age being loaden with military affaires wherein he had been long exercised he had contracted some shifting courses of a souldier in gathering money and souldiers somewhat out of the rode way of an English King Hoveden 348. and led an ill example to future ages nor had he other salve for this wound but that it was for the honour of Christian faith and for the sake of Jerusalem Next comes in Richard the first Richard the first Henry the seconds sonne both in birth and courage yet was his behaviour to his father such that his meritorious holy warre could never wipe it out of the Callender of story His entrance was upon an election made in his fathers life time and the same confirmed by receiving of homage from the Peeres M. Paris The sad troubles that this election amongst other things occasioned to his father in his old age show plainly that Richard trusted not to the title of inheritance nor the French King that tooke his part unto the English custome for the possession of the Crown but all must be done in the life of the father that must secure the government to the sonne when the father is dead and thus is he entred upon the Throne not as heire but as successor to his father yea rather as survivor taking possession of what was by speciall compact conveyed to him by the means of his father in his lifetime though sore against his will if writers speake true As his entrance was it promised a better government then followed for though it was for the most part hidden in the wombe as himselfe did subsist in an other world yet by a secret providence he was given over to the election of ill deputies and therefore he was not welbeloved however deere he was to this Nation A third part of his government was spent in a calm with Pope Clergy Commons and all Nations that were not Infidels upon conscience it seems that he ought not to be troubled who adventured his person so bravely in the holy warre But above all he was the Clergies darling not onely for his adventure in the holy Land but now much more in his returne by his imprisonment in Germany and therefore they stucke close to him in his absence not onely in maintenance of his right to the Crown whereto some made claime and his own brother John did more but emptied themselves to the utmost for his delivery which they effected to the envy of the French and such as longed for his downfall here in England The King comes like the Sunne rising scattering his brothers designes by his very view then returns his thoughts for France where he spent the rest of a restlesse life and as his entry upon the Throne was unnaturall for he made his way upon his fathers Hearse so was his reigne full of troubles and his end not unlike for it was violent and by the hand of his own subject and so ended his reigne that scarce had any beginning Next comes in King John John to act his part according to his entry hand over head whether called by a people scared with the noise of succession by inheritance or such as thought it not convenient nor safe in a stirring time to have a child to be their King or lastly led by an interest that John the youngest sonne of Henry the second had by wofull experience obtained amongst the Lords or some or all concurring its cleare they crossed the way of inheritance waved Arthurs title who was heire to Richard the first and by him also appointed to succeed being then but a child and they chose John a man of warre trained up in the government of Ireland which made way for his active spirit and well seen in the government of England which might have made him wise and under these conceits were willing to forget his oppression in Ireland his treachery against his Lord and King in England set the Crown upon his head and in conclusion acted the Tragedy of Ahimelech in English wherein the Cedar was rooted up and the Bramble troden down The generall temper of his government sheweth that though the King must be thought sober yet the man was mad for he hauked at all manner of game France Scotland England Laity Clergy spared not the Pope himselfe scorned to stoop to occasion all which he did by the strength of the name of a King till at length being well cuft and plumed he was faine to yoke his lawlesse will under the grand charter depose his Crown at the Popes foot and instead of a King became little better then a chiefe Lord in England Thus although Richard the first forgot this mans disloyalty yet God remembred it for the King having gotten the Pope upon the hip and put him to his last shift to stirre up the French to set his curse on worke was by an hidden providence conquered in the middest of a Royall Army without view of enemy or other weapon then a meere noise his Nobility either suspecting all would be gone to Rome or expecting that the King would not deny them their own seeing he had been so profuse in giving away that which was not his demand that their liberties might be confirmed but he being loath to be mated by his Nobles though he was overmatched by the Pope armes himselfe with the Popes curse and the Lords themselves with the French mens power thus the tables are turned and the French playing an after-game to gain to themselves the Crown of England after they saw the death of a Warlike King discovered their designe before it was ripe and in the conclusion were beaten out of the Kingdome by a child It s not worth inquiry what the King allowed or disallowed for it was his course to repent of any thing done contrary to his present sence and made it his chiefe principle in policy to have no principle but desire wherein he triumphed too long by reason of the contentions between the Clergy and the Laity which comming nigh unto the push of the pike and the King ready for the spoile of both the Barrons and Clergy suddenly close their files and like a stone-wall stood firm to each other till the King wearied with successlesse labour was glad to give and take breath M. Paris An. 1215. confirmed the liberties of the people by his Charter which is now called the Magna charta for substance and gave such collaterall security for performance on his part as did let the world know the thing was as just as himselfe had been unjust The worst point in the case was that the people got their own by a kinde of redisseisin a desperate remedy for a desperate condition wherein the Common-weale then lay between life and death upon the racke of the will of a King that would be controlled by nothing but his own appetite and was in the end devoured by it CHAP. LVIII Of the state of the Nobility of England from
sounds as much as if the tenants were bound by their tenures to ayd their Lord in all cases of extraordinary charge saving that the Lord could not distraine his tenant for ayd to his warre and this according to the Lords discretion Ibid. for Glanvile Glanv l. 9. c. 8 saith that the law determined nothing concerning the quantity or valew of these ayds These were the Norman waies and savoured so much of Lordship that within that age they were regulated But that of reliefes was an ancient sacrifice as of first fruits of the tenement to the Lord in memoriall of the first Lords favour in conferring that tenement Ibid. and it was first setled in the Saxons time The Lords priviledge of power extended so farre as to distraine his tenants into his own Court to answer to himselfe in all causes that concerned his right and so the Lord became both Judge and party which was soon felt and prevented as shall appeare hereafter Another priviledge of the Lords power was over the tenants heire after the tenants death in the disposing of the body during the minority and marriage of the same As touching the disposing of the body the Lord either retained the same in his own power Glanv 7.10 or committed the same to others and this was done either pleno jure or rendring an account Ibid. c. 12. As concerning the marriage of the females that are heires or so apparent the parents in their life time cannot marry them without the Lords consent nor may they marry themselves after their parents death without the same and the Lords are bound to give their consent unlesse they can shew cause to the contrary The like also of the tenants widdows that have any dowry in the lands of such tenure And by such like means as these the power of the Barons grew to that height that in the lump it was too massie both for Prince and Commons 14. Of the power of the last Will. It is a received opinion that at the common law no man could devise his lands by his last will If thereby it be conceived to be against common reason I shall not touch that but if against custome