vindicatur vel propinquis ejus This course opened indeed a way for Mercy but through corruption a Floud-gate to Wickedness in the conclusion Of Imprisonment there was little use in the eldest times afterwards it was more used not onely to secure the person to come to trial of Law for miscarriages past but sometimes to secure men against committing of future mischief especially if it more concerned the publick I find but little or no use thereof barely as a punishment nor would their Ancestors so punish their Bondmen Vinculis coercere rarum est In case of Debt or Damage the recovery thereof was in nature of elegit for the party wronged either had the offenders goods to him delivered or the value in money upon sale of the goods made by the Sheriff and if that satisfied not then the moity of the Lands was extended and so by moities so far as was possible salvo contenemento and when all was gone the Defendants Arms which were accounted as the Nether-milstone or stock of maintenance were last of all seized and then the party was accounted undone and cast upon the charity of his friends for his sustenance but the person of the man was never imprisoned as a pledge for the debt no not in the Kings case Alfred imprisoned one of his Judges for imprisoning a man in that case One punishment of death they had in cases of crime and that was by hanging or strangling and where the crime was not so great sometimes ensued loss of member or mutilation and in many such cases Excommunication pronounced indeed by the Clergy but determined by the Law which in the first conception was framed in the womb of the Legislative power in Parliament as may appear in many Laws there made nor was there in those times any question made of the cognizance thereof so long as the Clergy and Laity had charity enough to joyn in all publick Councils CHAP. XL. Of the Penal Laws amongst the Saxons PAssing the Courts and manner of proceedings till Sentence we are now come to the particular Laws that directed the Sentence and first of those that concerned criminal offences During the Saxons time the Commonwealth was in its minority the Government tender the Laws green and subject to bend according to the blast of time and occasion and according to the different dispositions of Governours Ages and People For though the Saxons were in name our first matter yet not they onely but they having once made the breach open and entred this Island it became a common receptacle of those Eastern people the Angles Danes Almains and Goths as their several Laws left with us in power do not obscurely inform us and amongst all the rest the Goths were not the least concerned herein for the Saxon King determining what people shall be holden Denizons in this Kingdom saith That the Goths ought to be received and protected in this Kingdom as sworn Brethren Kinsmen and proper Citizens of this Commonwealth Nor can any Nation upon earth shew so much of the ancient Gothique Law as this Island hath Nevertheless in this mixture of people of several Nations there being a suitable mixture of Laws as the power of any one of these people 's changed so likewise did their Laws change in power and long it was ere a right temper of one uniform Law could be setled yet in the interim these short remembrances left unconsumed by time I have subjoyned that it may appear their motions were excellent though somewhat inconstant in their practice Those times were dark and yet so far as any light appeared the people were to be honoured for their resolution in the defence thereof For there was few of the Commandments of the two Tables which they did not assert by Laws by them made the third and tenth excepted which latter commands the inward man onely and whereof God hath the sole cognizance True it is that the first Commandment containeth much of the same nature yet somewhat is visible and that they bound For whereas in those times the Devil had such power as he did prevail with some and those it may be not a few to renounce God and deliver themselves wholly to his own will they punished this crime with banishment as judging him unworthy their society that would communicate
with Devils Yet if the Delinquent had done any mischief whereby death ensued the parties punishment was death yet might all be discharged by Ransome and good security for good behaviour for time to come For their worship of God they were no less zealous in maintenance of the manner as their Forefathers liked not the use of Images or Pictures for adoration neither did they and though the Clergy in other matters led them much yet in this they were alone for a long time for though the Roman Church had the use of Images above Three hundred years before Austin's coming yet could not that custom fasten upon the Saxons for the space of above One hundred years after Austin's coming notwithstanding the endeavours of Charlemain and Pope Constantine by his bastard-decree begotten upon the dream of the Bishop of Worcester that saw the Virgin Mary's picture brought him in his sleep by her self and with a command from her That it should be set up in the Church and worshipped I say it could not fasten any constant practice of Idol-worship nor ever wrest a Law from the Wittagenmote to countenance the same but rather on the contrary they still preserved the memorial of the second Commandment in the