discoursed of the persons and precincts it now befals to touch upon the manner of the government of the Church by the Saxon Prelates which was not wrapped up in the narrow closet of private opinion but stated and regulated by publique Councell as well in the making as executing of lawes already made This course was learned from Antiquity Malmesb. gest pontif lib. 3. fo 263. and inforced upon them by a Roman constitution in the case that concerned Archbishop Theodore and Wilfrid upon this ground Quod enim multorum concilio geritur nulli consentientium ingerat scandalum These are most ordinarily called Synods although at the pleasure of the Relator called also Councels and are either Diocessan or Provinciall or Nationall and these either particular or generall Baronus An. 930. The generall consisted of all the Bishops and Clergy and such was the Synod under Archbishop Dunstan called The Nationall Synods were diversly called sometimes by the Pope sometimes by the King as the first moving occasion concerned either of them For Pope Agatho in a Synod at Rome ordered that a Synod should be called in Saxony viz England Sacrosancta authoritate nostra Synodali unitate Malmesb. gest pontif lib. 3. p 163. An. 680. and many Legatine Synods in succeeding times demonstrate the same That the Saxon Kings also called them upon occasion is obvious through all the Councels and needlesse to instance amongst so many particulars The Provinciall Synods were sometimes convocated by the King and sometimes by the Archbishop Concil Brit. p. 191 310 318. and sometimes joyntly The Diocessan were called by the Bishop In the Nationall and Provinciall sometimes Kings moderated alone sometimes the Archbishop alone and sometimes they joyned together Ibid. 316 318 387. The Assistants were others both of the Clergy and Laity of severall ranks or degrees and it seemeth that women were not wholly excluded for in a Synod under Withered King of Kent Abbatisses were present and attested the acts of that Synod together with others of the Clergy of greater degree The matters in action were either the making or executing of Laws for government and because few Lawes passed that did not some way reflect upon the King and people as well as the Clergy the King was for the most part present and alwaies the Lords and others Yet if the matters concerned the Church in the first act the King though present the Archbishop was neverthelesse president Concil Brit. 245 327 387. as it befell at a Synod at Clevershoe An. 747. and another at Celchith An. 816. And in the reigne of Edward the elder though the Synod was called by the King yet the Archbishop was president Concerning all which it may be in the summe well conceived that the penning of the Councels aforesaid either the Clergy being the pen-men were partiall or negligent in the setting down of the right form and that the Kings called these Assemblies by instance of the Archbishop and sometime presided in his owne person and sometimes deputed the Archbishop thereto The executing of Lawes was for the most part left to the Diocesan Synods yet when the cases concerned great men the more generall Councels had the cognisance and therein proceeded strictly sparing no persons of what degree soever Examples we finde hereof M Westm An. 955 958. Concil Brit. 479. amongst others of one incestuous Lord and two delinquent Kings Edwy and Edgar Nay they spared not the whole Kingdome for in the quarrell between Cenulphus the King and Archbishop Wilfrid the whole Kingdome was under interdict for six yeeres space and no Baptisme administred all that time Ibid. 332. Nor were they very nice in medling with matters beyond their Sphere even with matters of property for at a provinciall Councell for so it s called they bore all down before them even the King himselfe as in the case between Cenulphus the King and the Archbishop of Canterbury concerning the Monastery of Cotham Ibid. 319 332. Concil Brit. p. 334. The like also of another Synod concerning the Monastery of Westburgh It s true the Lords were present and it may be said that what was done was done in their right yet the Clergy had the rule and begat the child and the Lay-Lords onely might challenge right to the name This concurrence of the Laity with the Clergy contracted much businesse and by that meanes a customary power which once rooted the Clergy after they saw their time though not without difficulty turned both King and Lords out and shut the doores after them and so possessed themselves of the whole by Survivorship But of this hereafter The particular Diocesan Synods were as I said called by the Bishops within their severall Diocesses The worke therein was to preach the word as a preparative then to visit inquire of the manners of the Clergy in the worship of God Mag. cent 8. cap 9. and of all matters of scandall and them to correct These Synods were to be holden twice every yeere at certaine times and if they met with any matter too hard for them to reforme they referred it to the Provinciall or Nationall Synod CHAP. XIV Of Causes Ecclesiasticall AS the power of Synods grew by degrees so did also their worke both which did mutually breed and feed each other Heresie An. 446. Their worke consisted in the reforming and setling matters of doctrine and practice The first was the most ancient and which first occasioned the use of Synods In this Island the Pelagian Heresie brought in the first president of Synods that we have extant and herein it will admit of no deniall but in the infancy of the Church the teachers are the principall Judges of the nature of errour and heresie as also of the truth as the Church is the best guide to every Christian in his first instruction in the principles but after some growth there is that in every Church and Christian that makes it selfe party in judging of truth and errour joyntly with the first teachers And therefore it s not without reason that in that first Synod although Germanus was called Judex Beda hist l. 1. yet the people hath the name of Arbiter and t is said that they did contestare judicium Blasphemy Blasphemy was questionlesse under Church-censure but I finde no footsteps of any particular Law against it yet in Scotland a Law was made to punish it with cutting out the tongue of the delinquent Concil Brit. p. 341. An. 840. but it may be feared that neither the Saxons nor their Roman teachers were so zealous for the honour of Gods name as to regard that odious sinne unlesse we should account them so holy as that they were not tainted therewith and so needed no law But Apostacy was an early sinne and soon provided against Apostacy An. 314. Concil Brit. 41. Ibid. 376. the Church-censure was allowed of in Britaine before the Saxons Church had any breath
withstood all though he had twice consented and once subscribed to them Constit at Clarindon having also received some kind of allowance thereof even from Rome it selfe cap. 12. Clergy men holding per Baroniam shall doe such services as to their tenure belong and shall assist in the Kings Court till judgement of life or member Two things are hereby manifest First that notwithstanding the Conquerours law formerly mentioned Bishops still sate as Judges in the Kings courts as they had done in the Saxon times but it was upon causes that meerly concerned the Laity so as the Law of the Conquerour extended onely to separate the Laity out of the Spirituall Courts and not the Clergy out of the Lay courts Secondly that the Clergy especially those of the greater sort questioned their services due by tenure as if they intended neither Lord nor King but the Pope onely Doubtlesse the use of tenures in those times was of infinite consequence to the peace of the kingdome and government of these Kings when as by these principally not onely all degrees were untied and made dependant from the Lord paramont to the Tenant peravale but especially the Clergy 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 halfe almost of the people in England being absolutely put under the dominion of a forraine power Sanctuary shall not protect forfeited goods cap. 13 14. 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 with out Licence Constit at Clarindon cap. 15. It was an ancient Law of the Saxons that no Tenements holden by service could be aliened without licence 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 Churchmen to hold their Tenements free from all humane service which the King withstood Sons of the Laity shall not be admitted into Monastery without the Lords consent cap. 16. Upon the same ground with the former for the Lord had not only right in his tenant which could not be aliened without his consent but also a right in his tenants children in regard they in time might by descent become his tenants so lie under the same ground of law for although this be no alienation by legall purchase yet it is in nature of the same relation for he that is in a Monastery is dead to all worldly affaires 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 Captaine Archbishop Becket withstood the rest which cost him his life in the conclusion with this honourable testimony that his death Samson like effected more then his life for the maine thing of all the rest the Pope gained to be friends for the losse of so great a stickler in the Church affaires as Becket was In this Tragedy the Pope observing how the English Bishops had forsaken their Archbishop espied a muse through which all the game of the Popedome might soon escape and the Pope be left to sit upon thornes in regard of his authority here in England For let the Metropolitane of all England be a sworne servant to the Metropolitane of the Christian world and the rest of the English Bishops not concur it will make the tripple Crown at the best but double Antiq. Brit. 302. F xe An. 1179. Alexander the Pope therefore meaned not to trust their faire 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 conceale their counsels 4. To ayd the Roman papacy against all persons 5. To assist the Roman Legate 6. To come to Synods upon Summons 7. To visit Rome once every three yeeres 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 soules unto her service that which remaines the King of England may keepe And well it was that it was not worse M. Paris An. 1167. considering that the King had vowed perpetuall enmity against the Pope but he wisely perceiving that the Kings spirit would up againe having thus gotten the maine battell durst not adventure upon the Kings reare least he might turn head and so he let the King come off with the losse of appeales Baronus Anal. 1164. Sec. 11. and an order to annull the customes 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 loose to the scarcrow power of Rome yet it befell him as many great spirits that favour prevailes more with them then feare or power for being towards his last times worne with griefe at his unnaturall sonnes a shaddow of the kindnesse of the Popes Legate unto him wonne that which the Clergy could never formerly wrest from him in these particulars granted by him M. Paris An. 1176. That No Clerke shall answer in the Lay courts but onely for the forest and their Lay fee. This savoured more of curtesie then justice and therefore we finde not that the same did thrive nor did continue long in force as a Law although the claime thereof lasted Vacances shall not be holden in the Kings hand above one yeare unlesse upon case of necessity This seemeth to passe 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 Kings 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 murders To prevent this evill the King loth to enter the List with the Clergy about too many matters let loose the law of feude for the friends of the party slaine to take revenge and this cost the blood of many Clerkes the Laity happly being more industrious therein then otherwise they would have been because the Ecclesiasticall Judge for the most part favoured them As an expedient to all which this Law was made and so the Clergy was still left to their Clergy and justice done upon such as sought their blood Clergy men shall not be holden to triall by battaile It was an ancient Law of the Saxons and either
of Ecclesiasticall Empire and a title according thereunto which at length he attained from an Emperour fitted for his turne and this was enough to make him passe for currant in the Empire But Britaine was forsaken by the Roman Empire above 153 yeeres before so as though the Emperour could preferre his Chaplaines power or honour as far as his owne which was to the French shore yet Britaine was in another world under the Saxons power and not worth looking after till the plundering was over and the Saxon affaires setled so as some fat may be had then an instrument is sought after for the worke and none is found so farre fit to winde the Saxon up to the Roman bent as a Monke that was a holy humble man in the opinion of all but of those that were so in the truth and knew him This is Austin sent by Pope Gregory to doe a worke that would not be publiquely owned it was pretended to bring Religion to the Saxons in England therefore they give him the title of the Saxon Apostle but to be plaine it was to bring in a Church-policy with a kind of worship that rendred the Latria to God and the Dulia to Rome The Saxons were not wholy destitute of Religion and that Gregory himselfe in his Letter to Brunchilda the French Queen confesseth Indicamus saith he ad nos pervenisse Ecclesiam Anglicanam velle fieri Christianam Greg. Epist lib. 5. Epist 59. so as there was a good disposition to religion before ever Austen came and such an one as rang loud to Rome But farre more evident is it from the Saxons keeping of Easter more Asciatico which custome also continued after Austens comming fifty yeers sore against Austens will Bed hist lib. 3. cap. 25. the dispute between Coleman and Wilfride beares witnesse to that and it had been a miraculous ignorance or hardnesse had the Saxons a people ordained for mercy as the sequell shewed conversed with the Christian Britaines and Picts above 150 yeeres without all touch of their Religion Bed hist lib. 1. cap. 23. Lib. 3. cap. 4. If we then take Austen in his best colour he might be said to bring religion to the South-Saxons after the Roman garbe and his hotest disputes about Easter Tonsure the Roman supremacy and his owne Legatine power Bed hist lib. 1. cap. 27. Lib. 2. cap. 2. and his worthy Queres to the Pope shew he regarded more the fashion then the thing and the fashion of his person more then the worke he pretended for he loved state Greg. Epist l. 7. Epist 13. and to be somewhat like to the Legate of an Univerall Bishop and therefore of a Monke he suddenly becomes a Bishop in Germany before ever he had a Diocesse or saw England Concil Brit. 92. and after he perceived that his worke was like to thrive he returned and was made Archbishop of the Saxons before