of the ancient times I must suspend my concurrence therewith untill those ancient times be defined for as yet I finde no testimony sufficient to assert that opinion but rather that the times hitherto had a sacred opinion of the last will as of the most serious sincere and advised declaration of the most inward desires of a man which was the main thing looked unto in all conveyances Voluntas donatoris de cetero observetur And therefore nothing was more ordinary then for Kings in these times as much as in them did lie to dispose of their Crowns by their last Will. M. Paris An. 1216. Hoveden An. 1199. Malmsb. nov l. 1. Malmsb. l. 3. Thus King John appointed Henry the third his successor and Richard the first devised the Crown to King John and Henry the first gave all his lands to his daughter and William the Conquerour by his last will gave Normandy to Robert England to William and to Henry his mothers lands If then things of greatest moment under Heaven were ordinarily disposed by the last Will was it then probable that the smaller free holds should be of too high esteem to be credited to such conveyances I would not be mistaken as if I thought that Crowns and Empires were at the disposall of the last will of the possessour nor doe I thinke that either they were thus in this Kingdome or that there is any reason that can patronize that opinion yet it will be apparent that Kings had no sleight conceit of the last will and knew no such infirmity in that manner of conveyance as is pretended or else would they never have spent that little breath left them in vaine Glanvil l. 7. cap. 1 5. I have observed the words of Glanvile concerning this point and I cannot finde that he positively denieth all conveyance of land by Will but onely in case of disherison the ground whereof is because its contrary to the conveyance of the law and yet in that case also alloweth of a disposing power by consent of the heire which could never make good conveyance if the will in that case were absolutely voide and therefore his authority lies not in the way Nor doth the particular customes of places discountenance but rather advance this opinion for if devise of lands were incident to the tenure in Gavell kind and that so generall in old time as also to the burgage tenures Ll. Gulielm cap. 61. which were the rules of Corporation and Cities Vbi leges Angliae deperiri non possunt nec defraudari nec violari how can it be said contrary to the common law And therefore those conveyances of lands by last will that were in and after these times holden in use seem to me rather remnants of the more generall custome wasted by positive lawes then particular customes growing up against the common rule It s true that the Clergy put a power into the Pope to alter the law M. Paris An. 1181. Hoved An. 1181. Decret Alex. pap Hoveden fo 587. as touching themselves in some cases for Roger Archbishop of Yorke procured a faculty from the Pope to ordaine that no Ecclesiasticall persons Will should be good unlesse made in health and not lying in extremity and that in such cases the Archbishop should possesse himselfe of all such parties goods but as it lasted not long so was himselfe made a president in the case for being overtaken with death ere he was provided he made his will in his sicknesse and Henry the second possessed himselfe of his estate And it s as true that Femme coverts in these daies could make no will of their reasonable part Glanv l. 7. cap. 5 16. because by the Saxon law it belonged joyntly to the children Nor could usurers continuing in that course at the time of their death make their will because their personall estate belonged to the King after their death and their lands to their Lords by escheate although before death they lie open to no censure of law but this was by an especiall law made since the Conquerours time for by the Saxon law they were reputed as outlaws Neverthelesse all these doe but strengthen the generall rule Ll. Edw. 37. viz. that regularly the last will was holden in the generall a good conveyance in law If the will were onely intended and not perfected or no will was made then the lands passed by descent and the goods held course according to the Saxon law Glanv l. 7. c. 6. cap. 8. viz. the next kinsmen and friends of the intestate did administer and as administrators they might sue by Writ out of the Kings court although the Clergy had now obtained so much power as for the recovery of a legacy or for the determining
which as some thinke was made advantagiously for the Pope himselfe in point of tenure but more probably in the covenants For the Conquerour was scarce setled in his seat but the Canon law began to speak in the voyce of a Royall law Spicil 167. Fox Mart. l. 4. First complaining of mis-government as if the Church were extreamly wronged by having the same way and law of triall with the Commons of England and then propounds foure severall expedients enough to have undone the whole Common-weale in the very entrance had not the superstition of those times blinded both Parliament and people and rendered them willing with that which their successors in future ages often repented of No offence against the Bishops Laws shall be handled in the Hundred By the Saxon law Church matters had the preheminence both in the Hundred and in the County and it was the Bishops duty to joyn with the Sheriff in those Courts to direct and see to the administration of justice and yet the Canon had been above three hundred yeeres foregoing in the negative No case concerning the Regiment of soules shall be brought before the secular Judge The Regiment of soules was a common place sufficient to containe any thing that was in order thereunto and so every one that hath a soule must be no more responsall unto the temporall Judge for any matter concerning it but unto the Ecclesiasticall power and this not onely in case of scandall as against the morall law or rule of faith but for disobedience done to the Canons made afar off concerning any gesture or garbe that may come within the savour of an Ecclesiasticall conceit That all delinquents against the Bishops laws shall answer the fact in a place appointed by the Bishop to that end So as now the Bishop hath gotten a Court by the Statute law that had formerly no other Cards to shew but that of the Canon and a Court of such place as the Bishop shall appoint however inconvenient for distance or uncertainty it be That the triall of such matters shall be according to the law of the Canon and not according to that of the Hundred That is not by Jury but by witnesses in a clandestine way if the Bishop please or without any accuser or by more scrutiny or any other way that may reserve the Lay man to the breast of a prepossessed spirit of the spirituall Judge And thus the poore Countreyman is exposed to the censure of an unknown law in an unknown tongue by an unknown way wherein they had no footing but by an implicite faith And herein the providence of God I imagine was more manifest then the wisdome of man which was too weake to foresee events at so great a distance For questionlesse it was a point of excellent wisdome for the people now under a King of a rugged nature that would not sticke to catch whatsoever he could get to deposite part of their liberties into the hands of the Clergy from whom moderation might be expected as from friends and neighbours and as partners in one ship mutuall engagement to withstand the waves of prerogative of Kings that seldome rests till it breaks all banks and sometimes over-reaches its own guard and cannot return when it would And thus it fell out for many times the Pope and Clergy became protectors of the peoples liberties and kept them safe from the rage of Kings untill the time of restitution should come and became not onely a wall of defence to the one but a rock of offence to the other For the Tripple Crown could never solder with the English nor it with that the strife was for prerogative wherein if the Clergy gained the Crown lost and no moderation would be allowed For the conquering King was scarce warm in his Throne when as the Pope demanded fealty of him for the Crown of England Spicil 164 Baronus Anal. An 1068. and the Kings own good Archbishop and friend Lanfranke delivered the message as also Anselme did afterwards to William Rufus which though Kings had courage enough to deny yet it shewed plainly that the Popes meaned no lesse game then Crown-glieke with the King and people the Archbishops and Bishops holding the Cards for the Pope while in the interim he oversaw all The Norman Kings thus braved payd the Popes in their own Coyne and refused to acknowledge any Pope but such as are first allowed by their concurrance Edmer hist l. 1. p. 25. Thus have we the second bravado of the Canon Law for as yet it was not so fully entered as it seemed The words of the act of Parliament its true were generall yet their sence was left to time to expound and the course of succeeding affaires neverthelesse passed with a non obstante For whereas in those daies the Clergy claimed both legislative and executory power in Church matters the Normans would allow of neither but claimed both as of right belonging to the Imperiall power of this Island originally and onely As touching the legislative power its evident that notwithstanding the Canon that had long before this time voted the Laity from having to doe with Church matters yet the Norman Kings would never allow to the Metropolitans the power of calling Synods nor such meetings Edmer hist p. 6. 