Decalogue even then when as the Romanists had expunged the same out of the number and they enforced the same by a Law of their own making so far as their Clergie or Reverence they bear to Rome would allow It hath been formerly observed that the Saxons took no note of the vice of prophane swearing and cursing which crime if it were in use as it cannot be otherwise conceited but it was as the times then were must lie upon the Clergie-mens account for their neglect of teaching the point or upon the general ignorance of those times which understood not the Commandment nor the Scripture For we find no Canon against it nor scarce any Doctrine concerning it but onely in case of false swearing till Anselm's time True it is that Chrysostom seemeth zealous against all swearing but that was his personal goodness which for ought appeareth died with him And Anselm contending against swearing by the Creatures and idle swearing renders his grounds in such manner as it may be well conceived that he understood not the main I am the rather induced to conceive charitably of those times in regard of their exceeding zeal for the honour of the Lords day which sheweth that so far as their knowledge would maintain them they had zeal to make it into action They began this day doubtless as other days according to the custom of their Forefathers in Germany Nox ducere diem videtur And because they would not allow their secular affairs to trench too nigh that days devotion they made the Lords day to begin on Saturday at three of the clock in the afternoon and to continue till Munday-morning No pastime no not their beloved sport of Hunting was allowed during all that while nor no works were to be done but such as concerned the Worship of God and those Laws they bound with penalty of Fine if the Delinquent were a Free-man if he were a bond-servant he was to be whipped Nor were these the Laws of one King or Age onely but of the whole current of the Saxon Government and may although dark times they were yet put us in these days of light to the blush to enter into comparison with them for their Devotion In their Conversation with men the Saxons seemed yet more strict and being a people of a publick spirit they preferred the good of their Country above all accounting Treachery against it or neglect thereof in time of danger to be a Crime of the greatest concernment and to be punished in the highest degree Proditores transfugas arboribus suspendunt Other Treason than this no not against Kings did they then acknowledge any and therefore the form of the Indictment for contriving the death of their King concluded onely Felonicè as may appear in that form of an Indictment for an offence of that nature intended and plotted against Edmond the Saxon King Whenas for the plotting against Alliance though of common and inferiour nature the Indictment concluded Felonicè Proditoriè And wereas the penalty in case of Treachery against the Country was death and forfeiture of the whole Estate both real and personal In Treachery against the King it was onely loss of life and of the personal Estate And therefore it may seem that Majesty had not yet arrived at its full growth or else that the greatest measure thereof rested in the body still If in any thing the Saxons were indulgent it was in matters of Blood for they were a warlike people and looked upon it as under the regiment of valour and therefore it was punished only with fine according to the old rule Luitur homicidium certo armentorum pecorum numero So as even in Germany they had learned the trick to set a price upon that crime and this they afterward called Manbotta wera wirgida wita and lashlight and which was worse they countenanced that which in after-ages was called deadly feud and so under colour of punishing Murder with revenge they added blood to blood But as times grew more tame and inclining to civility or Religion the cry of Blood was more hideous and this urged on the Law of Appeals and so private revenge became under the power of the Law which punished death with death savouring of such a King as Alfred was who first taught the Scriptures to speak in the dialect of our own Laws like the Rubrick amongst the Canons bringing therewith both strength and beauty yet they had degrees of blood-shed and made a difference in the punishment for some sprung from sudden passion but other was forethought and purposed which last they called Abere Murther or Murther by foreplot or treachery and this was made nullo pretio emendabile and yet towards the times of the Danes devotion grew of so high a dye that a Sanctuary could represent any bloodshed more allowable if not acceptable under the golden colour of recompence made to the King the Lord of the party slain and the parties friends for the loss of a Subject a Tenant and a Friend according to that of their forefathers recepitque satisfactionem universa domus It would be too tedious to recite all the particular Laws with their changes and therefore they shall be lest to the view in the several Laws of Alfred Edmond Canutus and Edward the Saxon Kings Yet one custom first begun by the Danes I cannot omit That if a man were found slain whose parents or friends were unknown by common intendment he was presumed to be a Dane and then if the delinquent were not taken nor fled to Sactuary nor known where he is the whole