any other Bishops were amongst them Bed hist lib. 1. cap. 29. and after three yeeres had the Pall with title of supremacy over the British Bishops that never submitted to him His advantages were first his entrance upon Kent the furthest corner of all the Iland from the Britaines and Picts and so lesse prejudiced by their Church-policy and at that very time interessed in the Roman ayre above all the other Saxons for their King had married a daughter of France one that was a pupill to Rome and a devout woman Bed hist lib. 1. cap. 25. Greg. Epist lib. 9. Epist 59. she first brought Austen into acceptance with the King who also at that present held the chiefe power of all the Saxon Kings in this Isle which was now of great efficacy in this worke for where Religion and power flow from one spring in one streame its hard to chuse the one and refuse the other And thus Rome may thank France for the first earnest they had of all the riches of England and we for the first entrance of all our ensuing bondage and misery 2 Thes 2. Austen had also a gift or trick of working miracles wherein whither more suitable to the working of Satan or of God I cannot define It seemes they walked onely in the dark for either the Britons saw through them or saw them not nor could Austen with his miracles or finenesse settle one foot-step of his Church-policy amongst them happily they remembring the Roman Dagon liked the worse of the Roman woman and the rather because the Carriage of their messenger was as full of the Archbishop as it was empty of the Christian I would not touch upon particular passages of action but that it s so remarkable that Austen himselfe but a novice in comparison of the British Bishops the clearest lights that the Northern parts of the world then had and unto whom the right hand of fellowship was due by the Roman Canon should neverthelesse shew no more respect to them at their first solemn entrance into his presence then to vassals as I could not but note the same as a strong argument that his whole work ab initio was but a vapour of Prelacy This the British Bishops soon espied and shaped him an answer sutable to his message the substance whereof was afterward sent him in writing by the Abbot of Bangor and of late published by Sir Henry Spelman as followeth BE it known and without doubt unto you that we all and every one of us are obedient and subject to the Church of God and to the Pope of Rome and to every godly Christian to love every one in his degree in perfect charity and to helpe every one of them by word and deed to be children of God And other obedience then this I doe not know to be due to him whom you name to be Pope nor by the father of fathers to be claimed or demanded And this obedience we are ready to give and pay to him and to every Christian continually Besides we are under the government of the Bishop of Caerleon upon Uske who is to oversee under God over us and cause us to keep the way spirituall This was the Britons resolution and they were as good as their word for they maintained the liberty of their Church five hundred yeeres after this time and were the last of all the Churches of Europe that gave their power to the Roman beast and in the person of Henry the eighth that came of that blood by Teuther the first that tooke away that power againe Austen having met with this affront and perceiving that the Britons were stronger in their faith then he by his miracles cast about to try the Saxons curtesie that what the Ephod could not the Sword wrapt up therein should Bed hist lib. 2. cap. 2. Concil Brit. fo 111. I say not that he procured but he threatned or prophesied the destruction of the Monkes of Bangor and it came to passe and it s by writers loudly suspected Neverthelesse the
voting without impeachment CHAP. LIX Of the state of the Clergy and their power in this Kingdome from the Normans time IF the prerogative of Kings prevailed not to its utmost pitch during the Normans time it did much lesse in these times succeeding wherein the Clergy tooke up the Bucklers and beate both King and Commons to a retreat themselves in the interim remaining sole triumphers in the field In their first adventure they paced the stage no man appearing to oppose Steven then was King by their leave and their Bondservant and they might have any thing sobeit they would suffer him to enjoy his Crown His brother the Bishop was the Popes servant the Churchmens patron and the Kings surety in whom the Clergies favour to the King and his good behaviour toward them and all men concentred Besides all this the King was but so upon condition and there being no better title then election conscience in those times was well enough satisfied in the breach of covenant on their part where on the Kings part it was first broken All this the King saw full well and therefore what can he deny to such benefactors Vacances of Churches he readily parts with and his right of investure of the Mitred Clergy he dispensed so as he opened the way to his successors of an utter dereliction of that priviledge He sees his brother the Legate deflower the Crown of England by maintaining appeales from the Courts in England unto the Court of Rome and he says nothing he is contented with the stumpe of the Crown and with Saul if he be but honoured above or before all others of the people it s his enough But the Clergy like the barren wombe hath not yet enough The King hath allowed them Castles and too late he sees that instead of being defencas against the Imperiall power of the Empresse they are now made bulwarkes against the lawfull power of a King he had therefore endeavoured to get them down and gotten some of them into his power The King himselfe is now summoned to answer this before a Legatine councell wherein his brother is President that was a bold adventure in them but it was extreame rashnesse in him to appeare and plead the cause of the Crown of England before a Conventicle of his own subjects And thus to secure Rome of supremacy in appeales he suffers a recovery thereof against his own person in a court of Record and so loses himselfe to save the Crown Thus are Synods mounted up on Eagles wings they have the King under them they will next have the Crown Within a while Steven is taken prisoner the Empresse perceiving the power of the Clergy betakes her case to them now assembled in Synod they now proud of the occasion and conceiting that both Law and Gospell were now under their decree publish that the election of the King belongeth unto them and by them the Empresse is elected Queen in open Synod Stevens brother leading the game and had she been as willing to have admitted of the Laws as Steven was she had so continued and had left a strange president in the English government for posterity But the Citizens of London who had made the way to the Throne for Steven reduced the Synod to sober consideration and helped the kings return unto his Throne again wherein he continued a friend to the Clergy during the rest of his time Henry the second succeeded him as brave a man as he but beyond him in title and power and one that came to the Crown without preingagement by promise or Covenant saving that which was proper for a King A man he was that knew full well the interests in the government the growing power of the Clergy and the advantages lost from the Crown by his predecessor and to regaine these he smoothes his way towards these braving men speaks faire proffers faire M. Paris An. 1155. he would act to increase the bounds of the Church he would have the Popes leave to doe him a kindnesse and sobeit he might gaine an interest in Ireland he would take it from the Pope who pretended as heire of Jesus Christ to have the Islands and utmost parts of the earth for his possession and as if he meaned to be as good to the Church as Steven was and much better he desires the Popes kindnes for the confirmation of the liberties and customs of his Crown and kingdom and no sooner desired then obtained This was the 2d example of a King of England but the first of an English king that sought to Rome for right in the Crown and thereby taught the Pope to demand it as a priviledge belonging to the Tripple crown Nor was Henry the second lesse benigne to the Church-men till he found by his deere bought experience that he had nourished Scorpions and would have suppressed them but was rather suppressed himselfe as in that shamefull successe of the death of Becket may appeare wherein he yeelded the day up to the Clergy who formerly scorned to stoop to the greatest Potentate on Earth The state of Kings is to be pitied who must maintaine a politique affection above and sometimes against nature it selfe Constit at Clarindon if they will escape the note of tyranny in their undertakings and of a feeble spirit in their sufferings For the King having made Becket Chancellor of England then Archbishop of Canterbury he became so great that his fethers brushed against the Kings Crown who begins to rouse up himselfe to maintaine his honour and prerogative Royall The Bishops side with Becket the King intending the person and not the Calling singles out the Archbishop and hunts him to soile at Rome yet before he went the King puts the points of his quarrell in writing and made both Archbishop and Bishops signe them as the rights of his Crown and as the Consuetudines Avitae but Becket repenting went to Rome and obtained the Popes pardon and blessing the rest of the Bishops yeelding the cause The particulars in debate were set down in the nature of Laws or Constitutions commonly called the Constitutions at Clarindon which shew the prevailing humour that then overspread the body of the Clergy in those daies and therefore I shall summe them up as follows cap. 1. Rights of Advousons shall be determined in the Kings Court. This had been quarrelled from the first Normans time but could never be recovered by the Clergy Before the Normans time the County courts had them and there they were determined before the Bishop and Sheriffe but the Ecclesiasticall causes being reduced to Ecclesiasticall Courts and the Sheriffe the Laity sequestred from intermedling the Normans according to the custome in their own Country reduced also the triall of rights of Advousons unto the Supreame courts partly because the Kings title was much concerned therein and the Norman Lords no lesse but principally in regard that Rights require the consideration of such as are the most learned
Chaplaine was disturbed enjoyned the Abbat to revoke his presentation upon this ground Cum igitur c. in English thus Antiq. Brit. Eccles fo 209. 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 whiles 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 tooke leave to enact a sence upon a former Canon so long since made and which is all one to make a generall Councell 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 30 aff pl. 5. as was then conceived it will evidently appeare that the power of a Councell made up of a mixture of a few votes out of severall nations or the major part of them being unacquainted with the Laws and customes of Nations other then their own was too meane to set a law upon any particular Nation contrary to its owne originall and fundamentall Law And as the voters sent to the generall Councels from England were but few so neither were the Proctors as may appeare from this that Pope Innocent out of his moderation if we may believe it and to avoyd 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 prevaile yet so blemish the contrary party that what the Pope should get must cost him losse of spirits if not blood and although the Bishops being fast friends to the Pope by vertue of their oath did prevaile in power and the Pope had the controll of the Councell 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 minds of the greater number of persons present though their votes were fewer To avoyd this difficulty therefore for more surety sake the Popes enlarged the number of the voters for whereas it seemeth to be an ancient rule that onely foure Bishops should goe out of England to the generall Councell Hoveden An. 1179. in after ages not one Bishop could be spared unlesse in cases of great and emergent consequence as may appeare by the Popes letter to Henry the third and the case required it for the oppressions of the Pope began to ring so loud M. Paris An. 1245. as the holy chaire began to shake Neither did Kings confine themselves to any certaine number of Proctors notwithstanding the Popes moderation but as the case required sent more or lesse as unto that Councell at Pisa for the composing and quieting that great schisme in the Popedome Henry the fourth sent solemne Embassadours and with them nigh eighty in all But unto the Councell at Basell Henry the sixth sent not above twelve or thirteene as Mr Selden more particularly relateth Spicil 215. And unto the councell at Lions formerly mentioned the Parliament sent but six or seven to remonstrate their complaints of the extorsions of the Court at Rome their Legates and Emissaries The summe of all will be that the Acts of generall Councels were but councels which being offered to the sence of the Parliament of England might grow up to the degree of Lawes if the Parliament liked them Neverthelesse Nation all Synods Synods in England undertooke the quarrell of Generall councels for Archbishop Peckham in a Synod 1280. enjoyned the constitutions made in the Councell at Lions to be observed under a curse without consultation first had with the Parliament or before he knew whether they would be right or wrong and before him Boniface made constitutions in opposition to the customes of the Kingdome so as the matter was now come to a kinde of contest whither Synods or Parliaments should hold supremacy in doubtfull cases concerning the limits of the Ecclesiasticall and temporall power for henceforth Kings must bid adieu to the Synods and sit no more amongst them and Synods now thinke themselves free to consult and determine what they please without speaking under correction nor was there other remedy left to Kings but threats by Writs directed to the Bishops firmiter inbibendo quod sicut Baronias quas de Rege tenent deligunt nullo modo praesumunt concilium tenere de aliquibus quae ad coronam Regis attinent vel quae ad personam Regis vel statum suum vel statum concilii sui contingunt Rot Parliam 18 H 3. num 17. quod si fecerint Rex inde se capiet ad Baronias suas And this prevailed so farre as the Bishops durst not adventure too farre least they should goe beyond their guard and therefore they come and aske leave of the Parliament in cases that trenched upon the Law of the Kingdom as they did in the case of bastardy wherein they would have had their consent that children borne before marriage to be made legittimate by the marriage subsequent Stat. Merton cap. 9. and yet they could not prevaile for they were answered Nolumus leges Angliae mutari notwithstanding that the Canon law and the laws of the Normans sided with them and so they obtained not their desire although they still retained the triall of generall bastardy unto themselves Neverthelesse the times were such as Kings being too weakly assisted by the people and the Clergy strongly seconded by the Pope they tooke advantage of those times of distraction so as to hold themselves no further obliged to the King then the Pope and their own covetousnesse would allow them and to make all sure they had setled it so farre as they were able by a constitution that the Clergy were not bound to ayd the King Papa inconsulto Antiq. Brit. and they put it in practise in a Synod under Archbishop Winchelsie Anno 1295. in the time of Edward the first and although the King prevailed in the conclusion at that time yet from the times of Henry the third the Clergy for future times granted their aides to the King by themselves and a part from the rest of the body of the Kingdome and held themselves not bound by any ayd granted by the Parliament albeit that their own ayds granted in their Synods were not obligatory unto the body of the Clergy in this Kingdome unlesse first allowed and confirmed by the Parliament And thus is England become like a two bodied monster supported with one paire of legs CHAP. LXVII Of the condition of the free men of England of the grand