24. Spicil 163. but by their leave although it was earnestly contended for Neither could the Clergy prevaile to exclude the Laity out of their Synods being assembled nor from their wonted priviledge of voting therein albeit that for a long time by Canon it had been contradicted The differences between the Clergy and the Kings concerning these and other matters grew so hot that Kings liked not to have any Synods or meetings of publique Councell Epist ad Pascal pap and Archbishop Anselme complained that William Rufus would not allow any to be called for thirteen yeeres together which by the file of story compared with that Epistle made up the kings whole Reigne And this was questionlesse the cause that we finde so little touch upon Parliamentary assemblies in the Norman times Kings being too high to be controlled and Bishops too proud to obey But necessity of State like unto fate prevailes against all other interests whatsoever and the wisdome of Henry the first in this prevailed above that of his predecessors as farre as their will was beyond his For it was bootlesse for him to hold out against the Church that stood in need of all sorts to confirme to him that which common right as then it was taken denied him and therefore though it cost him much trouble with Anselme he recontinued the liberty of publique consultations and yet maintained his dignity and honour seemly well I shall not need to cleare this by particulars for besides the publique consultations at his entrance and twice after that for supply or ayd for his warres and the marriage of his daughter with the Emperour it s observed that the Archbishop of Canterbury
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
had entered into him and animated him in all his waies He brought in with him the first president of conscience in poynt of succession by inheritance in the English Throne for the streame of probabilities was against him He was a child and the times required a compleat man and a man for warre He was the child of King Iohn whose demerits of the State were now fresh in the minds of all men He was also designed to the Throne by his fathers last Will M. Paris An. 1216. which was a dangerous president for them to admit who had but even now withstood King Iohns depositing of the Crown in the Popes hands as not being in the power of a King of England to dispose of his Crown according to his own will Yet leaping over all these considerations and looking on Henry the third as the child of a King that by good nouriture might prove a wise and just King they closed about this sparke in hope it might bring forth a flame whereby to warme themselves in stormy times Nor did their hopes soon perish for during his minority the King was wise to follow good councell and by it purged out all the ill humours that the kingdome had contracted in the rash distempers of his fathers government Nor did he onely follow the counsels of others herein but even at such times as their counsels crossed he chose those councels that suted with the most populer way as is to be seen in the different counsels of the Archbishop of Canterbury and William Briware M. Paris An. 1223. And yet two things troubled much those times one that they were times of parties the other that the Protector was somewhat too excellent to be a meere servant and its hard for the English Nobility to endure him to be greater although it may seem reasonable that they that are thought worthy to governe a King should be much more worthy to governe themselves But the Pope put an end to all occasion of question hereabout for by his briefe he declares the King to be sixteen yeeres old and of age to govern himselfe and therefore all Castles are forthwith to be rendred up into the Kings hands M. Paris An. 1223 1224. This proved the rock of offence whiles some obeyed the Pope and were impugners of those that put more confidence in the Castles then in the Kings good nature Hence first sprang a civill broyle thence want of money then a Parliament wherein the grand charter of Englands liberties once more was exchanged for a summe of money Thus God wheeled about successes But the King having passed over his tame age under the government of wise Councellors and by this time beginning to feele liberty it was his hard condition to meet with want of money and worse to meet with ill Councellors which served him with ill advice that the grand Charter would keepe him down make him continually poore and in state of pupilage to this giving credit it shaped an Idea in his mind that would never out for forty yeeres after and thus advised he neglects his own engagement defies the government that by his Royall word and the Kings his predecessors in coole blood had been setled and that he might doe this without check of conscience he forbad the study of the law that so it might die without heire and he have all by Escheat This sadded the English and made them drive heavily the King to adde more strength brought in forrainers and forraine Councels and then all was at a stand The Councels were for new waies The great designe was to get money to supply the Kings wants and as great a designe was to keepe the King in want otherwise it had been easie for those at the helme to have stopped the concourse of forrainers other then themselves from abroad the confluence of the Queenes poorer alies lavish entertainment profuse rewards cheates from Rome and all in necessitous times But strangers to maintaine their own interests must maintaine strangenesse between the King and his subjects to supply therefore these necessities all shifts are used as revoking of Charters displacing of Officers and fining them Afforestations with a traine of oppressions depending thereon fines and amercements corrupt advancements loanes and many tricks to make rich men offenders especially projects upon the City of London Neverthelesse all proved infinitely short of his disbursements so as at times he is necessitated to call Parliaments and let them know his wants At the first the people are sensible and allow supply but after by experience finding themselves hurt by their supplies to the King they grant upon conditions of renewing the power of the great Charter and many promises passe from the King to that end and after that oathes and yet no performance this makes the people absolutely deny supplies Then the King pretends warres in France warres in Scotland and wars against the Infidels in the Holyland whither he is going the people upon such grounds give him ayds but finding all but pretences or ill successe of such enterprises they are hardned against supplies of him for the holy warre then he seems penitent and poures out new promises sealed with the most solemne execration that is to be found in the wombe of story and so punctually recorded as if God would have all generations to remember it as the seale of the covenant between the King of England and his people and therefore I cannot omit it M. Paris An. 1253. It was done in full Parliament where the Lords Temporall and Spirituall Knights and others of the Clergy all standing with their Tapers burning The King himselfe also standing with a cheerly countenance holding his open hand upon his brest the Archbishop pronounced this curse ensuing By the authority of God omnipotent of the Sonne and of the holy Ghost and of the glorious mother of God the Virgin Mary and of the blessed Apostles Peter and Paul and of all the other Apostles and of the holy Martyr and Archbishop Thomas and of all the Martys and of the blessed Edward King of England and of all Confessors and Virgins and of all the Saints of God We Excommunicate and Anathematize and sequester from our holy mother the Church all those which henceforth knowingly and maliciously shall deprive or spoile Churches of their right And all those that shall by any art or wit rashly violate diminish or change secretly or openly in deed word or councell by crossing in part or whole those Ecclesiasticall liberties or ancient approved customes of the Kingdome especially the liberties and free customes which are contained in the Charters of the common liberties of England and the Forrests granted by our Lord the King to the Archbishops Bishops Prelates Earles Barons Knights and Freeholders And all those who have published or being published have observed any thing against them or their Statutes or which have brought in any customes or being brought in have observed and all writers of