in force although many of them had their original from the Saxons One God must be worshipped and one faith of Christ maintained throughout the whole Kingdom This is found amongst the Laws of the King William published by Mr. Selden and was for substance in the Saxons time saving that we find it not annexed to the Crown summarily until now so as by this Law Heresie and Idolatry became Crown-pleas And the like may be collected concerning Blasphemy concerning which it is said as of the Servant's killing his Lord that it is impardonable nor could any man offend herein but it endangered his whole estate The trial of these crimes is not found particularly set forth It might possibly be in the meeting of the Clergy and possibly in the County-court of the Torne where the Bishop was present Jura divina edocere Peter-pence Ciricksceat and Tythes must be duly paid These are all Saxon Laws united to the cognizance of the Crown as formerly hath been shewed Only the first William especially provided that in case any man worth Thirty pence in Chattels did pay four pence for his part it should be sufficient both for himself and his Retinue whether Servants or Retainers and defaults in payment of these duties were finable to the King. Invasion upon the right of Sanctuary fined This I note not so much in relation to any such Law amongst the Saxons as to the future custom which now began to alter according to the increase or wane of the Moon I do not find this misdemeanour to be formerly so much taken to heart by the Crown nor possibly would it have been at this time but that the King must protect the Church if he mean to be protected by it and it was taken kindly by the Church-men till they found they were able enough to defend their own right by themselves Amongst all the rest of Church-rights this one especially is confirmed viz. That any Delinquent shall have liberty of Sanctuary to enjoy both Life and Member notwithstanding any Law to the contrary This priviledge was claimed by the Canons but it must be granted by the Temporal power or else it could not be had and though it be true that Kings formerly did by their Charters of foundation grant such privileges in particular yet could not such Grants create such immunities contrary unto or notwithstanding any publick Law of the Kingdom and therefore the Monasteries had their foundations confirmed by Parliament or general assembly of wise men if the first foundation was not laid thereon Working upon the Feast-days punished by Fine Before this time no days for Solemn Worship of God were acknowledged by the Law of the Kingdom but the Lord's days By this all days celebrated or instituted by the Church for that purpose are defended by the civil power and breach of the holy observation of these days made enquirable and punished amongst other pleas of the Crown Breach of the Peace Bloodshed and Manslaughter punished by Fine This was the ancient Law of the Saxons and was continued without alteration till about Alfred's time whose zeal against blood caused Murther to be punished with death but the Danes bringing in a moderation if it may rightly be so called are now seconded by their kindred the Normans who will not admit of punishment by death partly because being a warlike people bloodshed might seem to rank itself under the Regiment of valour and partly because they owed much to that Title for the possession of all that they had gotten in England And to prevent scandal entring upon the rear opinion stept in that a miserable life was more penal than death and therefore in crimes of the deepest die they came to fine and loss of Member and which course prevailed most either to stop or enlarge the course of that sin was left to the disposition of such as intended to make trial But in matters of less malignancy the purss rather smarted than the body wherein they proceeded so far as to punishment of death by violence yet was not the fine to be measured by the judgment of the mercy or rigour of any person but only of the Law itself which set down in certainty both the nature and quantity of the fine and left that memorial upon record of a good mind at least to an equitable and just Government In all these cases of breach of peace the King's Court becomes possessed of the right of cognizance and the peace is now called the King's peace not so much because that it is left only to his providential care to maintain as because the fines for most of those crimes pertained to the King for otherwise there is a sort of crimes that are contra pacem vicecomitis as will be more cleared hereafter I shall conclude this subject with these three Observations First that the Laws in those ancient times of the Normans were so general as they then made no difference between places or persons but whether the peace was broken upon holy or common ground or upon a Lay-man or one in orders the Lay-power seized upon all The second is the care they had for apprehending of the offenders in this kind If the party slain were a Norman or Frenchman the Lord of the Manslayer was charged to have him forthcoming within a certain time or pay the Kings Fine of 46 Marks so long as he had wherewith to satisfie and for what remained the whole Hundred was charged But if the party slain were of any other people the Hundred was immediately charged with the Manslayer and must bring