there as may appeare in the severall relations thereof made by Matthew Westminster and Sir Henry Spelman an Author that he maketh much use of and therefore I shall be bold to make the best use of him that I can likewise in Vindicating the truth of the point in hand For whatever this Councill was it s the lesse materiall seeing the same Author recites a president of King Aethelbert within six yeares after Austins entry into this Island which was long before this Councill which bringeth on the Vann of all the rest of the Opponents instances which King called a Councill styled Commune Concilium tam Cleri quam Populi Pag. 126. and in the conclusion of the same a Law is made upon the like occasion Si Rex populum Convocaverit c. in both which its evident that in those times there were Councils holden by the People as well as the Magnates or Optimates His next instance is in the yeare 694. which is of a Councill holden by the Great Men but no mention of the Commons and this he will have to be a Parliament albeit that he might have found both Abbatesses or Women and Presbyters to be Members of that Assembly and for default of better attested the conclusions of the same notwithstanding the Canon Nemo militans Deo c. But I must also minde him that the same Author reciteth a Councill holden by King Ina Suasu omnium Aldermannorum Seniorum Sapientum Regni and is very probable that all the Wise men of the Kingdome were not concluded within the Lordly dignity The third instance can have no better successe unlesse he will have the Pope to be allowed power to call a Parliament or allow the Arch-Bishop power to doe that service by the Popes command for by that authority this what ever it be was called if we give credit to the relation of Sir Henry Spelman who also reciteth another Councell within three leaves foregoing this Concil Britt Pag. 212. called by Withered at Barkhamstead unto which the Clergy were summoned Qui cum viris utique militaribus communi omnium assensu has leges decrevere So as it seemeth in those times Ibid. pa. 194. Souldiers or Knights were in the common Councels as well as other Great Men. In the next place he bringeth in a Councill holden in the yeare 747. Ibid. pa. 242. 245. which if the Arch-Bishop were then therein President as it s sayd in the presence of the King was no Parliament but a Church-mote and all the conclusions in the same doe testifie no lesse they being every one concerning Ecclesiasticall matters Pag. 219. And furthermore before this time the Author out of whom he citeth this Councill mentioneth another Councill holden by Ina the Saxon King in the presence of the Bishops Princes Lords Earles and all the wise old Men and People of the Kingdome all of them concluding of the intermarriage between the Brittons Picts and Saxons which formerly as it seemeth was not allowed And the same King by his Charter mentioned by the same Penman noteth that his endowment of the Monastry of Glastenbury was made not onely in the presence of the Great Men but Cum praesentia populationis and he saith that Omnes confirmaverunt which I doe not mention as a worke necessary to be done by the Parliament yet such an one as was holden expedient as the case then stood Forty yeares after hee meeteth with another Councill which he supposeth to be a Parliament also but was none unlesse he will allow the Popes Legate power to summon a Parliament It was holden in the yeare 787. and had he duely considered the returne made by the Popes Legate of the Acts of that Councill Pag. 300. which is also published by the same Author hee might have found that the Legate saith that they were propounded in publike Councill before the King Arch-Bishop and all the Bishops and Abbots of the Kingdome Senators Dukes or Captaines and people of the Land and they all consented to keep the same Then he brings in a Councill holden in the year 793. which he would never have set downe in the list of Parliaments if he had considered how improper it is to construe Provinciale tenuit Concilium for a Parliament and therefore I shall need no further to trouble the Reader therewith The two next are supposed to be but one and the same and it s sayd to be holden Anno 974. before nine Kings fifteene Bishops twenty Dukes c. which for ought appeares may comprehend all England and Scotland and is no Parliament of one Nation but a party of many Nations for some great matter no doubt yet nothing in particular mentioned but the solemne laying the foundation of the Monastry of Saint-Albans What manner of Councill the next was appeareth not and therefore nothing can be concluded therefrom but that it was holden in the yeare 796. That Councill which is next produced was in the yeare 800. and is called in great letters Concilium Provinciale which he cannot Gramatically construe to be a Parliament yet in the Preface it is sayd that there were Viri cujuscunque dignitatis and the King in his Letter to the Pope saith concerning it Pag. 321. Visum est cunctis gentis nostrae sapientibus so as it seemeth by this and other examples of this nature that though the Church-motes invented the particular conclusions yet it was left to the Witagen-mote to Judge and conclude them There can be no question but the next three Presidents brought by the Opponent were all of them Church-motes Concil Brit. Pag. 328. For the first of them which is sayd to be holden in the yeare 816. is called a Synod and both Preists and Deacons were there present which are no Members of Parliament consisting onely of the House of Lords and they all of them did Pariter tractare de necessarijs utilitatibus Ecclesiarum The second of them is called a Synodall Councill holden Anno 822. and yet there were then present Omnium dignitatum optimates which cannot be understood onely of those of the House of Lords because they ought all to be personally present and therefore there is no Optimacy amongst them The last of these three is called Synodale Conciliabulum a petty Synod in great letters Concil Brit. Pag. 334. and besides there were with the Bishops and Abbots many Wise men and in all these respects it cannot be a Parliament onely of the great Lords The next Councill said to be holden in the yeare 823. cannot also be called properly a Parliament but onely a consultation between two Kings and their Councill to prevent the invasion of the Danes and the attests of the Kings Chapplain and his Scribe doe shew also that they were not all Members of the House of Lords The Councill cited by the Opponent in the next place was holden An 838. being onely in nature of a Councill for Law or
Judicature to determine the validity of the Kings Grant made to the Church of Canterbury which is no proper worke for a Parliament unlesse it befall during the sitting of the same The next is but a bare title of a Councill supposed to be holden An. 850. And not worth its room for it neither sheweth whether any thing was concluded nor what the conclusions were The worke of the next Councill alleadged to be holden An. 851. was to confirme the Charter of the Monastry of Croyland and to determine concerning affaires belonging to the Mercians and if it had beene a Parliament for that people it might be worthy of inquiry how regularly the Arch-Bishop of Canterbury and the Bishop of London and the Ambassadors from the West Saxons could fit amongst them and attest the conclusions therein made as wel as the proper members of that Nation He commeth in the next place to a Councill holden in the yeare 855. which is more likely to be a Parliament then most of them formerly mentioned if the Tithes of all England were therein given to the Church but hereof I have set downe my opinion in the former part of the discourse And though it be true that no Knights and Burgesses are therein mentioned as the Opponent observeth out of the Title yet if the body of the Lawes be duly considered towards the conclusion thereof it will appeare that there was present Fidelium infinita multitudo qui omnes regium Chirographum Laudaverunt Dignitates verò sua nomina subscripserunt Concil Brit. Pag. 350. And yet the Witagen-motes in these times began to be rare being continually inrerrupted by the invasions of the Danes The three next Councills alleaged to be in the yeares 930. 944. 948. Were doubtlesse of inferiour value as the matters therin concluded were of inferiour regard being such as concerne the passing of the Kings Grants Infeodations and confirmations The Councill mentioned to be in the yeare 965. is supposed to be one and the same with the next foregoing Concil Brit. Pag. 480. by Sir Henry Spelman which calls it selfe a generall Councill not by reason of the generall confluence of the Lords and Laity but because all the Bishops of England did then meet The Primi and Primates were there who these were is not mentioned but its evident that the King of Scots was there and that both he and diverse that are called Ministri Regis attested the conclusions It will be difficult to make out how these should be Members of the House of Lords and more difficult to shew a reason why in the attesting of the acts of these Councills which the Opponent calls Parliaments we finde so few of the Laity that scarce twelve are mentioned in any one of them and those to descend so low as the Ministri Regis to make up the number Five more of these instances remaine before the comming in of the Normans The first of which was in the yeare 975. and in a time when no Parliament Concil Britt Pag. 490. according to the Opponents principles could sit for it was an Inter regnum The two next were onely Synods to determine the difference between the Regulers and the Seculers in the Kings absence by reason that he was under age and they are sayd to be in the yeares 977 and 1009. But it s not within the compasse of my matter to debate their dates The last two were Meetings or Courts for Judicature to determine the crime of Treason which every one knowes is determinable by inferiour Courts before the high Steward or Judges and therefore not so peculiar to a Parliament as to be made an argument of its existence And thus are we at an end of all the instances brought by the Opponent to prove that Parliaments before the Norman times consisted of those whom we now call the House of Lords All which I shall shut up with two other notes taken out of the Book of Councils published by Sir Henry Spelman The first of which concerneth a Grant made by Canutus Pag. 534. of an exemption to the Abby of Bury Saint Edmonds in a Councill wherein were present Arch-Bishops Bishops Abbots Dukes Earles Cum quamplurimis gregariis militibus cum populi multitudine copiosa votis regiis unanimiter consentientes The other taken out of the confessors Lawes which tells us that Tithes were granted to the Church A Rege Baronibus populo Pag. 621. And thus shall leave these testimonies to debate with one another whiles the Reader may judge as seemeth most equall to himselfe Being thus come to the Norman times and those ensuing I shall more summarily proceed with the particulars concerning them because they were times of force and can give little or no evidence against the customes rightly setled in the Saxon times which I have more particularly insisted upon that the originall constitution of this government may the better appeare Now for the more speedy manifesting of the truth in the particulars following I shall pre-advise the Reader in three particulars First that the Church-motes grew more in power and honor by the aide of the Normans Law refusing the concurrence and personall presence of Kings whom at length they excluded from their Councils with all his Nobles and therefore it is the lesse wonder if we heare but little of the Commons joyning with them Secondly that the Norman way of government grew more Aristocraticall then the Saxon making the Lords the cheif Instruments of keeping Kings above and people underneath thus we meet with much noise of meetings betweene the King and Lords and little concernning the grand meetings of the Kings and the representative of the people although some footsteps wee finde even of them also For Kings were mistaken in the Lords who meaned nothing lesse them to serve them with the peoples liberties together with their owne which they saw wrapped up in the grosse Thirdly by this meanes the Councils of the King and Lords grew potent not onely for advise in particular occasions but in matters of judicature and declaring of Law ordering of processe in Courts of Plees which in the first framing were the workes of Wise and Learned men but being once setled become part of the liberties of every Free-man And it is not to be doubted but these Councills of Lords did outreach into things two great for them to mannage and kept the Commons out of possession of their right during the present heat of their ruffling condition yet all this while could not take absolute possession of the legislative power I now come to the remainder of the particular instances produced by the Opponent which I shall reduce into severall Categories for the more cleere satisfaction to the Reader with lesse tediousnesse First it cannot be denied but the Councill of Lords gave advise to Kings in cases of particular immergency nor is it incongruous to the course of government even to this day nor meere that the Parliament