England albeit that other parts of the Kingdome had not the like present regard as the City of London had cap. 26. The Writ of precipe in capite shall not be granted of any free hold whereby a man may be in danger of loosing his Court thereby It seemeth that it was one of the oppressions in those times that if a suit were commenced in the inferiour or Lords court concerning a free hold A Writ of praecipe in capite might be had upon a surmise that the free hold was holden in capite which might prove an absolute destruction to the inferiour Court and was the spoile of the demandants case and therefore I thinke the charter of King John instead of the word court hath the word cause There shall be but one known weight and measure cap. 27. and one breadth of Cloathes throughout the Realme of England This law of weights and measures was anciently established amongst the Saxons Ll. Edgar c. 3. as formerly hath been shewed and continued in the Normans times and confirmed by Richard the first and King John And as touching the measure of the bredth of Cloaths although it might seem to abridge the liberty of particular persons yet because it was prejudiciall to the common trade of the Kingdome it was setled in this manner to avoid deceit and to establish a known price of Cloths And it seemeth that Wine was ordinarily made in England as well as Ale otherwise the measures of Wine could not have been established by a Law in England if they had been altogether made in other Countries Inquisition of life and member shall be readily granted without fees cap. 28. It was a Law of latter originall made to take away a Norman oppression for by the Saxon law as hath been already noted no man was imprisoned for crime not baylable beyond the next County court or Sheriffs Torne but when those rurall Courts began to lose their power and the Kings courts to devoure trials of that nature especially by the meanes of the Justices itinerant which were but rare and for divers yeeres many times intermitted during all which time supposed offenders must lie in prison which was quite contrary to the liberty of the freemen amongst the Saxons it occasioned a new device to save the common liberty by speciall Writs sued out by the party imprisoned or under baile supposing himselfe circumvented by hatred and malice and by the same directed to the Sheriffe and others an inquisition was taken and triall made of the offence whether he deserved losse of life or member and if it were found for the supposed offender he was bailed till the next comming of the Justices and for this the Writ was called the Writ of inquisition of life or member and sometimes the Writ de odio atia But these inquests were soon become degenerate and subject to much corruption and therefore as soon met with a counterchecke from the Law Or first rather a regulation West 1. cap. 11 for it was ordained that the inquest should be chosen upon oath and that two of the inquest at the least should be Knights and those not interressed in the cause but yet this could not rectifie the matter for it seemed so impossible to doe justice and shew mercy this way Glocest cap 9. that the Writ is at length taken away and men left to their lot till the comming of Justices itinerant But this could not be indured above seven yeeres for though the King be a brave souldier West 2. cap. 29. and prosperous yet the people overcome him and recover their Writs de odio atia againe cap. 29. Lords shall have the Wardships of their Tenants heires although they hold also of the King in Petit Serjeanty Soccage Burgage or fee Farme Inferiour Lords had the same right of Wardships with the King for their tenures in Knightservice although their tenants did hold also of the King unlesse they held of him in Knight-service which was a service to be done by the tenants own person or by the person of his Esquire or other deputy in his stead but as touching such service as was wont to be done to him by render or serving him with Armes or other utensiles this was no Knightservice though such utensiles concerned warre Glanvil lib 7. cap. 9. but was called Petit Serjeanty as in the Lawbookes doth appeare Neverthelesse Henry the third had usurped Wardships in such cases also and the same amongst others occasioned the Barons wars cap. 30. No judge shall compell a freeman to confesse matter against himselfe upon oath without complaint first made against him Nor shall receive any complaint without present proofe This law in the originall is set down in another kind of phrase in the first part thereof which is obscure by reason thereof in expresse words it is thus No Judge shall compell any man ad legem manifestam which implieth that the matter was otherwise obscure if the party that was complained of or suspected did not manifest the same by his own declaring of the truth or matter inquired after and therefore they used in such cases to put him to oath and if he denied the matter or acquitted himselfe the Judge would sometimes discharge him or otherwise put him to his compurgators and this was called lex manifesta or lex apparens and it was a tricke first brought in by the Clergy and the temporall Judges imitated them therein and this became a snare and sore burden to the subjects To avoyd which they complaine of this new kind of triall and for remedy of this usurpation this law reviveth and establisheth the onely and old way of triall for Glanvill saith Ob infamiam non solet juxta legem terrae aliquis per legem apparentem se purgare nisi prius convictus fuerit vel confessus in curia Bracton fo 106 and therefore no man ought to be urged upon such difficulties unlesse by the expresse law of the land The old way of triall was first to bring in a complaint and witnesses ready to maintaine the same and therefore both appeales and actions then used to conclude their pleas with the names of witnesses subjoyned which at this day is implied in those generall words in their conclusions Et inde producit sectam suam that is he brings his sect or suite or such as doe follow or affirme his complaint as an other part also is implied in those words Et hoc paratus est verificare Seld. super Hengham For if the plaintiffs sect or suit of witnesses did not fully prove the matter in fact the defendants averment was made good by his own oath and the oathes of twelve men and so the triall was concluded No free men shall be imprisoned or disseised of his freehold cap. 31. or liberties outlawed or banished or invaded but by the Law of the Land and judgement of his Peeres Nor shall justice be