him to answer within a certain time or pay the Kings fine The third and last is the care they had to prevent breach of peace for the future first in setling of night-watches by all Cities Burroughs Castles and Hundreds in such manner as the Sheriff or chief Officers by Common-council shall advise for the best safety of the Kingdom Secondly in forbidding entertainment of unknown persons above three days without surety for their good abearance or becoming their pledge for the publick safety nor to let any persons pass away without testimony under the Ministers and Neighbours hand of their good carriage A Man committing Adultery with a Married Woman shall forfeit to his Lord the price of his life This made the crime enquirable at the common-Law as an offence contra pacem Domini but afterward it was sinable to the King and enquirable amongst the pleas of the Crown by the Law of Henry the first Force upon a Woman to the intent to Ravish her is finable but if a Rape be committed it shall be punished with loss of Member The crime and offences against this Commandment were always punished in the Temporal Courts by Fine at the least and are still in the Normans time prosecuted in the same way notwithstanding the growing authority of
enough to make and maintain a right and that it by Law was a right belonging to some persons before others and that this had been a custom before the former unjust customs crept into the Government of the Conquerour and principally of his Son Rufus And though it be questionable whether it setled first upon the Normans or the English yet it is manifest that if one people had it the other people now coming into union with that people could not in reason except against that custom which the other people had taken up upon so honourable grounds as reason of State which as the times then were was evident and superlative especially the customs being under the regulating of Law and not of any Arbitrary power and can be no Presidents of Relief Marriage and Wardship that after-ages usurped Tenants in Knight-service shall hold their Lands c. acquitted of all Taxes that they may be more able to provide Arms and be more ready and fit for the Kings service and defence of the Kingdom This Law whether it be a renewing of a former custom or an introduction of a new Law it is clear it was upon an old ground That Tenants by Knight-service must be ready for the service of their Lord and defence of the Kingdom whereof afterwards But the Law is that these men shall hold their Lands of that Tenure acquitted of all Taxes though legally imposed upon the body of the Kingdom which must be conceived to be for the publick benefit viz. either for the preparation or maintenance of publick War for in such cases it hath been in all times held unreasonable that those whose persons are employed to serve in the Wars should hold Lands doubly charged to the same service viz. to the defraying of their own private expences in the War and maintenance of the publick charge of the same War besides CHAP. LIII Of divers Laws made concerning the execution of Justice ALthough in proceedings in Cases of vindicative Justice Delinquents might seem to be left rather to the fury than mercy of the Law yet so long as men are under the Law and not without the Law it hath been always held a part of Justice to extend what moderation might possibly stand with the honour of the Law and that otherwise an over-rigid and fierce prosecution of the guilty is no less tyranny than the prosecution of the not-guilty and although violence was the proper vice of these times yet this point of honour must be given to the Normans That their Sword had Eyes and moved not altogether by Rage but by Reason No Sentence shall pass but upon averment of the complaint by Accuser or Witnesses produced Fine and Pledges shall be according to the quantity of the offence By these two Laws of Henry the first the Subjects were delivered from three great oppressions First in making them offenders without Complaint or Witness Secondly in imposing immoderate Fines Lastly in urging extraordinary Bail. Forfeiture of Felons Lands is reduced to a year and a day The Normans had reduced the Saxon law in this case unto their own Last which stretched their desire as far as the estate would bear but this being so prejudicial to the immediate Lords who were no offenders in this case and so contrary to the Saxon law it was both done and undone in a short space by the allowance of Henry the first Intent of Criminal offences manifested by Act punished by Fine or Mulct This by Alfred's Law was punished by Talioes Law but now by a Law of Henry the first reduced to Mulcts Mainperners are not to be punished as Principals unless they be parties or privies to the failing of the Principal This Law of Henry the first repealed the former Law of Canutus which must be acknowledged to be rigorous although not altogether without reason No person shall be imprisoned for committing of a mortal Crime unless first he be attained by Verdict of Twelve men By imprisonment is intended close imprisonment or imprisonment without Bail or Mainprize for otherwise it is apparent that as well by the Saxon as Norman Laws men were brought to Trial by restraint Appeals of Murder restrained within the fourth degree Before this Law Appeals were brought by any of the bloud or