note and of unknown name In charity therefore the English Church in those daies must be of mean repute for outward pompe and not lifted up to that height of Archbishops when as Rome it selfe was content with a Bishop Somewhat more probable it is that is noted by writers concerning Lucius his endeavour to settle the Common-wealth and good Lawes for government and to that end did write a Letter to Eleutherius Bishop of Rome for a modell of the Roman Lawes probably being induced thereunto by the splendor of the state of the Roman Church and Common-weale the onely favourite of fame in those times through the Northern parts of the World Things afar off I confesse are dim and its meet that Antiquaries should have the honour due to great after-sight And therfore I might think as some of them have done that the Epistle of Eleutherius to King Lucius is spurious if I could imagine to what end any man should hazzard his wits upon such a fiction or if the incongruities charged against it were incurable but being allowed to be first written in Latine and then translated into British for the peoples satisfaction and in that Language the originall being lost traduced to posterity and then by some Latine writer in after ages returned into Latine and so derived to these times all which very probably hath been such occasions of exceptions might well arise by mistake of translators and transcribers in ignorant times and the substance neverthelesse remaine entire and true Considering therefore that the matter of that Epistle savoureth of the purer times of the Church and so contrary to the dregs of Romulus Cic. Attic. 2. I meane the policy practice and language of the Roman Clergy in these latter ages wherein this forgery if so it be was made I must allow it to passe for currant for the substance not justifying the syllabicall writing thereof To others it seemeth needlesse and vaine that Lucius should send for a modell to Eleutherius when as the Roman Deputies and Legions at home might have satisfied the Kings desire in that particular or their owne experience might have taught them grounds sufficient after two hundred yeeres converse with the Romans that they should have little needed a model for that which they saw continually before their view or might have understood by inquiry of their own acquaintance But what could be expected of rough souldiers concerning forme of government of a Common-weale or if some exceeded the ordinary straine in policy yet they were too wise to communicate such Pearles to conquered Nations that ought to look no higher then the will of the Conquerour and subsist in no better condition then may be controlled by the Supreame Imperiall Law of the Lord Paramount or if in this they had corresponded to the desires of the Britaines yet being for the most part ignorant of the maine they could never have satisfied the expectations of a Christian King who desires such a Law as may befriend Religion and wherein no man was more like to give direction then Eleutherius who seeing a kind of enmity between the Roman Lawes and Christs Kingdom sends to the King a fair refusall of his request upon this ground that leges Romanas Caesaris semper reprobare possumus he saw that they were not well grounded he therefore refers the King to the sacred Scripture that is truth it selfe Lawes that come nighest to it are most constant and make the government more easie for the Magistrate quiet for the people and delightfull to all because mens minds are setled in expectation of future events in government according to the present rule and changes in course of government are looked at as uncouth motions of the Celestiall bodies portending judgements or dissolution This was the way of humane wisdome but God had an eye on all this beyond all reach of preconceipt of man which was to make England happy in the enjoying of a better Law and government then Rome how glorious soever then it was and to deliver that Island from the common danger of the world for had we once come under the law of the first beast as we were under his power we had been in danger of being borne slaves under the Law of the second beast as other Nations were who cannot shake it off to this day But Lucius lived not to effect this worke it was much delayed by the evill of the times nothing was more changeable then the Empire grew the Emperours many of them so vicious as they were a burden to mankind nor could they endure any Deputy or Lieutenant that were of better fame then themselves had Some of them minded the affaires of the East others of the North none of them were ad omnia And the Lieutenants in Britaine either too good for their Emperour and so were soon removed or too bad for the people of the Land and never suffered to rest free from tumults and insurrections neither Lucius could prevaile nor any of his successors But passing through continuall crosse flouds of persecutions under Maximinus Dioclesian and Maximinianus and many civill broyles till the times of Constantine at length it attained the haven For Constantine having overcome Maxentius and gotten thereby into the highest Orbe of government in the Empire reflected such an amiable aspect upon the Churches especially in Britaine as if he had intended to pay to them all that God had lent him A wise Prince he was questionlesse yet towards the Church shewed more affection endeavouring to reduce the government in every place unto the Roman Prototype and therein added much honour to that See especially to Pope Sylvester whose Scholler he had been This may seem a sufficient inducement to perswade that he was the first patron of English Prelacy seeing we finde it in no approved testimony before that time nor was it long after whenas the presence of the Brittish Bishops are found at the Synod by him called at Arles viz. the Bishops not Archbishops of London and Yorke Concil Brit. 42. and the Bishop of Maldune and those in no great pompe if the relation be true that by reason of their poverty they were not able to undergoe the charge of their journey and attendance so as it seems they had but new set up and had not yet found out the right way of trade that other Bishops had attained And thus God ordered first the setling of a Government of the Church in Britaine and its Liberties before the Secular part enjoyed any therein working with this Nation as with a man making him to be bonus homo before he can be bonus civis The Church of Britaine thus set together is wound up for motion they soon learnd the use of Synods from that Synod at Arles if they had it not before and tooke as much power to themselves in their Synods as in other Countries was used and somewhat more to boot For they had the hap to continue in Britaine in
of their estates as well reall as personall especially in the particulars ensuing The most ancient of all the rest was the First-fruits First-fruits which was by way of eminency called Cyrick-sceate or in more plaine English Church-fee which was alwaies payable upon St Martins day unto the Bishop out of that house where the party did inhabit upon the day or Feast of the Nativity Concil Brit. p. 185. An. 693. Concil Brit. p. 545. It was first granted by Parliament in the time of King Ina and in case of neglect of payment or deniall it was penall eleven-fold to the Bishop besides a fine to the King as was afterwards ordered by Canutus Tythes Concil Brit. p. 298. An. 787. After the first fruits commeth to consideration the Revenue of Tithes whereof I finde no publique act of state to warrant till the Legatine councell under Offa although the Canon was more ancient The Bishop at the first was the generall receiver as well of these as of the former and by him they were divided into three parts and imployed one to the poore another for the maintenance of the Church Concil Brit. 259. and a third part for the maintenance of the Presbyter But in future times many acts of state succeeded concerning this Ingulsus amongst which that grant of Athelwolfe must be a little paused upon Some writers say that he gave the tenth mansion Gest pontif Lib. 2. cap. 2. and the tenth of all his goods but Malmsbury saith the tenth of the hides of Land but in the donation it selfe as it s by him recited it s the tenth mansion But Math. Westm understands that he gave the tenth part of his Kingdome An. 854. but in the Donation by him published it is decimam partem terrae meae In my opinion all this being by tradition little can be grounded thereupon The forme of the Donation it selfe is uncertaine and varions the inference or relation more uncertaine and unadvised for if the King had granted that which was not his owne it could neither be accounted pious or rationall Nor doe we finde in the donation that the King in precise words gave the Land or the tenth part of the Land of his Kingdome but the tenth of his Land in the Kingdome and the exemplification published by Math. Westm countenanceth the same albeit the Historian observed it not but suppose that the Kingdome joyned with the King in the concession and that it was the course to passe it onely in the Kings name yet could not the tenth Hide tenth Mansion or tenth part of the Kingdome be granted without confusion in the possessions of the people for either some particular persons must part with all their possessions or else out of every mans possession must have issued a proportionable supply or lastly a tenth part of every mans possession or house and land must be set forth from the rest or some must lose all and become beggars to save others all which are to me equally improbable Neverthelesse I doe not take the thing to be wholy fabulous but may rather suppose that either a tenth was given out of the Kings own Demesnes which is most probable or else the tenth of the profits of the Lands throughout the Kingdome and that it was by publique act of state and that clause forgotten by Historians Concil Brit. p. 392. An. 905. Ibid. 527. An. 1009. And thus might a good president be led to Alfred Athelstan and other Kings who setled Lawes under payment of penalties and appointed the times of payment viz. the small Tithes at Whitsuntide and the great Tithes at Alhollantide Another Tribute was that of Luminaries Luminaries Concil Brit. p. 377. Ibid. 545. An. 1032. which by Alfred and Gunthrun was first setled by Law although it had been before claimed by Canon It was payable thrice a yeere viz. Hollantide Candlemas and Easter at each time a halfe penny upon every Hide of Land and this was under a penalty also Ploughalmes An. 905. Another Income arose from the Plough and under the name of Plough-almes at the first it was granted by Edward the Elder generally and the valew was a penny upon every plough and in after times it was ordained to be payd fifteen daies after Easter An. 1009. Souleshot Concil Brit. d. 571. An. 1009. Next comes a fee at the death of the party which was commonly called Soul-shot and payd before the dead body was buried unto that Church where the dead parties dwelling was so as they never left paying and asking so long as the body was above ground and its probable turned into that fee which was afterward called a mortuary The incumbent also of every Church had Glebe laid to the Church Glebe Concil Brit. 260. An. 750. besides oblations and other casuall profits as well arising from houses bordering upon the Church as otherwise All these foure last were payable to the Priest of that particular Congregation and had not their beginning till Parishes came to be setled Peterpence Lastly the zeale of the charity of England was not so cold as to containe it selfe within its own bounds they were a dependent Church upon Rome and their old mother must not be forgotten An Almes is granted for under that lowly title it passed first but afterwards called Romscot or Romesfeogh or Heord-penny for it was a penny upon every hearth or chimney payable at the Feast of St Peter ad vincula and therefore also called Peter-pence it was for the Popes use and was setled under great penalties upon the defaulters It arose by degrees and parcels Concil Brit. p. 230. An. 725. for first Ina the Saxon King granted a penny out of every house in his Kingdome after him Offa granted it out of every dwelling house that had ground thereto occupied to the yeerely valew of thirty pence Concil Brit. p. 311. An. 791. excepting the Lands which he had purposed for the Monastery at St Albans This Offa had a much larger Dominion then Ina and was King over three and twenty shires after whom Aethelwolfe passed a new grant thereof out of his whole Kingdome Ibid. 343. An. 847. which was well nigh all that part which was called Saxony with this proviso neverthelesse that where a man had divers dwelling houses he was to pay onely for that house wherein he dwelt at the time of payment Ibid. 621. Afterward Edward the Confessor confirmed that Donation out of such Tenements as had thirty pence vivae pecuniae If then it be granted that the Saxon subjects had any property in their Lands or tenements as no man ever questioned then could not this charge be imposed without the publique consent of the people and then the assertions of Polidore and the Monks who tell us that Ina and Offa had made the whole kingdome tributary to Rome must needs be a mistake both in the person and the nature of the gift seeing