SR. NATHANIEL BACON From an Original at the Lord Viscount Grimslon's at Gorhambury Pubd. Augt. 10. 1795. by W. Richardson Castle St. Leicester Square AN HISTORICALL DISCOURSE OF THE UNIFORMITY OF THE GOVERNMENT OF ENGLAND THE FIRST PART From the first Times till the Reigne of Edward the third LONDON Printed for Mathew Walbancke at Grayes-Inne-Gate 1647. TO THE RIGHT HONOURABLE EDWARD Earle of Manchester Speaker of the House of Peeres AND THE HONOVRABLE WILLIAM LENTHALL Esqu Speaker of the House of Commons In PARLIAMENT MAy it please You to accept of this Sacrifice which I offer before Your Supreame Judicatory to the service of the times The fire is that of loyalty neither wilde nor common nor is the thing altogether forbidden and uncleane I confesse its maymed and unworthy yet it s the best that I have and in that regard whiles I now stand at Your Barre if You shall please to dismisse me without kneeling I shall in that posture doe the Houses the best service that I can elswhere NATH BACON To Consideration A Private debate concerning the right of an English King to Arbitrary rule over English Subjects as Successor to the Norman Conquerour so called first occasioned this Discourse Herein I have necessarily faln upon the Antiquity and Uniformity of the Government of this Nation It being cleared may also serve as an Idea for them to consider who doe mind the restitution of this shattered frame of policy For as in all orher cures so in that of a distempered government the originall constitution of the body is not lightly to be regarded and the contemplation of the proportion of the Manner of the Nation in a small modell brings no lesse furtherance to the right apprehension of the true nature thereof besides the delight then the perusing of a Map doth to the travailer after a long and tedious travaile I propound not this Discourse as a pattern drawn up to the life of the thing nor the thing it selfe as a Masterpiece for future ages for well I doe know that Common-weales in their minority doe want not onely perfection of strength and beauty but also of parts and proportion especially seeing that their full age attaineth no further growth then to a mixture of divers formes in one Ambition hath done much by discourse and action to bring forth Monarchy out of the wombe of notion but yet like that of the Philosophers stone the issue is but wind and the end misery to the undertakers and therfore more then probable it is that the utmost perfection of this nether worlds best government consists in the upholding of a due proportion of severall interests compounded into one temperature He that knoweth the secrets of all mens hearts doth know that my aime in this Discourse is neither at Scepter or Crosier nor after popular dotage but that Justice and Truth may moderate in all This is a Vessell I confesse ill and weakly built yet doth it adventure into the vast Ocean of your censures Gentlemen who are Antiquaries Lawyers and Historians any one of whom might have steered in this course much better then my selfe Had my owne credit been the fraite I must have expected nothing lesse then wracke and losse of all but the maine propose of this voyage being for discovery of the true nature of this government to common view I shall ever account your just censures and contradictions especially published with their grounds to be my most happy returne and as a Crown to this worke And that my labour hath its full reward if others taking advantage by mine imperfections shal beautifie England with a more perfect and lively caracter The Contents CHap. 1. Of the Britons and their government p. 1 Chap. 2 Concerning the conversion of the Britons unto the faith p. 3 Chap. 3. Of the entry of the Romans into Britaine and the state thereof during their continuance p. 5 Chap. 4. Of the entry of the Saxons and their manner of government p. 12 Chap. 5. Of Austins comming to the Saxons in England his entertainment and worke p. 17 Chap. 6. Of the imbodying of Prelacy into the government of this Kingdome p. 21 Chap. 7. Of Metropolitans in the Saxons time p. 23 Chap. 8. Of the Saxon Bishops p. 25 Chap. 9. Of the Saxon Presbyters p. 27 Chap. 10. Of inferiour Church-officers amongst the Saxons p. 28 Chap. 11. Of Church-mens maintenance amongst the Saxons p 29 Chap. 12. Of the severall precincts or jurisdictions of Church-governours amongst the Saxons p. 35 Chap. 13. Of the manner of the Prelates government of the Saxon Church p. 36 Chap. 14. Of causes Ecclesiasticall p. 39 Cha. 15. A briefe censure of the Saxon Prelaticall Church government p. 43 Chap. 16. Of the Saxons Common-weale and the government thereof and first of the King p. 46 Chap. 17. Of the Saxon Nobility p. 53 Chap. 18. Of the Freemen amongst the Saxons p. 55 Chap. 19. Of the villains amongst the Saxons p. 56 Chap. 20. Of the grand Councell amongst the Saxons called the Micklemote p. 57 Chap. 21. Of the Councell of Lords p. 62 Chap. 22. Of the manner of the Saxon government in the time of warre p. 63 Chap. 23. Of the government of the Saxon Kingdome in the times of peace and first of the division of the Kingdome into shires and their officers p. 65 Chap. 24. Of the County court and Sheriffs Torne p. 66 Chap. 25. Of the division of the County into Hundreds and the Officers and Court thereto belonging p. 68 Chap. 26. Of the division of the Hundreds into Decennaries p. 70 Chap. 27. Of Franchises and first of the Church Franchise p. 71 Chap. 28. Of the second franchise called the Marches p. 72 Chap. 29. Of County Palatines p. 73 Chap. 30. Of Franchises of the person ibid. Chap. 31. Of Mannors p. 75 Ch. 32. Of Courts incident united unto Mannors p. 77 Chap. 33. Of Townships and their Markets p. 79 Chap. 34. Of the Forrests p. 82 Chap. 35. Concerning Iudges in Courts of justice p. 84 Chap. 36. Of the proceedings in judicature by Indictment Appeale Presentment and Action p. 85 Chap. 37. Of the severall manners of extraordinary triall by Torture Ordeale Compurgators and Battaile p. 88 Chap. 38. Of the ordinary manner of triall amongst the Saxons by Inquest p. 91 Chap. 39. Of passing judgement and execution p. 94 Chap. 40. Of the penall Laws amongst the Saxons p. 96 Chap. 41. Of the Laws of property of Lands and Goods and the manner of their conveyance p. 102 Chap. 42. Of the times of Law and vacancy p. 110 Chap. 43. An Epilogue to the Saxon government p. 111 CHap. 44. Of the Norman entrance p. 113 Chap. 45. Of the title of the Norman Kings to the English crowne that it was by election p. 115 Chap. 46. That the government of the Normans proceeded upon the Saxon principles And first of Parliaments p. 120 Chap. 47. Of the Franchise of the Church in the Norman times p. 123
Chap. 48. Of the severall subservient jurisdictions by Marches Counties Hundreds Burroughs Lordships and Decennaries p. 131 Chap. 49. Of the immunities of the Saxon free men under the Norman government p. 135 Chap. 50. Recollection of certain Norman Laws concerning the Crown in relation to those of the Saxons formerly mentioned p. 138 Chap. 51. Of the like Lawes that concerne common interest of goods p. 142 Chap. 52. Of Laws that concerne common interest of Lands p. 144 Chap. 53. Of divers Laws made concerning the execution of justice p. 150 Chap. 54. Of the Militia during the Normans time p. 152 Chap. 55. That the entry of the Normans into this government could not be by Conquest p. 155 Chap. 56. A briefe survey of the sence of Writers concerning the point of conquest p. 158 CHap. 57. Of the government during the Reignes of Steven Henry the second Richard the first and John and first of their titles to the Crown and disposition in government p. 165 Chap. 58. Of the state of the Nobility of England from the Conquest and during the Reigne of these severall Kings p. 172 Chap. 59. Of the state of the Clergie and their power in this Kingdome from the Norman time p. 175 Chap. 60. Of the English Communally since the Norman time p. 188 Chap. 61. Of Judicature the Courts and their Iudges p. 189 Chap. 62. Of certaine Laws of judicature in the time of Henry the 2. p. 193 Chap 63. Of the Militia of this Kingdome during the Reigne of these Kings p. 205 CHap. 64. Of the government of Henry the third Edward the first and Edward the second Kings of England And first a generall view of the disposition of their government p. 207 Chap. 65. Of the condition of the Nobility of England till the time of Edward the third p. 221 Chap. 66. Of the state of the English Clergie untill the time of Edward the third and herein concerning the Statutes of Circumspecte agatis Articuli cleri and of Generall Councels and Nationall Synods p. 225 Chap. 67. Of the condition of the Free men of England and the grand Charter and severall Statutes concerning the same during the Reigne of these Kings p. 253 Chap. 68. Of Courts and their proceedings p. 284 Chap. 69. Of Coroners Sheriffs and Crowne pleas p. 286 Chap. 70. Of the Militia during these Kings reignes p. 294 Chap. 71. Of the Peace p. 300 PROLOGUE THe policie of English government so farre as is praise-worthy is all one with Divine providence wrapped up in a vaile of Kings and wise men and thus implicitely hath been delivered to the World by Historians who for the most part doe read men and weare their Pens in decyphering their persons and conditions some of whom having met with ingenuous Writers survive themselves possibly more famous after death then before Others after a miserable life wasted are yet more miserable in being little better then tables to set forth the Painters workmanship and to let the World know that their Historians are more witty then themselves of whom they wrote were either wise or good And thus History that should be a witnesse of Truth and time becomes little better then a parable or rather then a nonsence in a faire Character whose