kin of the party slain but now by Henry the first restrained The ground seems to be for that affection that runs with the bloud grows so cold beyond the fourth degree that the death of the party is of so small account as it can scarcely be reputed a loss of such consequence to the party as to expose the life or price of the life of the Manslayer unto the claim of such an one And thus the Saxon law that gave the satisfaction in such case to the whole kinred became limited to the fourth degree as I conceive from the Ecclesiastical constitution concerning marriage Two things more concerning juridical proceedings may be noted the one concerning speedy course of Justice wherein they may seem to justifie the Saxon way but could never attain to their pace in regard they yielded so much time to Summons Essoyns c. The other concerns election of Judges by the parties for this we find in the Laws of Henry the first CHAP. LIV. Of the Militia during the Normans time THe power of Militia is either the Legislative or Executory power the Legislative power without contradiction rested in the grand Council of the Kingdom to whom it belonged to establish Laws for the government of the Kingdom in time of peace And this will appear in the preparation for War the levying of War and managing thereof after it is levied For the preparation it consisteth in levying men and munition or of money In all which questionless will be a difference between raising of War by a King to revenge a personal injury done to the King 's own person and a War raised by the whole Kingdom or representative body thereof which is commonly done in defence of publick interest and seldom in any offensive way unless in recovery of a right possession either formerly lost or as yet not fully setled Now although it be true that seldom do injuries reflect upon the King's person alone but that the Kingdom will be concerned therein to endeavour a remedy yet because it may fall out otherwise and Kings have taken occasion to levy War of their own accord in such case they could neither compel the persons of their Subjects or their Estates to be contributary And of this nature I take the War levied by Harold against the Conquerour to be wherein the greatest part of the Kingdom was never engaged nor therefore did it feel the dint of the Conquerour's Sword at all and in this case the Militia must be allowed to such as bear the purse nor can it be concluded to be the Militia of the Kingdom nor any part thereof although the Kingdom may connive thereat But to
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
for the most part are but for enquiry All which saving the Justices itinerant in ancient use were instituted about these times and therewith ended both the work and common use of the ancient iters and yet all these later Courts joyntly considered have not the like comprehensive power that the iters had for they had the power of hearing and determining all causes both of the Crown and Common-pleas albeit in a different manner That is to say in the first times promiscuously united into one and the same person but soon after the Norman times and more clearly in the time of Henry the Second that power was divided into several persons some sitting upon the Common-pleas others upon the Crown-pleas The Judges of these journeying Courts were specially assigned by the King as in the case of the Gaol-delivery or setled by the Law upon the Judges of both Benches at Westminister as in case of Oyer and Terminer and of the Assizes or Nisi prius saving that in the last case they were associated with Knights in the Counties for the taking of Assizes Now concerning the Courts that were setled some were setled or annexed to the King 's personal residence as the Chancellor's Court for in these times it began to have a judiciary power of eminent stature and growing out of the decays of the great chief Justice of England Then also the Kings-Bench was annexed by the same Law unto the Kings Court or personal residence as it anciently ever had that honour although it seems the endeavours were to make it like the Common-pleas in that particular Another and last Court that was setled in this manner was the Marshals Court which in the original onely concerned the Kings houshold but afterwards compassed in a distance of the neighbouring places because the Kings attendants were many in those times whenas the Courts of Justice continually attended on his person and this precinct was called the Verge and all cases of debt and covenant where both parties were of the Houshold and of Trespasses vi armis where one of them was of the Houshold were handled in the Court of the Verge or the Marshals Court. And Inquests of death within the same shall be taken by the Coroner of the County with the Coroner of the Houshold Other Courts were rural and affixed also to some certain place either of the County or Town or other particular place That of the County suffered in these times great diminution even almost to destruction by a Law restraining the power thereof onely to Trespasses of 40 s. value or under for though formerly the Kings Justices incroached upon the County-Courts and contracted suits before themselves which by the ancient Law they ought not yet it was ever illegal and the County-Courts held their right till this Law was made which kept under those