or no power by the Canon that was not under their controle neither in admission or deprivation of Presbyters or others determining of any cause Concil Brit. 260 263. nor passing sentence of excommunication and this could not but much hinder the hasty growth of Antichrists power in this Kingdome nor could it ever be compleated so long as the Synods had the chiefe power Neverthelesse the inthralled spirits of the Clergy and terror of the Papall thunderbolt in continuance of time surmounted this difficulty and Synods became so tame and easily led as if there had been but one Divell to rule amongst them all For if any quick eye or active spirit did but begin to peep or stir the Legate e latere soon reduced him into ranke and kept all in awe with a sub poena of unknown danger A third errour was the allowing of peculiars and exemptions of Religious Houses from ordinary jurisdiction and this was an errour in the first concoction a block in the way of Prelacy and a clogge to keepe it down This errour was soon felt and was occasion of much mutiny in the body Ecclesiasticall but exceeding profitable for Rome not onely in point of Revenue by the multitude of appeales but especially in maintaining a party for the Roman See in case the Prelacy of England should stumble at the Supremacy of Rome Otherwise it seemed like a wenne upon the body rather then any homogene member and without which certainly the English Prelacy had thriven much better and the Roman chaire much worse In all which regards I must conclude that the Prelaticall government in England was as yet like a young Bear not fully licked but left to be made compleat by time and observation CHAP. XVI Of the Saxon Common-weale and the government thereof and first of the King HAving already treated of the Saxon Church in order I am now come to the Republique which in all probability will be expected to be suitable to their originall in Germany whereunto having relation I shall first fall upon the persons and degrees abstractively then in their assemblies and lastly of their Laws and customes The Saxons in their first state in Germany were distributed into foure classes viz. the Nobles the free-men the manumitted persons and the bond-men Under the Nobility and from them arose one that was called a King of whom I shall speake a part the two last differed onely in the bare liberty of their persons and therefore may be comprehended under one head as they were in their originall A King amongst the Saxons in probability was anciently a Commander in the field an Officer pro tempore and no necessary member in the constitution of their state for in time of peace when the Common-wealth was it selfe the executive power of the Law rested much in the Nobility but in times of warre and in publique distractions they chose a Generall and all sware obedience unto him during the war Witikum gest Saxon. lib. 1. it being finished the Generall laid down his command and every one lived aequo jure propria contentus potestate But in their transmigration into Britaine the continuance of the war causing the continuall use of the General made that Place or Office to settle and swell into the condition of a King and so he that was formerly Dux became Rex there being no more difference in the nature of their places then in the sence of the words the one signifying to lead the other to governe so as he that formerly was a servant for the occasion afterwards became a servant for life yet clothed with Majesty like some bitter Pill covered with Gold to make the service better tasted Nor was the place more desirable if duly considered For first his Title rested upon the good opinion of the Free-men and it seemeth to be one of the best Gems of the Crown for that he was thereby declared to be most worthy of the love and service of the people Yet was the ground of their election so uncertaine as a man might imagine that sometimes there appeared more of the will then of the judgement in it that it might be said to be the more free for they neither excluded women nor children further then present occasions lead them The West-Saxons deposed Seburg their Queen because they would not fight under a woman M. Westm An. 672. M. Westm An. 912 919. Tacit. Cragius but the Mercians obeyed Elfled their Queen and under her fought valiantly with good successe against the Danes imitating the custome of the Sitones or Norwegians in Germany as they might borrow it from the Lacedemonians A custome it was so much the more honourable by how much it demonstrateth freedome and that the worth of the people rested not so much in the head as it s diffused through the whole body And it seemeth to runne in the blood of an English man even to this day to be as brave under a single Queen as under the most valiant King if not much more and still to strive to be as famous for the defence of Majesty whereever they set it as the Britons were of old Nor were they different in their respect of age from that of the sex for though after the death of Edmond Edwin or Edgar were to have succeeded in the Crown by the right of descent yet the States would not admit them because they were minors but the Mercians admitted Kenelme a child of seven yeeres old to be their King They likewise excluded not bastards till the Clergy interposed for they having wound themselves into the Councels of the Kingdome procured a constitution to back them in the election of Kings Legitime c. Let the Kings be legally chosen by Priests and Elders and not such as are begotten by adultery or incest Which constitution was made in a Legatine councell Mag. cent 8. cap. 9. An. 747. and confirmed by great Offa The rule of their election was the same with that in Germany viz. to elect the chiefest out of the chiefest family that is Tacitus the chiefest for worth not by descent yet the honour they bare to their brave Kings who had deserved well made some to honour their posterity and to chuse their eldest after their decease and so in time Crownes were taken up by Custome and election often times subsequent was accounted but a ceremony unlesse the people will dispute the point Secondly this election was qualified under a stipulation or covenant wherein both Prince and people were mutually bound each to other the people to defend their King which the Historian saith was praecipuum Sacramentum Tacitus and the Prince to the people to be no other then the influence of the Law sutable to that saying of Aethelstan the Saxon King Concil Brit. p 397. seeing I according to your Law allow you what is yours doe you so with me as if the Law were the sole umpire between King and people and unto
discipline Ll. Canut cap. 58. if they followed their rule which was made not by the arbitry of the Generall but by Parliament These amongst other scattered principles concerning Sea-affaires may serve to let us know that the Law-Martiall and that of the Sea were branches of the positive Lawes of the kingdome setled by the generall vote in the Wittagenmot and not left to the will of a lawlesse Generall or Commander so tender and uniforme were those times both in their Laws and liberties CHAP. XXIII Of the government of the Saxon Kingdome in times of peace and first of the division of the Kingdome into shires and their Officers IF the Saxon government was regular in time of warre how much rather in time of peace All great works are done by parcels and degrees and it was the Saxons ancient way in Germany to divide their Territory into severall circuits or circles and to assigne to each their severall Magistrates all of them ruled by one Law like one soule working in severall members to one common good Thus they did here in England having found the Land already divided into severall governments they likewise what they conquered divided into severall parts called Comitatus or Counties from the word Comes that signifies a companion and the Counties thence called are nothing but societies or associations in publique charge and service But the Saxon word is shire or share that is a portion or precinct of ground belonging to this or that person or great Town and bearing the name of that person or Town and sometimes of the scituation of the people as North or South folke East or South Sex or Saxons This division by the names seems to be of Saxon originall and though by the testimony of Ingulfus and other writers Seld. Tit. Hon. it might seem to be done by Alfred yet it will appeare to be more ancient if the reader minde the grant of Peter pence made by King Offa wherein is recorded the severall Diocesses and shires out of which that grant was made under the very same names that they own at this day M. Westm An. 794. and that grant was more ancient then Alfreds time by the space of 80 yeeres Each of these Shires or Counties had their two chiefe Governours for distributive justice of these the Sheriffe was more ancient and worthy Officer being the Lieutenant Sheriffs and ayded by the power of the County in certaine cases for his Commission extended not to leavy warre but to maintain Justice in that County and within the same and in this work he was partly ministeriall and partly judiciall in the one he was the Kings servant to execute his Writs in the other he regulated the Courts of justice under his survey Ll. Edw. c. 35. He was chosen in the County Court called the Folkmote by the votes of the Freeholders and as the King himselfe and the Heretock were intituled to their honour by the peoples favour Coroners The Coroner though in originall later was neverthelesse very ancient he was the more servant or Officer to the King of the two His worke was to enquire upon view of manslaughter and by indictment of all felonies as done contra coronam which formerly were onely contra pacem and triable onely by appeale Miror cap. 1. Sec. 13. As also he was to inquire of all escheates and forfeitures and them to seize He was also to receive appeales of Felonies and to keep the rolls of the Crown pleas within the County It s evident he was an Officer in Alfreds time Miror p. 300. for that King put a Judge to death for sentencing one to suffer death upon the Coroners record without allowing the delinquent liberty of traverse This Officer also was made by election of the Freeholders in their County Court as the Sheriffe was Fits N. Br. 163 164. and from amongst the men of chiefest ranke in the County and sworn in their presence but the Kings Writ lead the worke CHAP. XXIV Of the County Court and the Sheriffs Torne THe government of the County in times of peace consisted much in the administration of justice which was done in the publique meetings of the Freeholders their meetings were either in one place or in severall parts of the County in each of which the Sheriff had the mannaging of the acts done there Folkmote or County court The meeting of the Freemen in one place was called the Folkmote by the Saxons saving the judgement of the honourable reporter Coke instit 2. p. 69. and of latter times the County court the work wherein was partly for consultation direction concerning the ordering of the County for the safety and peace thereof such as were redresse of grievances election of Officers prevention of dangers c. and partly it was Judiciall Miror p. 147. in hearing and determining the common pleas of the County the Church affaires and some trespasses done therein but not matters criminall for the Bishop was Judge therein together with the Sheriffe and by the Canon he was not to intermeddle in matters of blood yet neither was the Bishops nor Sheriffs worke in that Court other then directory or declaratory for the Free-men were Judges of the fact and the other did but edocere jura populo Ll. Canut Miror cap. 1. Sec. 15. yet in speciall cases upon petition a Commission issued forth from the King to certaine Judges of Oier to joyn with the others in the hearing and determining of such particular eases Miror cap. 5. Sec. 1. But in case of injustice or errour the party grieved had liberty of appeale to the Kings Justice Nor did the Common pleas originally commence in the County court Ll. Canut Ll. Edgar unlesse the parties dwelt in severall Liberties or Hundreds in the same County and in case any mistake were in the commencing of suits in that Court which ought not to be upon complaint the Kings Writ reduced it to its proper place and in this also the Kings own Court had no preeminence Concil Brit. p. 197. tit 22. In those ancient times this County court was to be holden but twice a yeere by the constitution of King Edgar but upon urgent emergencies oftner and that either by the Kings especiall Writ Ll. Edw. cap. 35 or if the emergent occasions were sudden and important by extraordinary summons of ringing the Moot-bels Unto this Court all the free men of the County assembled to learne the Law to administer justice Ll. Edw. cap. 35 to provide remedy for publique inconvenience and to doe their fealty to the King before the Bishop and Sheriffe upon oath and in the worke of administring justice Ll. Edw. cap. 4. causes concerning the Church must have the precedency so as yet the Canon law had not gotten footing in England The other Court wherein the Sheriffe had the directory was in the meeting of the free men in severall
time and occasion to worke the issue which doubtlesse was much and had been more had the Norman race continued in the Throne But falling out otherwise the English blood prevailed in the head and the Language continued possession mixed onely with some Norman words as the people were also a mixed people So as the Language was changed though it was altered Lastly it s affirmed that the Normans did impose a new custome called Coverfeu and its thought by some to be a meere vassalage that every man at the noise of the Bell every night must put out both fire and Candle and yet is a matter of so small concernment that of being in its own nature convenient Scotland received it without such coercion and can be reputed for no other then a seasonable advice which any Corporation in time of danger might order within their own Precinct without transgressing the liberty of the subjects Of lesse consequence is that change which is alledged was brought in by the Normans in the sealing of Deeds of conveyance by seting a print upon Wax annexed to the Deed which formerly was wont to be by setting a print upon the blanke at the end of the Deed and yet it s looked upon by some as a trophee of conquest or absolute government concerning which I will not dispute whether the Normans first brought in this course but shall rest in this that the King being about to compleat the unity of the Laws in the superstructure as well as in the fundamentals if herein and in some other particulars the English submitted to the Normans they likewise stooped to the English Law in other things and therefore such concurrences ought not to be imputed unto a conquering power but unto moderation amongst a company of wise men Thus having glanced at the changes of Property Lawes Tenures Language and some customes we come to that which is the maine occasion of all these complaints I meane unlawful Taxes afforstinges and other such oppressions upon the estates of the people concerning which I purpose not to contend for much thereof is like to be true the Norman Kings especially the two Williams being under continuall occasion of expence many warres more provocations which kept them ever in action and that wrought their spirits into an immoderate heat little inferiour unto rage and so they might soon outreach their bounds and sit heavy on the people and in such occasions no man escaped Norman nor English Clergyman nor Layman nor did the Kings themselves come off such gainers but that they might sometimes put up their gettings into their own eyes and see never a whit the worse And yet to doe them right they were not alwaies of such sad influence but had their lucida intervalla especially he that had the least cause I mean the Conquerour who certainly was a man of a serious regard and did not onely remit sometimes his rigour in exacting where he ought not but also forbare to require that which he had some colour to demand for whereas the Daneguelt was left unto him in the nature of an annuity he was contented to turne it into a summe in grosse and to demand it onely Cum ab exteris gentibus bella vel opiniones bellorum insurgebant Hoveden and it was then done consultis magnatibus These things thus considered might have mollified somewhat the Pennes of angry Writers and where they faile may be caution to Readers to consider occasions and dispositions of Princes and so long as Laws hold in title to construe the irregularities of Princes to be but as steps out of the path