best commendation is that it s well written Doubtlesse Histories of persons or lives of men have their excellency in fruit for imitation and continuance of fame as a reward of vertue yet will not the coacervation of these together declare the nature of a Common-weale better then the beauty of a body dismembred is revived by thrusting together the members which cannot be without deformity Nor will it be denied but many wise and good Kings and Queenes of this Realme may justly challenge the honour of passing many excellent Lawes albeit its the proper worke of the representative body to forme them yet to no one nor all of them can we attribute the honour of that wisdome and goodnesse that constituted this blessed frame of government for seldome is it seen that one Prince buildeth upon the foundation of his predecessour or pursueth his ends or aimes because as severall men they have severall judgements and desires and are subject to a Royall kind of selfe-love that inciteth them either to exceed former presidents or at least to differ from them that they may not seem to rule by coppy as insufficient of themselves which is a kind of disparagement to such as are above Adde hereunto that it s not to be conceited that the wisest of our ancestors saw the Idea of this government nor was it any where in president but in him that determined the same from eternity for as no Nation can shew more variety and inconstancy in the government of Princes then this especially for three hundred yeeres next ensuing the Normans so reason cannot move imagination that these wheeles by divers if not contrary motions could ever conspire into this temperature of policy were there not some primum mobile that hath ever kept one constant motion in all My aime therefore shall be to lay aside the consideration of man as much as may be and to extract a summary view of the cardinall passes of the government of this Kingdome and to glance at various aspects of the ancient upon the moderne that so these divers Princes and wise councels in their different course may appeare to be no other then the instruments of him that is but one and of one mind whose goings forth have been in a continuall course of Wisdome and goodnesse for our selves in these latter daies and herein I am encouraged because I am not in danger of temptation to flattery or spleene nor pinched with penury of grounds of observation having to doe with a Nation then vvhich a cleerer miror of Gods gracious government is not to be found amongst all the Nations and peoples under Heaven The Contents of the severall Chapters of this Book I. THe sum of the severall Reignes of Edward the third and Richard the second fol. 3. II. The state of the King and Parliament in relation of him to it and of it to him fol. 13. III. Of the Privy Council and the condition of the Lords f. 26. IV. Of the Chancery fol. 35. V. Of the Admirals Court. fol. 41. VI. Of the Church-mens Interest fol. 45. VII Concerning Trade fol. 64. VIII Of Treason and Legiance with some considerations concerning Calvins Case fol. 76. IX Of Courts for causes criminall with their Laws fo 92. X. Of the course of Civill Justice during these times fo 96. XI Of the Militia in these times fol. 98. XII Of the Peace fol. 108. XIII A view of the summary courses of Henry the fourth Henry the fifth and Henry the sixth in their severall Reignes fol. 115. XIV Of the Parliament during the Reignes of these severall Kings fol. 127. XV. Of the Custos or Protector Regni fol. 134. XVI Concerning the Privy Councell fol. 141. XVII Of the Clergie and
And as at Tenis the Dane and Bishop served each other with the fond Countrey man that whether Lord Dane or Lord Bishop was the greater burden is hard to be determined Thus became ambicious Prelacy in its full glory and the poore Church of Christ clouded in darknesse and little hold left for recovery but onely by the liberty of the Saxon freeman which the Danes could never conquer not for want of will or power but of time and occasion for the Crown returned to the Saxon line againe after the halfe age of one man although it was worn by three so God would have it nor did any monument of the Danish government remain saving a few customes in some places which shew rather that the Danes were there then ruled here To summe up all The Saxon Commonweale was a building of greatest strength downward even to the foundation arched together both for peace and warre That by the law of Decenners wherein Justice was the bond this by their armies gathered not by promiscuous flocking of people but by orderly concurrance of families Tacitus kindreds and Decenners all choosing their own leaders and so honour love and trust conspired together to leave no mans life in danger nor death unrevenged It was a beautifull composure mutually dependant in every part from the Crown to the cloune the Magistrates being all choice men and the King the choicest of chosen election being the birth of esteem and that of merit this bred love and mutuall trust which made them as corner-stones pointed forward to breake the wave of danger nor was other reward expected by the great men but honour and admiration which commonly brought a return of acts of renown Lastly it was a regular frame in every part squared and made even by Lawes which in the people ruled as lex loquens and in the Magistrate as lex intelligens all of them being grounded on the wisdome of the Greekes and Judicials of Moses Thus the Saxons became somewhat like the Jewes divers from all other people their lawes honourable for the King easie for the subject and their government above all other likest unto that of Christs Kingdome whose yoke is easie and burthen light but their motion proved so irregular as God was pleased to reduce them by another way CHAP. XLIV Of the Norman entrance THus was England become a goodly Farme The Britons were the owners the Saxons the occupants having no better title then a possession upon a forcible entry with a continuando for the space of foure hundred yeares seldome quiet either from the claime and disturbances of the restlesse Britons or invading Danes who not onely got footing in the Country but setled in the Throne and after gave over the same to the use as it proved of another people sprung from the wilde stock of Norway and thence transplanted into a milder Climate yet scarcely civillized that in one Isle the glory of Gods bounty might shine forth to all the barbarisme of Europe in making a beautifull Church out of the refuse of Nations These were the Normans out of the continent of France that in their first view appeared like the pillar of the cloud with terrour of revenge upon the Danish pride the Saxon cruelty and Idolatry of both peoples but after some distance shewed like the pillar of fire clearing Gods providence for the good of this Island to be enjoyed by the succeeding generations Nor was this done by revelation or vision but by over-ruling the aspiring mind of Duke William of Normandy to be a scourge unto Harold for his usurpation and unto the people for their causelesse deserting the royall stemme yet because the haughtiest spirit is still under fame and opinion and cannot rest without pretence or colour of right and justice the Duke first armed himselfe with titles which were too many to make one good claime and served rather to busie mens minds with musing whiles he catcheth the prey then settle their judgements in approving of his way First he was cousin german to the Confessor and he childlesse and thus the Duke was nigh though there were nigher then he but the worst point in the case was that the Duke was a bastard and so by the Saxon law without the line nor was there other salve thereto but the Norman custome that made no difference so as the Duke had a colour to frame a title though England had no Law to allow it and this was the best flower of his Garland when he meant to solace himselfe with the English as may appeare by what his sonne Henry the first sets forth to the world in his charter whereby he advanced the Abby of Ely into the degree of a Bishoprick and wherein amongst his other titles he cals himselfe sonne of William the great Spicileg Qui Edwardo Regi successit in regnum jure haereditario But if that came short he had the bequest of the Confessor who had designed the Duke to be his successor and this was confirmed by the consent of the Nobility and principally of Harold himselfe M. Paris 1. An. Brit. Eccles 96. and in assurance thereof promised his sister to the Duke in marriage This countenanced a double title one by legacy the other by election and