inferiour Courts and made them of less account than formerly Nevertheless the Kings Justicies or Writ to the Sheriffs oftentimes enableth the inferiour Court to have cognizance of cases of greater value Lastly a rule was set to the smaller Courts of Corporations Fairs and Markets viz. That no person should be sued in any of them which was not a debter or pledge there CHAP. LXIX Of Coroners Sheriffs and Crown-pleas COroners shall be chosen in the County from the wisest greatest and chief men of the Country Of these Officers formerly hath been spoken as touching their election qualification and work this Law brought in no change of any former Law but onely of a former Custom gained by these degenerating times which brought men into place that were far unfit who otherwise of poor and mean condition maintained themselves by bribery and extortion and being found guilty had not sufficient to give recompence This Law therefore revives the first Law and holds these men to their work of taking Inquests and Appeals by Indenture between themselves and the Sheriff and these were to be certified at the next coming of the Justices The Free-holders in every County if they will shall elect their own Sheriff unless the Sheriffwick be holden in Fee. This was indeed the ancient custom as the Officers of the Kingdom were elegible by the Common-council of the Kingdom so were all the Officers of the County chosen by the County But within a few years in the time of Edward the Second comes another Law That the Sheriffs shall be appointed by the Chancellor Treasurer Barons of the Exchequer and the Justices Which Law was made in favour of the people as by the file of that Statute doth more fully appear for though at the first blush it may seem a priviledge lost by the Freemen that these great men should have the election of the Sheriff yet it proved a great advantage to the common quiet of the people in those times of parties and was so apprehended Otherwise as the case stood in those days of Edward the Second it was no time for him to gain upon the peoples Liberties Nor had the Statute of Articuli super cartas whereof we how treat been penned with these words if they will. And questionless in these days we now live in if the people had but a little taste of this seeming liberty of electing Sheriffs in the County-court as formerly it was used it would be soon perceived that the election of these chief Officers were better disposed in some other hand if rightly pursued Homicide by misfortune shall not be adjudged murder That the Saxons made difference between Homicide by misfortune and that which was done felleo animo or with a spirit of gall formerly hath been shewed now what it was that altered the case I cannot say unless the violence cruelty and oppression of the times Formerly all kind of Manslaughter was finable I mean in the Norman times and so might more rationally be ranked into one degree but now the punishment began to change from forfeiture of Estate and loss of Member to death and forfeiture of Estate and therefore it was more necessary to make the difference in the penalty seeing in the fine formerly a difference was observed and this difference to assert by a Law that might limit the invenomed spirits of the Judges of those days Robbery punished by death This crime hitherto was punished by fine and loss of member at the utmost but is now made capital and punished with death One example whereof and the first that Story maketh mention of we find of an Irish Nobleman in the days of Henry the Third who suffered death for piracy and it was a Law that then though rigorous yet seasonably was contrived to retard the beginnings and hasten the conclusion of a Civil War in a Nation who value their Estates and Liberties above their own lives Rape upon the complaint of the party violated made within forty days shall have right If the Delinquent be convicted without such complaint made he shall be fined
formerly bred by the Canon nourished by continual practice allowed by Ordinance of Parliament or Grant from Kings in Parliament are now confirmed by solemn concurrence of the whole Representative Body of the Kingdom to have and to hold with Warranty And yet the sence is not so general as the words nor doth it seem much other than a Confection made for the Arch-Bishops appetite to cure a distemper between him and the King for the Civil Judge lost nothing hereby nor would the Crown as may appear by a Law of equal Authority with the former for though an Executor or Administrator may cheat yet it tells us that Ordinaries only can oppress and extort from dead men and therefore in such cases doth provide remedy by enquiry and Indictment before the King's Justices They shall have Cognizance of Vsury during the Delinquent's Life and the King after the Delinquent's death The difference ariseth from the different end the first being to reform the Person by Church-censures and to urge him to restitution the latter is for the King 's Fine or Forfeiture For as touching the Usurer's estate the offence was in the nature of Felony forfeiting both Lands and Goods to the King after the Delinquent's death And it seemeth the manner was to Indict the Delinquent during his life and that stuck to him as a deadly Arrow in his side till he died Nor did it lie in the power of the Ordinary by Ecclesiastical censure