to avoyd a little dirt that a man may get home the more cleanly and therefore rightly can derive no other title of absolute soveraignty to their successors then to hold by infirmity And thus the Government under the Normans at the worst was but like that of childhood following sudden and present desires not wise enough to plot for absolute Monarchy nor to keepe off a polity which still rooted underneath though the fruit while it was now green was harsh and unpleasant I shall conclude this Norman discourse with this advertisment that notwithstanding the words Conquerour and Conquest have often faln from my Pen and hereafter may doe the like yet can I see no reason why divers succeeding Kings comming to the Crown by argument of the Sword and not by right of descent may not deserve the Laurell as well as the first Norman King onely because fame hath fancied him that Title under a kind of prescription I do the like CHAP. LVII Of the Government during the Reignes of Steven Henry the 2. Richard the 1. and John And first of their Titles to the Crown and disposition in government I Have cut out this portion of one hundred twenty and five yeeres containing the reignes of these Kings apart from their successors in regard of their titles all of them being under one generall climate and breathing one ayre of election and compact between them and the people Now was the issue male of the stocke of Normandy quite wasted I meane in relation to succession by inheritance for although it was the lot of Henry the first to have many children yet it was not his happinesse to have many lineal nor to hold what he had nor of them all was there left above one that might pretend to the Crown and it a daughter who was the great Grandmother to all the succeeding Kings till this day Onely King Steven Steven like an unruly ghost comming in upon the Stage troubled the play during his time This daughter of Henry the first was married to the Emperour Henry the fourth and surviving him was in her fathers life time acknowledged to be his heire the Sea having formerly swallowed up the remainder of his hope unto her the Lords sware fealty as to the next successor in the Throne after the decease of her father being led thereto by the instigation of her father whose conscience told him that the Title to the Crown by inheritance was weakned by his own president himselfe comming to the same by election of the people contrary to the title of his brother Robert Neverthelesse this was not the first time that the English Crown refused to be worne by practice for Henry the first being dead Steven the younger sonne to a younger sister of Henry the first put up head who being of the Royall stemme a man and a brave Souldier by the ancient course of the Saxons had title enough to be thought upon in a doubtfull succession Besides he was a rich man and had enough to raise up his thoughts to high undertakings and a Brother a Bishop and Legate to the Pops here in England one who was of a high spirit and vast power advantages enough to have quickned a much duller spirit then his was who was the sonne of a daughter to William the Conquerour and to make him yet more bold he had the upper
the Conquest and during the reigne of these severall Kings UNder the title of the Nobility of England I shall comprehend all such as are of the greatest eminency for birth or wisdome and learning and advancement into place of government and honour These were in the Saxons times the flower of the people flourishing onely from the honour that ascended from beneath their deportment then was full of cheere and safety to the people after that royalty sprung up the influence thereof upon them exhaled such a reciprocall interest backe againe as made them lesse regardfull of their own roote Whereas we see the more mature flowers are the more propence to turne head and looke downward to their own originall This distemper was yet much worse by the comming in of the Normans whose Nobility besides their titles of honour in their own Country obtained by custome such command and power amongst the meaner sort being souldiers under them in time of the service in the field that when the warres had breathed out their last neither of them could forget or were very carefull to lay aside This was observed by Kings and advantage espied to clime to the top of Monarchy by the helpe of these great men whom if they could make their own all would be theirs and wherein they had prevailed much more then they did if they had been wise enough to have maintained them in unity but in that failing Kings were necessitated to take parties and serve the Nobility to save the maine and thus continued they a considerable party in the gouernment of this kingdome from the Normans for the space of two hundred yeeres well nigh to the prejudice both of the growth of the prerogative of Kings and liberties of the Commons and benefit of none but the Lords who in those unquiet times were the chiefe Commanders in the field This errour of Kings was soon espied but could not be avoyded its naturall to man to be proud and to such to fall into contention another course therefore is taken viz. to raise up some so high as may overtop all and keep them under nor is it altogether without reason for Kings are no ubiquitaries and some must beare their power where they cannot be personally present yet it is dangerous to bestow too much upon one man for there is no man fitting to be a King but himselfe that is a King and where kings are immoderate in bestowing power it many times workes much woe to the people and not seldome sorrow to the Kings themselves The place of the chiefe Justice was in shew but one Office yet in these times was in nature of the Kings Lieutenant-generall throughout the kingdome A power and worke too great for any one man in the world that can make no deputies to mannage it Hoveden 443 375. Nubr lib. 4. cap. 14. and yet in those times you shall meet with one man made up of an Archbishop a Legate and chiefe Justice of England or a Bishop a Lord Chancellor a Legate and chiefe Justice of England and a strange kind of government must that needs be wherein the servants Throne is above his masters and a subject shall have a plenitudinary power beyond that which his Lord and King was as the times then were was capable of By these and such like pluralities the great men of England kept the Commons below and themselves above and probably rendred the temper of the government of this kingdome more Aristocraticall then in after ages And if their personall authority was of such value how much rather in their joynt assembly or court of Councell concerning which I must agree that as in their originall in Germany they did consult and determine of the meaner matters that is to say of matters concerning property and therefore were in their most ordinary worke meetings of Judges or Courts of Judicature and also matters of defensive warre because themselves were the Commanders and lastly in matters of sudden concernment to the State not onely to serve as eyes to foresee but to provide also if they can or otherwise to call in the ayd of the peoples advice so also they continued this course and it may be now and then as all Councels have done strained their endeavours beyond their reach especally since the Normans entrance and therefore I shall not deny but that they alone with the King and without the Commons have made many Laws and Constitutions some of which now are called Statutes although many of them in truth are no other then rules for Judicature which ordinary Courts may frame or Judgements in particular cases such as are the constitutions at Clarindon in Henry the seconds time and many other Laws which are reported to be made between the King and his Lords Nor can I looke upon such laws otherwise then as upon judgements in Courts of Justice in new points of controversie grounded upon ancient grounds which properly are not new Laws but the ancient rule applied to new particulars and being so published to the world may beare the name of Laws Ordinances Constitutions or Judgements the word Statute being of later times taken up and used in a more restrictive sence of which more in their due place Now that this Court was a setled Court of judicature Hoveden An. 1175. and so used may appeare in that fines were leavied therein and Writs of right determined as in that great case between the two Kings of Navarr and Castile Ibid. referred to the judgement of Henry the second and tried in this Court it s said that the triall was by plea and if need wereby battell The Judges in this Court were the Baronage of England for the entry of judgement in that great case is thus Comites Barones Regalis Curiae Angliae adjudicaverunt c. so as though doubtlesse many were absent some being enemies others discontented others upon other occasions yet all might claime their votes as Barons The President over all the rest was the chiefe Justice or if the King were present then himselfe and by him was the sentence or judgement declared according to the entry in the case aforesaid Habito Concilio cum Episcopis Comitibus Baronibus adjudicavimus c. The honour of this Court was great so long as the Lords had liberty or care to attend thereon but when Kings began to have private interests they would have these to be more private Councels which weakned the esteem of conclusions that there passed and reduced the honour thereof scarce to the degree of a Conventicle and by this means the necessity of calling together the whole body representative was made more frequent the power of the Nobility of England decayed and this Court forfeited all its juridicall power to the three Courts at Westminster viz. the Kings bench Common pleas and Exchequer saving still the supreame judicature unto the grand Convention of Estates in Parliament where all the Lords had liberty of meeting and free
lost man had lesse care of such smaller matters and therefore allowed that his Judges of Assizes should be licenced by the Archbishop to administer oathes in their circuits in the sacred times of Advent and Septuagessima Antiq. Brit. Eccles 209. and this course continued till Henry the eights time The Clergy having thus gotten the bridle gallop amaine they now call whom they will and put them to their oathes to accuse other men or themselves or else they are excommunicated Henry the third withstood this course if the Clergy mens complaints in the times of that King Artic. 9. be true and notwithstanding the same the law holds its course and in pursuance thereof we finde an attachment upon a prohibition in this forme ensuing Put the Bishop of N. to his pledges that he be before our Justices to shew cause why he made to be summoned Regist fo 36. and by Ecclesiasticall censures constrained Lay persons men or women to appeare before him to sweare unwillingly at the Bishops pleasure to the great prejudice of our Crown and dignity and contrary to the custome of the Kingdome of England And thus both King and Clergy were at contest for this power over the peoples consciences to which neither had the right otherwise then by rules of law Bigamists shall not be allowed their Clergie Stat. Bigam 4 Edw. 1. cap. 5 whether they become such before the Councell of Lions or since and that Constitution there made shall be so construed Whatsoever therefore their Synods in those times pretended against the married Clergy seemeth by this law that they had Clergy that were married once and againe and yet before and after the Councell were admitted as Clerks in the judgement of the Law But the Generall councell interposes their authority and deprives them that are the second time married of all their priviledges of Clergy It was it seemeth twenty yeeres and more after that Councell before the Church-men in England were throughly reformed for either some were still Bigami at the making of this law or as touching that point it was vaine nor is it easie to conceive what occasion should after so long a time move such exposition the words of the Constitution being Bigamos omni privilegio clericali declaramus esse nudatos Now whither this slow reformation arose from the defect in law or in obedience thereto may be gathered from some particulars ensuing First it is apparent that the canons of Generall councels Generall councels eo nomine had formerly of ancient times gotten a kind of praeeminence in this Nation but by what meanes is not so cleare In the Saxon times they were of no further force then the Great councell of this Kingdome allowed by expresse act For the Nicene faith and the first five Generall councels were received by Synodicall constitutions of this Kingdome made in the joynt meeting both of the Laity and Clergy and during such joynt consulting the summons to the Generall councels was sent to the King to send Bishops Abbats c. but after that the Laity were excluded by the Clergy from their meetings and the King himselfe also served in the same manner the summons to the Generall councell issued forth to the Bishops immediately and in particular to each of them and to the Abbats and Priors in generall Bineus tom 13 Ps 2. pag. 674. M. Paris by vertue whereof they went inconsulto Rege and sometime Rege renitente and appeared either personally or by proxy Others came as parties to give and receive direction or heare sentence in matters tending to spirituall regards and for this cause issued summons sometimes even to Kings as at the councell of Lions aforesaid it s said that the Pope had cited Reges terrae alios mundi principes dictum principem meaning Henry the third M. Paris An. 1245. the matter was for assistance to the holy warre and to determine the matter Henry the third and his Clergy men And as in that case so in others of that kind Kings would send their Embassadours or Procters and give them power in their Princes name interessendi tractandi communicandi concludendi First of such matters quae ad reformationem Ecclesiae universalis in capite membris then of such as concerne fidei orthodoxae fulciamentum Bineus Tom. 3. Ps. 2. pag. 913. Tom. 4. Ps. 1 pag. 14. Regumque ae principum pacificationem or any other particul r cause which occasionally might be incerted so long then as Kings had their votes in the Generall councels they were ingaged in the maintenance of their decrees and by this meanes entred the Canon law into Kingdomes Nor was the vote of Kings difficult to be obtained especially in matters that trenched not upon the Crown for the Pope knowing well that Kings were too wise to adventure their own persons into forraine parts where the Generall councels were holden and that it was thrift for them to send such proctors that might not altogether spend upon the Kings purse allowed Bishops and Clergymen to be Proctors for their Princes that in the negative they might be pii inimici and lesse active but in the affirmative zealous and so make the way wider by the Temporall and Spirituall vote joyned in one Neither did Kings onely save their purse but they also made their own further advantage hereby for by the ingagement and respect which these his proctors had in councels they being for the most part such as were had in best esteem obtained better respect to the cause that they handled and speedier dispatch Neverthelesse the case sometimes was such as could not expect favour and then as the Kings temper was they would sometimes ride it out with full saile and to that end would either joyn with their Ecclesiasticall Proctors some of the Barrons and great men of their Realme to adde to the cry and make their affaires ring louder in the eares of fame although the Pope had the greater vote or otherwise would send an inhibition unto their Proctors and their assistants or an injunction to looke to the rights of the Crown as Henry the third did at the councell at Lions and this sounded in nature of a protest Foxe Mart. Ps. 2. 263. and within the Realm of England had the force of a proviso or saving But if the worst of all came to passe viz. that the councell passed the cause against Kings without any inhibition or injunction yet could it not bind the law of the Land or Kings just prerogatives no not in these times of Romes hower and of the power of darknesse For at a Synod holden by Archbishop Peckam An. 1280. the acts of the Councell of Lions was ratified and amongst others a Canon against non residency and pluralities and yet neither Councell nor Synod could prevaile for in Edward the seconds time an Abbat presenting to a Church vacant as was supposed by the Canon of pluralities the King whose