might be sufficient if not to make the Dukes title just yet Harold's the more unjust and to ground that quarrell that in the conclusion laid the Dukes way open to the Crown And for the better varnish the Duke would not be his own judge he referres his Title to be discussed at the Court of Rome and so flattered the Pope with a judicatory power amongst Princes a trick of the new stamp whereby he obtained sentence in his own behalfe from the infallible chaire The Pope glad hereof laid up this amongst his treasures as an estoppell to Kings for times to come And the King made no lesse benefit of estoppel against the English Clergy that otherwise might have opposed him and of assurance of those to him that were his friends and of advantage against Harold that had gotten the Crown sine Ecclesiastica authoritate and by that meanes had made Pope Alexander and all the Prelates of England his enemies M. Paris 2. But if all failed yet the Duke had now a just cause of quarrell against Harold for breach of oath and covenant Hist vit Eadm 5. wherein if Harold chanced to be vanquished and the Crown offered it selfe faire he might without breach of conscience or modesty accept thereof and be accounted happy in the finding and wise in the receiving rather then unjustly hardy in the forcing thereof And this might occasion the Duke to challenge Harold to single combate as if he would let all the world know that the quarrell was personall and not Nationall But this maske soon fell off by the death of Harold and the Duke must now explaine himselfe that it was the value of the English Crown and not the title that brought
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 the validity of the will in its generall nature it was transmitted to the Ecclesiasticall court CHAP. LXIII Of the Militia of this Kingdome during the reigne of these Kings I Undertake not the debate of right but as touching matter of fact shortly thus much that frō the Norman times the power of the Militia rested upon two principles the one the allegiance for the common defence of the Kings person and honour and Kingdome and in this case the King had the power to levy the force of the Kingdome neverthelesse the cause was still under the cognisance of the great councell so farre as to agree or disavow the warre if they saw cause as appeared in the defections of the Barons in the quarrell between King Steven and the Empresse and between King John and his Barrons The other principle was the service due to the Lord from the Tenant and by vertue hereof especially whenas the liberty of the Commons was in question the Militia was swayed by the Lords and they drew the people in Armes either one way or the other as the case appeared to them the experience whereof the Kings from time to time felt to their extreame prejudice and the Kingdoms dammage Nor did the former principle oversway the latter although it might seem more considerable but onely in the times of civill peace when the Lords were quiet and the people well conceited of the Kings aimes in reference to the publique which happinesse it was Henry the seconds lot to enjoy for he being a Prince eminent amongst Princes both for endowments of mind and of outward estate not onely gained honour abroad but much more amongst his own people at home who saw plainly that he was for forraigne imployment of honour to the Kingdome and not onely contented with what he had in England but imbarked together with the Laity against the growing power of the Clergy for the defence and honour of the priviledges of the Crown wherein also the liberties of the people were included They therefore were secure in the Kings way and suffered themselves to be engaged unto the Crown further then they or their ancestors formerly had been out of pretence of sudden extreame occasions of the Kingdome that would not be matched with the ordinary course of defence For the King finding by former experience that the way of Tenures was too lame a supply for his acquests abroad and that it had proved little better then a broken reed to the Crown in case of dispute with the people aimed at a further reach then the Lords or Commons foresaw and having learned a tricke in France brought it over although it was neither the first nor last trick that England learned to their cost from France which was a new way of leavying of men and Armes for the warre Hoveden 1181. by assessing upon every Knights fee and upon every free man of the vallew of sixteen Marks yeerly their certaine Armes and upon every free man of ten Marks yeerely valew their certaine Armes and upon every Burgesse and free man of an inferiour valew their certaine Armes 2. That these should be ready prepared against a certaine day 3. That they should be kept and maintained from time to time in the Kings service and at his command 4. That they should not be lent pledged sold or given away 5. That in case of death they should descend to the heire who if under age should finde a man to serve in his stead 6. That in case the owner were able he should be ready at a certaine day with his Armes for the service of the King ad fidem Domini Regis Regni sui 7. That unto this every man should be sworn I call this a new way of levying of Armes and men not but that formerly other free men and Burgesses found Armes albeit they held not by Knight service for it was so ordained by the Conquerours laws formerly used but now the King thrust in two clauses besides the altering of the Armes the one concerning the oath whereby all men became bound the other concerning the raising and ordering of men and armes which here seems to be referred to the King onely and in his service and this I grant may imply much in common capacity viz. that all the power of the Militia is in Henry the second But this tricke catched not the people according to the Kings meaning for the words ad fidem Regis Regni still left a muse for the people to escape if they were called out against their duty to the Kingdome and taught the doctrine which is not yet repealed viz. That what is not according to their faith to the Kingdome is not according to their faith to the King and therefore they could finde in their hearts sometimes to sit still at home when they were called forth to warre as may appeare in one passage in the daies of King John who had gathered together an Army for the opposing of forraine power at such time as the Pope had done his worst against him and the whole Kingdome which Army was of such considerable strength as I believe none since the conquest to this day exceeded or paraleld it but the Kings mean submission to the Popes Legate so distasted the Nobles and people as they left him to his own shifts and that in such manner as although afterwards he had advantage of them and liberty enough to have raised an Army to have strengthned himselfe against the Nobles yet the Lords comming from London brought on the sudden such a party as the King was not able to withstand and so he came off with that conclusion made at Renny meade which though in it selfe was honourable yet lost the King so much the more because it was rather gained from him then made by him CHAP. LXIV Of the Government of Henry the third Edward the first and Edward the second Kings of England And first a generall view of the disposition of their government ONe hundred and ten yeeres more I have together taken up to adde a period to this first part of discourse concerning English government principally because one spirit of arbitrary rule from King Iohn seemeth to breathe throughout the whole and therewith did expire The first that presents himselfe is Henry the third begotten by King Iohn when he was in the very first enterprize of oppression that occasioned the first Barons bloody warres and which this King was so miserable as to continue for the greatest part of his life and reigne and yet so happy as to see it ended about four yeeres before he died Although the soule be not ingendered from the parent yet the temperature of the body of the child doth sometimes so attemper the motion of the soule that there is in the child the very image of the fathers mind and this Henry the third lively expressed being so like unto his father Iohn in his worst course as if his fathers own spirit
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