so to reform the Ofâ—ender as to clear him to the King unless the party offending made his peace with the King by Composition And thus the Law continued for ought appeareth to me till the time of Henry the Eighth They shall have Cognizance of avoidance of Benefices of Right They shall certifie Bigamy and Bastardy had beyond the Sea and whether a Prior be perpetual or Dative The first of these concerning avoidance of Churches it seemeth was somewhat doubtful in point of practice for that the Civil Judge used to determine all manner of avoidances as well in Fact as of Right but by this Statute they are restrained only unto avoidances in Fact so as after this Statute it is holden that avoidances by death shall be tryed by the Countrey but if the avoidance be by Deprivation Resignation Creation or otherwise it shall be tryed by the Ordinary because by common intendment he is more conusant of the thing than Countrey-people But as touching the point of Bigamy the matter is more doubtful in regard that commonly the Marriage of a second Wife or Widow is a matter in Fact done in the face of the people and of which they take notice especially where the life of man is concerned which rather requireth the Judgment of his Peers than where the outward maintenance only is engaged Nevertheless because the main point is whether the party be a Clerk or not and the same anciently rested upon the Certificate of the Ordinary It is by this Law again allowed to him to try and certifie this point of Bigamy also although the Statute of Bigamists might seem to Entitle the Civil Magistrate thereto as the Law was holden to be before this Statute was made In the next place although it cannot be denyed but the Trial of Bastardy beyond the Sea might as well lie in the cognizance of the Lay-Magistrate as in that of the Ecclesiastical yet seeing the Clergy had already attained the cognizance of the thing the place proved but a matter of circumstance especially they having the advantage of the Civil Magistrate in this in regard that the Ecclesiastical persons beyond the Sea had also obtained the cognizance of that matter amongst themselves their Testimony or Certificate would come with more credit to the Clergy in this Kingdom than to the Magistrate whose cognizance in such cases they did disallow Lastly concerning Priories whereas some were presentative and filled by Induction from the Ordinary and others were Donative having their Priors meerly at the will of the Abbot to be placed and displaced as he thought most expedient If then the point in issue depends upon this knot this Law referreth the Trial unto the Ordinary who by common presumption best knows whether any Institution and Induction had passed his Registry and Seal or not And thus though a kind of Judicial power seemeth to be carried along herewith yet is all in a ministerial and subservient way unto the Civil Magistrate and nevertheless with such credit and authority that the main hinge of the Judicatory in such cases depends upon the dash of their pen. No Bishop nor Arch-Bishop shall be Impeached before the Civil Magistrate without the Kings express Warrant The former particulars concerned matter of Authority this and others ensuing concern matter of immunity which or most of which were formerly for a long time within the fancy of the Canon but never came to the height of Parliamentary approbation or Authority till now that it comes in as a peace-offering to pacifie the quarrel between the Arch-Bishop Stratford and the King. For he being engaged in the French Wars so resolved to continue and therefore to maintain distempers at home he held neither Honourable nor safe Their Temporalties shall not be wasted during the vacancy Nor shall they be seized but by Judgment of the Court. The first of these was an ancient Law grounded upon great reason although dulled by time and by covetousness of the needy Patrons next to laid aside if not quite put out of countenance So as a new Law must be made to revive it and to abolish that corrupt custom or practice of depredating those possessions given to a holy use in common supposal contrary to the trust by them undertaken and the use still continuing But the second Branch is in nature of a Law of Restraint set upon the Common-Law for the persons of these Spiritualized men were of so airy a constitution as they could not be holden by hands made out of the Clay such as the rude Laity were and therefore the Civil Magistrate upon all occasions used to lay hold upon that whereof there was some feeling which were called Temporalities and thereby drew them to appearance at the Lay-Courts for however Spiritual the Clergy were they would not easily part with their Lay-Fees But now by this Law the times are so attenuated that the very Temporalities are made so Spiritual as not to be medled with by the Lay-Magistrate unless upon judgment first obtained against them And suitably thereunto within twelve years following another Law was made more punctual That their Temporalties should not be seized upon for contempts but that their persons should be seized yet within twenty years after that this Law begins to be out of countenance and the Opinions of the Judges began to grow bold upon the ancient rule that their Temporalities were Temporal though their persons were Spiritual and that it was more dangerous to