we finde that Henry the third about the latter part of his reigne when his government grew towards the dregs he having in the Kingdome two hundred and fifty Baronies he summoned unto one of these Parliamentary meetings Gloss tit Baron but five and twenty Barons and one hundred and fifty of his Clergy Neverthelesse the law of King John was still the same and we cannot rightly read the law in such presidents as are rather the birth of will then reason Fourthly that no ayds were then granted but such as passed under the title Escuage or according there unto for the words are No Escuage shall be demanded or granted or taken but for redeeming the Kings person Knighting of his sonne or marriage of his daughter Nor is the way of assessing in these times different saving that instead of all the knights two onely are now chosen in every County the tenure as it seemeth first giving the title of that order and both tenure and order now changed into that title taken up for the time and occasion Fifthly that it was then the ancient custome and so used in the time of Henry the first that the advice of those then present was the advice of the whole and that their advice passed for a law without contradiction or notwithstanding the Kings negative voice for the words are The matter at that day shall proceed according to the councell of those that shall be present although all doe not come and therefore that clause in the Kings oath quas vulgus eligerit may well be understood in the future and not in the pretertence Last of all though not gathered from the text of this law whereof we treat yet being coincident with the matter it is observable that though the Clergy were now in their ruffle and felt themselves in their full strength yet there befell a posture of state that discovered to the world that the English held not the interest of the Clergy to be of such publique concernment or necessary concurrence in the government of the Kingdome Walsing An. 1297. as was pretended For the Clergy finding assessements of the Laity so heavy and that occasions of publique charge were like to multiply daily they therefore to save the maine stocke procured an inhibition from Rome against all such impositions from the Laity and against such payments by the Clergy and in the strength of this they absolutely refused to submit to ayd Edward the first by any such way although all the Parliament had thereunto consented And thus having divided themselves from the Parliament they were by them devided from it and not onely outed of all priviledge of Parliament but of all the priviledge of subjects into the state of praemuniri and thus set them up for a monument to future times for them also to act without the consent of those men as occasion should offer But Henry 3d. not satisfied with this ancient and ordinary way of assessement upon ordinary occasions tooke up that extraordinary course of assessement upon all the free men of the Kingdome which was formerly taken up onely in that extraordinary occasion of redeeming of the Kings or Lords person out of captivity and common defence of the land from piracy and under the title of Daneguelt which was now absolutly dead and hanged up in chains as a monument of oppression Neverthelesse it cannot be denied but that in former times the free men were as deeply taxed if not oppressed with payments to their Lords at such times as they were charged over to the King in the cases aforesaid as by the latter words of the law aforesaid of King John doth appeare and whereby its probable that the inferiour Lords were gainers The conclusion of the Charter of Henry the third the fame suiting also with the third observation foregoing doth not a little favour the same for its expresly set down that in lieu of the Kings confirmation of the Charter of liberties aforesaid not onely the Archbishops Bishops Abbots Priors Earles Barons and Knights but also the free men and all the Kingdome gave a fifteenth of all their moveables And thus have I summed up and compared both the copies of the grand Charters of Englands liberties saving two particulars inserted into the Forest laws of Henry the third wherein if any thing had been new and unreasonable King John might have colour to except against them as extorted by force and Henry the third might as he was advised plead nonage M. Paris An. 1227. and so they might have been choked in their birth but being all consuetudines as in the conclusion they are called and Kings ashamed to depend upon such frivolous exceptions it may be wondred what might move them to adventure so much bloodshed and themselves into so many troubles to avoyd their own acts unlesse the writing of them were an obligation acknowledged before the world and they resolving secretly to be under none were loath to publish the same to all men It s a strange vanity in great men to pretend love to justice and yet not indure to be bound thereto when as we see that God himselfe loves to be bound by his word and to have it pleaded because he delights as much to be acknowledged true in performing as good in promising But neither was King John or Henry the third of this spirit faine they would undoe but could not It s true it was at the first but a Kings charter of confirmation and had Kings been patient therewith it might have grown no bigger but by opposition it rooted deeper and grew up unto the stature of a Statute and setled so fast as it can never be voided but by surrender from the whole body Marlbr cap. 5. Having thus summed up the liberties of the subjects and free men of England under this Charter I shall make some appendix hereunto by annexing a few additionals in these times established and although they come not within the letter of the Grand charter yet are they subservient thereunto And first concerning the King and this either as he is King or as he is Lord. As King he had these prerogatives above all Lords Prerog Reg. cap. 9. The King shall have the custody of fooles and ideots lands for their maintenance and shall render the same to their heires And concerning mad-men and lunaticks cap. 10. the King shall provide a Baylisse for their maintenance rendring account to them when they are sober or to their administrators It is no lesse liberty or priviledge of the people that fooles and mad persons are to be ordered by tutors then children and therefore this may be annexed to the rest of the liberties as well as the other Neverthelesse it seemeth that the Laws tooke them into their regard in respect of their estates which might be abused to the prejudice of the publique rather then out of respect had to their persons Now because there is a difference between the disability
Saxon p. 68 Norman p. 133 Hundred Setena Saxon p. 68 I IDolatry punished by the Saxons p. 97 Normans p. 138 Vide Blasphemy Imprisonment Saxon p. 100 Norman p. 151 Incest punished by the Saxons p. 101 Indictment Saxon law p. 85 Infancy amongst the Saxons p. 88 After p. 198 Infangtheoff Saxon p. 74 Inheritance Saxons p. 102 Normans p. 160 After p. 196 c. Inquest Saxon p. 91 Interdict in the Saxon time p. 38 After p. 182 Intent punished by the Normans p. 151 Intestate Saxon law p. 109 Norman p. 143 Afterward 232 c. 264 c. John p. 170 Judgement vide execution Judges vide Justice Judicatory 189 c. Jury grand petit amongst the Saxons p. 91 Justice and their Courts amongst the Saxons p. 84 Chiefe Justice p. 191 Judges or Justices itinerant after the Normans p. 192 199 284 K KIngs amongst the Saxons election continuance covenant maintenance power in Church-matters p. 46 c. 56 Amongst the Normans election 113 c. Covenant 116. c. Power in Church matters p. p. 123 c. In the times of Steven Henry the second Richard the first and John Election p. 165 Power in Church matters p. 176 c. In the times of Henry the third Edward the first and Edward the second Succession p. 208 c. Power in Ecclesiasticall matters p. 225 c. 233 In Civill affaires 277 c. 317 c. Knightservice amongst the Saxons p. 76 Marriage p. 146 202 255 Acquittall p. 149 Widdows p. 256 L LAnguage endeavoured to be changed by the Normans p. 161 Lashlight amongst the Saxons p. 99 Lecturers amongst the Saxons p. 28 Leet amongst the Saxons p. 78 Legierwit amongst the Saxons p. 100 Livery and seisin amongst the Saxons p. 108 London p. 257 Lords-day maintained by the Saxons p. 98 By the Normans as plea of the Crown p. 139 Lords their councels amongst the Saxons p. 62 84 From the Conquerours time till Henry the third p. 174 Lorica what it is p. 309 Lucius p. 9 c. Luminaries amongst the Saxons p. 31 Lunacy vide fooles M MAgna carta p. 172 Renewed with the curse p. 210 Stat. c. p. 253 Cap. 35. p. 244 Cap. 37. p. 245 Mainpernours by the Saxons p. 85 87 By the Normans p. 151 Maimes punished by the Saxons p. 100 Manbota amongst the Saxons p. 99 Mannors amongst the Saxons p. 75 Normans p. 134 Manslaughter punished by the Saxons p. 99 Normans p. 140 After p. 195 Manumission p. 137 Marriage portion vide Dower Marriage vide Knightservice Marchants Magna carta p. 272 Marches amongst the Saxons p. 72 Normans p. 131 Markets amongst the Saxons p. 80 Normans p. 143 Vide Townships Marshals Court p. 285 Matrimoniall causes amongst the Saxons p. 41 Medietas linguae amongst the Saxons p. 92 Metropolitan amongst the Saxons p. 23 Micklemote amongst the Saxons p. 57 The Primacy of Canterbury setled there p. 36 Mils tithed p. 240 Militia amongst the Saxons p. 63 The Normans p. 152 During the Kings next ensuing p. 205 During Henry 3. Edward 1. Edward 2 p. 294 Mint amongst the Saxons Normans p. 137 Monastry admission p. 183 Mortdancester p. 198 261 Mortmaine p. 245 Mortuary amongst the Saxons p. 32 N NEwes scandalous p. 292 Nightwatches by the Normans p. 141 After p. 304 Nobility amongst the Saxons p. 53 From the Normans time p. 172 From King Johns time p. 221 Normans their title c. p. 113 c. Not conquest p. 155 Novell disseisin p. 199 261 O OBlations cognisance p. 235 Odio Atia p. 269 c. Officers power greater then kings p. 173 Ordeale amongst the Saxons p. 89 Ordinaries intestate p. 232 Outfangtheoff amongst the Saxons p. 74 Ostiaries amongst the Saxons p. 28 Othes p. 246 271 P PAlatine county amongst the Saxons p. 73 Parishes amongst the Saxons p. 35 Parliaments p. 120 278 Parks trespasses p. 292 Passage p. 272 Peace amongst the Saxons p. 100 The Normans p. 140 After p. 300 Penall Laws Saxons p. 96 Normans p. 138 After in the time of Henry 2. p. 193 After p. 286 Perjury punished by the Saxons p. 40 101 Peeres amongst the Saxons p. 93 Peterpence amongst the Saxons p. 32 The Normans p. 139 Pledges p. 150 Plough almes Saxons p. 32 Popes power p. 19 177 184 Oppressions of the Clergie p. 225 Prelacy in England not till Constantines time 11. came from Rome by Austin p. 21 c. Suddenly grown p. 44 Praecipe Mag. carta p. 268 Priors vide Abbats Presbyters amongst the Saxons p. 27 Presentment amongst the Saxons p. 86 Priority vide Tenure Prohibitions p. 228 233 Protectour p. 209 Provinces amongst the Saxons p. 35 Purveyance p. 244 265 c. Q QUare Clausum fregit Saxon p. 101 Quare excommunicavit p. 227 Quare non admisit ibid. Quarentine p. 256 282 Quo warranto p. 244 R RAnsome p. 94 260 Rape Norman p. 141 After p. 195 c. 288 Reasonable part 257 264 Vide Dower Redemption vide Ransome Redesseisin p. 292 Reliefe Norman p. 145 After p. 201 Religious houses vide Abbeys Replevy Norman p 142 259 Richard the first p. 169 Romans entry p. 5 The Papalty with seven degrees of their Church Officers p. 29 Seven sorts of Church maintenance p. 35 Romescot Romesfeogh vide Heardpenny Robbery punished by Saxons p. 101 By Normans p. 142 After p. 193 195 287 304 S SAbbath day Saxon law p. 98 Sacriledge Saxon law p. 41 Sanctuary p. 139 183 242 Saxons in England mingled p. 90 Seale vide Deeds p. 107 Sheriffs Saxon p. 65 Extortion p. 275 286 Symony punished by the Saxons p. 41 Sorcery vide Witchery Soulshot Saxon p 32 Socage Saxon p. 77 Steven his government p. 165 Stat. Magna carta vide Magna carta Merton cap. 1 2 6 7 p. 156 Cap. 1. p. 282 Cap. 3. p. 292 Cap. 9. p. 252 Cap. 10. p. 275 Cap. 11. p. 295 Marlbridge cap. 1 2 3. p. 259 Cap. 4. ibid. Cap. 5. p. 280 Cap. 8. p. 292 Cap. 9. p. 264 Cap. 10. p. 229 275 Cap. 15. p. 259 Cap. 16. p. 254 Cap. 17. p. 282 Cap. 19. p. 262 Cap. 20. p. 261 Cap. 21. p. 259 Cap. 22. p. 260 Cap. 25. p. 287 302 Cap. 29. p. 229 Westm 1. cap. 1 2 5. p. 231 c. Cap. 3. p. 289 302 Cap. 4. p. 281 Cap. 6. p. 263 Cap. 9. p. 289 Cap. 10. p. 286 Cap. 11. p. 270 Cap. 12. p. 289 Cap. 13. p 288 Cap. 14. p. 275 Cap. 15. p. 290 Cap. 16. p. 260 Cap. 20. p. 292 Cap. 22. p. 256 Cap. 23. p. 286 Cap. 32. p. 266 Cap. 33. p. 275 Cap. 34. p. 292 Cap. 36. p. 285 Cap. 51 p. 261 Bigami p. 247 c. Glocest cap. 1. p. 262 Cap. 5. p. 255 Cap. 6. p. 261 Cap. 8. p. 285 302 Cap. 9. p. 270 De Religiosis p. 245 Westm 2. cap. 13. p. 275 Cap. 16. p. 256 Cap. 19. p. 232 Cap. 24. p. 285 Cap. 26. p. 292 Cap. 29. p. 270 285 Cap. 30. p. 262 Cap. 33. p. 245 Cap. 34. p. 288 Winton p. 302 c. Circumspecte agatis p. 233 c. Quia emptores p. 274 De Judaismo p. 273 Quo warranto p. 244 De vasto p. 255 De consultatione habenda p. 238 De wardis p. 254 Artic. super Cart. cap. 2. p. 266 Cap 3. p. 285 Cap. 9. p. 286 Cap. 12. p. 260 Cap. 13 14. p. 276 Cap. 15. p. 285 Cap. 18. p. 255 Conjunct feoffat p. 262 Amortizand terris p. 246 Asportat bonis Relig. p. 244 De militibus p. 294 Artic. cleri p. 219 238 Vicecomit p. 219 276 286 De priscis bonis cleri p. 219 244 Prerog reg p. 220 Cap. 3 13. p. 254 Cap. 7. p. 274 Cap. 9. p. 280 Cap. 11. p. 281 Cap. 14 16. p. 268 Subdeacons p. 28 Suite of Court p. 202 Vide Mannor Synods Briton p. 11 Saxon p. 37 Disadvantageous to Prelacy p. 45 Norman p. 127 Without the Laity p. 187 Power p. 248 c. T TAile Saxon law p. 105 Taxes p. 278 Vide Free men Tenures vide Mannor Normans changed them not p. 161 Tenures by severall Lords priority p. 200 By Escheats p 273 Terme Saxon p. 110 Testament Saxon p. 108 After p. 202 c. Thefts cognisance p. 193 195 Tithes originall p. 30 Cognisance p. 43 Normans p. 139 778 238 240 Torne Saxon p. 67 275 Torture amongst the Saxons p. 88 Townships and their Courts Saxon p. 81 Normans p. 134 Treason punished by Saxons p. 98 After p. 194 Trover of goods p. 143 Trotheplight p. 179 V VAcancies of Churches p. 179 c. 185 Vacation vide Terme View of piedges Saxon p. 78 Norman p. 134 After p. 263 275 Villains Saxon p. 56 Normans p. 137 Violence done to Clerks p. 235 Use in deeds of conveyance Saxon p. 107 Usury p. 273 W WArdship p. 148 202 254 270 Warranty Saxon p. 107 Weares p. 268 Wera wergilda Saxon p. 99 Weights and measures Saxons p. 28 Normans p. 142 269 Widdows vide Socage and Knightservice William the first p. 113 c. William Rufus p. 118 Wife Saxon p. 98 Will vide Testament Witnesses deeds Saxon p. 108 Witchery p. 40 Punished by Saxons p. 97 Wita Saxon p. 99 Worship Saxon cognisance p. 39 Wrecks p. 281 FINIS
Saxons were not so zealous of their new Religion as to make a new Nationall quarrell between the Britons and themselves but left the game to be played out by Austen who finding by experience that it would not prove the worke of one man left it to successors to worke out by degrees in efflux of time And thus Austen neither good servant to the Servant of Servants nor good Monke retires to settle his Saxon province and to present or rather to prostitute it to the lusts of that red whore which was the generall piety of those ignorant times CHAP. VI. Of the imbodying of Prelacy into the government of this Kingdome I Cannot think that the platforme of the mystery of iniquity when boyled to the hight was ever foreseen or in the aime of the wicked spirits on earth or those in hell yet were they all instruments of this monstrous birth filled with subtilty and mischiefe guided principally by occasion and over-ruled by the Justice and Wisdome of God to make a yoke for Monarchs and a scourge to the world for their refusall of the government of Christ untill this monster came to perfection and wherein themselves were feloes de se and wrought their owne mischiefe for Austen comming in as a third proprietor with King and people and having gathered the materials of a Church reason told them that a forme of government must be setled in that Church the Saxons had no principles of their own Tacit. mor. Serm. for they had no learning and to goe to the Britons for a patterne might be thought ignoble and where the choice is small it s soone made Rome held now the most part of the Churches of Europe at Schoole the Saxons soon resolve Rome that had been their mother shall be also their father and thus at one draught they dranke up a potion of the whole Hierarchy of Rome from the Pope to the apparator with a quicquid imponitur imponetur which was of such lasting efficacy that it ceaseth not to worke even to this day although it was slow in the first provocation For the Saxons had a Common-weale founded in the liberty of the people and it was a master-piece for Austen and the Clergy so to worke as to remaine members of this Commonweale and yet retaine their hearts for Rome which was now grown almost to the pitch of that Antichrist for reason must needs tell them that the Saxon principles would not suffer them to be ad omnia for Rome nor the Roman Canon allow them to be wholy Saxon and they saw plainly that the times were too tender to endure them to be declarative on either part and therefore they chose a third way which was to preserve the municipall Lawes in moderation towards the Canon and to that end to endeavour such a temper upon the State as must admit them to be in repute such as without whom the Common-weale could not well subsist no more then a body without a soule and that few occasions should befall but at least in ordine remoto must reflect upon both and then all reason will be speake them to joyne in the legislative power and government of this Kingdome but especially as Bishops who are now Magnae spes altera Romae and the very top-flowers of wisdome and learning And unto this temper the Saxons were sufficiently prepared and inclinable for it was no new thing for them to admit their heathenish Priests into their generall meetings and allow them much power therein and then it s but the person changed and they must doe as much for their Bishops now they are become Christian especially themselves being all for the field and overgrown with a generall ignorance the common disease of those times Kings were in no beteer condition it was hard for them to be baptised and not to be baptised into Rome and commonly under such a Covenant as though many might repent of yet none durst amend for when as the Pope is Lord of the consciences of the People the Kings power may sometimes outface but can never govern the Saxon Kings were therefore faine to make a vertue of necessity and advance Bishops to be common favorites both of Rome and themselves to maintaine good correspondency between both Swords and to countenance the power of the temporall Magistrate in cases of dispute else he might oftentimes command and yet goe without Thus enter the Prelates upon affaires of Kings and Kingdomes and became lovers of Lordships and troublers of States and if in any thing they served their Countrey they served Rome much more their merchandise was made of the policies and Councels of all Kingdomes and States and such returnes proceeded as were still subservient to the Roman interest and they so intoxicated the domestique counsels in such manner as they generally staggered and many times came short of home Neverthelesse at the first this was but rare clancular and covered with much modesty for excepting such choice spirits as Austen had Roman Prelacy in these yonger times was but Velvet-headed and endured not much greatnesse or bigge titles but spake like a Lambe Ego non verbis quaero prosperari sed moribus said this Gregory to the Alexandrian Bishop who had put upon him the title of universall Bishop or Pope Greg. Epist ad Eulog and whereas he had in a way of Courtship called Gregories counsels commands he startles at it quod verbum jussionis saith he peto a meo auditu removere quia scio quis sum qui estis Thus Prelacy first conveyed it selfe into opinion afterwards into conscience and ambition comming in the reare made it become both Bishop and Lord. CHAP. VII Of Metropolitans in the Saxons time BEing in pursuit of the government of this Kingdome in elder times and therein first of the persons with their relation then of their worke and lastly of their Courts and Lawes and now in hand with the Ecclesiasticall persons I shall descend to their particular ranks or degrees and shall shew what they were in their originall and what overplus they had by Lawes And first concerning the Metropolitan In his originall his Office was to visite the Bishops admonish and exhort them and in full Synod to correct such disorders as the Bishop could not reforme and in all things to proceed according to the prescript Canon Concil Brit. p. 258. Thus witnesseth Boniface an Archbishop to an Archbishop of an Archbishop not according to the practise of the times wherein it was written but according to the ancient rule For long before Boniface his time Archbishops were swolne beyond the girt of the Canon An. 745. and before that England was honoured with that ranke of men Metropolitans were become Metronomians and above all rule but that of their owne will and through common custome had no regard to any other so as if England will have them it must be content to have them with their faults But the truth is the
dignity or title which you will was a plant of that virulent nature that would scarce keepe under-ground in the time of the hottest persecution for Steven Bishop of Rome liked the title of universall Bishop Mag. cent 3. cap. 7. And after a little peace it s a wonder how it grew to that height that it had And no lesse wonderfull that the Saxons gave intertainment to such potentates Much of whose spirit they might have observed in the entrance of their first Archbishop Austen if God had not given them over to thraldome under that mystery of iniquity of sinfull man aspiring into the place of God taught by that Courtly messenger of Rome because they would not stoop to that mystery of godlinesse God manifested in the flesh as it was taught in simplicity by the rurall Picts and Britons But this was not all for because Archbishops were gotten above Canon which was thought scandalous therefore they gave as large a power by Canon as the former usurpation amounted unto and so stretched the Canon to the mind of the man whenas they should have rather reduced the man to the Canon The words of the Canon in our English tongue runne thus It belongs to the Metropolitan Bishop to rule Gods Churches to governe chuse appoint confirme and remove Abbots Abbotesses Presbyters and Deacons and herewith the King hath nothing to doe And thus though the apparent power of Archbishops was great and unlimited Concil Brit. p. 190. yet what more was wrapped up in that word Churches onely time must declare for it s very likely that in those daies it was not understood yet the practise doth not obscurely declare the matter for before this Law was established by Withered in a Councell wherein Bertnaldus Archbishop of Canterbury was president An. 694. Ant. Brit. p. 55. and who was first Primate of England Theodore Archbishop of Canterbury used such power over other Bishops in ordaining and removing them as a writer saith Malmsb. lib. 1. cap. 2. Ant. Brit. p. 54. that his rule was no other then perturbatio and impetus animi and his carriage towards Wilfrid produced as a testimony But the Metropolitan in England as the times then were had yet a further advantage even over Kings themselves for there were divers Kingdomes in this Island and Kings had no further power then their limits afforded them but there was but one Metropolitan for a long time in all the Saxon territories so as his power was in spirituals over many kingdomes and so he became indeed alterius orbis Papa and it was a remarkable testimony of Gods speciall providence that the spirits of these petty Popes should be so bound up under the notion of the infallibility of the Roman chaire that they had not torne the European Church into as many Popedomes as Provinces But no doubt God ordered it for a scourge to the world that Antichrist should be but one that he might be the more absolute tyrant and that Kings should bow down their necks under the double or rather multiple yoke of Pope and Archbishops for their rebellion against the King of Kings CHAP. VIII Of the Saxon Bishops HAd not Bishops been somewhat sutable the Roman Clergy had not been like it selfe and it had been contrary to Austins principles to have advanced to Bishopricks men better qualified then himselfe They first ruled the Saxon Church joyntly in the nature of a Presbytery till about sixty yeeres after Austins time their pride would not endure together any longer and it may be grew somewhat untractable under the Metropolitan that resolved to be prouder then all and thereupon Theodore Archbishop of Canterbury first divided his Province into five Diocesses Ant. Brit. 52. Concil Brit. 133. Ant. Brit. 54 Ibid. 53. and by appointment of them Kings and people placed Bishops over each every one of them being of the right Roman stampe as himselfe was of the right Roman shaving And it had been a wonder if Episcopacy now for the space of three hundred yeeres degenerated and that into such a monstrous shape as a Pope should by transplanting become regenerate into their originall condition of meeknesse and humility But it s much greater wonder that they should become so purely ambicious as not to endure a thought of the waies of sobriety but would be proud by Law to let all the world know that they held it no infirmity but an honour For albeit that in the first time the Bishops work was to instruct and teach to see the service of God to be diligently and purely administred in publique congregations Concil Brit. 238 246 261. to exhort reprove and by teaching to amend such matters as he should finde in life and doctrine contrary to Religion and accordingly they carried themselves meekly and humbly Mag. Cent. 7. cap. 7. studying peace and truth and meddled not with secular affaires they are now grown up into state and must now ride on horse-backe that were wont to goe on foot preaching the Word Bed hist lib. 4. cap. 3. and must be respected above the ranke of ordinary Presbytery none must doubt of their truth nor question their words but they must be holden sacred as the word of a King Concil Brit. 196. An. 697. sine juramento sit irrefragabile Their presence must be a Sanctuary against all violence all Clerkes and religious houses must stoop under their power Ibid. 329. An. 816. their sentence must be definitive and thus advanced they must keep state viz. not go too farre to meet Princes in their approach towards them nor to light off their horses backs to doe Princes reverence at their meeting because they are equall to Princes and Emperours Concil 8. gen constant can 14. and if any Bishop shall behave himselfe otherwise and after the old rusticall fashion for such are the words of the Canon for disgrace done to theitr dignity they must be suspended so as by their own confession Bishops henceforth are Bishops of a new fashion that must incurre a note of infamy for shewing any gesture of humility to Princes which if any man will see more fully ler him peruse the Canon if he please But this is not sublime enough they must be not onely equall but in many respects superiour to Princes for in matters that concerne God Omnibus dignitatibus praesunt and more plainly Princes must obey them Mag. cent 8. cap. 9. Ex corde cum magna humilitate and this was allowed of by Offa the great in a legatine Synod And thus highly advanced Bishops are now consecrated to any worke and make every thing sacred Concil Brit. 182. An. 693. Ll. Sax. cap. 37. Oathes taken before them are of highest moment and therefore the triall of crimes before them and the acknowledgement of deeds of conveyance in their presence are without controll An. 928. Ll. Aethelst cap. 11. Concil Brit. Concil Brit. p. 197. An. 697. Their custody is