further worke to make a man a Knight then his bare tenure for such onely were milites facti who had both Lands sufficient to maintaine the Armes and state of a Knight and also a body fit to undertake the service in his own person and whereof he had given sufficient proofe in the field Others that had Land either had not sufficient maintenance or not habiliments of person and as not expected were laid aside of this sort were many by reason of the late civill warres in which they had much impaired both their bodies and estates This rendred the strength of the Kingdome and Militia so much decayed and the minds of men so weared that they began to love ease before the times would brooke it and a cessation from Arme before they had any mind to peace The Parliament espied the danger how necessary it was for the people to be well armed in these times of generall broile and upon that ground allowed this law to passe that all such as had Lands worth 20 li. yeerly besides reprisals should be ready not to be Knights nor under the favour of others is there any ancient president to warrant it but to finde or to enter the field with the Armes of a Knight or provide some able person to serve in their stead unlesse they were under 21 yeeres of age and so not grown up to full strength of body nor their lands in their own possession but in custody of their Lords or guardians Neverthelesse of such as were grown to full age yet were maimed impotent or of meane estate and tenants by service of a Knight it was had into a way of moderation and ordered that such should pay a reasonable fine for respit of such service nor further as concerning their persons were they bound But as touthing such that were under present onely and not perpetuall disabilities of body upon them incumbent as often as occasion called they served by their deputies or servants all which was grounded not onely upon the law of Henry the second but also upon common right of tenure The armes that these men were to finde are said to be those belonging to a Knight which were partly for defence and partly for offence of the first sort were the Shield the Helmet the Hauberk or Brestplate or coate of maile Of the second sort were the Sword and Lance And unto all a horse must be provided These Armes especially the defensive haue been formerly under alteration for the Brestplate could not be worne with the coate of maile and therefore must be used as occasion was provided of either and for this cause the service of a Knight is called by severall names sometimes from the horse sometimes from the Lance sometimes from the Helmet and not seldome from the coat of maile The power of immediate command or calling forth the Knights to their service in its own nature was but ministeriall and subservient to that power that ordered warre to be leavied and therefore as in the first-Saxon government under their Princes in Germany so after under their Kings Tacitur warre was never resolved upon but if it were defensive it was by the counsell of Lords if offensive by the generall vote of the grand Councell of the Kingdome so by vertue of such order either from the Councell of Lords or grand Councell the Knights were called forth to warre and others as the case required summoned to a rendezvouz and this instumentall power regularly rested in the Lords to whom such service was due and the Lords were summoned by the Lord Paramont as chiefe of the fee of which their tenants were holden and not as King or chiefe Captaine in the field for they were not raised by Proclamation but by summons issued forth to the Sheriffe with distresse and this onely against such as were within his own fee and held of the Crown The King therefore might have many Knights at his command but the Lords more and if those Lords failed in their due correspondency with the King all those of the inferiour orbe were carried away after them so the King is left to shift for himselfe as well as he can and this might be occasioned not onely from their tenures by which they stood obliged to the inferiour Lords but probably much more by their popularity which was more prevalent by how much Kings looked upon the Commons at a further distance in those daies then in after times when the Commons interposed intentively in the publique government And thus the Horsemen of England becomming lesse constant in adhearing to their Soveraigne in the field occasioned Kings to betake themselves to their foot and to forme the strength of their battels wholly in them and themselves on foot to engage with them One point of liberty these Souldiers by tenure had which made their service not altogether servile and that was that their service in the field was neither indefinite nor infinite but circumscribed by place time and end The time of their service for the continuance of it was for a set time if it were at their own charges and although some had a shorter time yet the generall sort were restrained to forty daies For the courage of those times consisted not in wearying and wasting the Souldier in the field by delayes and long worke in wheeling about and retiring but in playing their prizes like two combitants of resolution to get victory by valour or to die If upon extraordinary occasions the warre continued longer then the tenant served upon the pay of the common purse The end of the service of the Tenant viz. their Lords defence in the defence of the Kingdom stinted their work within certain bounds of place beyond which they were not to be drawn unlesse of their own accord and these were the borders of the Dominion of the Crown of England which in those daies extended into Scotland on the North and into a great part of France on the South And therefore the Earle Marshall of England being by Edw. 1. commanded by vertue of his tenure to attend in person upon the Standart under his Lieutenant that then was to be sent into Flanders which was no part of the Dominion of England refused and notwithstanding the Kings threats to hang him yet he persisted saying he would neither goe nor hang. Not onely because the tenants by Knight service are bound to the defence of their Lords persons and not of their Lieutenants but principally because they are to serve for the safety and defence of the Kingdom and therefore ought not to be drawn into forraine Countries Nor did the Earle marshall onely this Walsing fo 69. 71. but many others also both Knights and Knights fellows having twenty pounds per annum for all these with their armes were summoned to serve under the Kings pay in Flanders I say multitudes of them refused to serve and afterwards joyned with the rest of the Commons in a Petition to the
so like a little ship cast out a barrell for the Whale to peruse till it gets away but this changed no right The Lords by their partees shattered them a sunder and dismembered their body by intestine broiles The Clergy more craftily making some of them free Denisins of the Roman See and taking them into their protection whiles others of the free men at a distance were exposed as a prey to the continuall assaults of those devouring times all these conspired together to deface and destroy that ancient and goodly bond of brotherhood the Law of Decenners by which the free men formerly holden together like Cement in a strong wall are now left like a heape of loose stones or so many single men scarcely escaping with their skinne of liberties and those invaded by many projects and shifts in government of State affaires So must I leave them untill some happy hand shall worke their repaire both for time and manner as it shall please that great and wise Master builder of the World FINIS The Table ABbats page 229 Abbeys quarter p. 242 Not taxed or visited from forraine parts p. 244 Vacancies ibid. Purveyance ibid. Aberemurder amongst the Saxons p. 99 Accolites amongst the Saxons p. 28 Accusation witnesses amongst the Saxons p. 150 Action amongst the Saxons p. 87 Acquittaile vide Knightservice Administration vide Intestate Adultery amongst the Saxons p. 42 amongst the Normans p. 141 after p. 234 Advousions cognisance p. 178 Aedeling p. 53 Age vide Infancy Aides after the Norman times 201 278 285 Alderman p 53 Alienations licence p. 183 274 Allegiance according to the Saxons p 86 The Normans p. 151 Amercements p. 250 262 Apostacy punished by the Saxons p. 39 after p. 194 Appeales amongst the Saxons p. 86 the Normans p. 151 after p. 274 Appeales to Rome p. 176 setled p. 179 to Ecclesiastical Courts p. 179 Archbishops vide Metropolitans Arraies p. 305 c. Armes assessement p 206 vide Arraies Austin the Monke his comming and his actions p. 17 c. B. BAile 195 c. 269 c. 290 Bankes vide Bridges Baron vide Court Bargaine and saile of goods amongst the Saxons p. 107 the Normans p. 143 Barons warres p. 221 c Bastardy amongst the Saxons p. 42 Battaile triall amongst the Saxons p. 90 Batteries punished by the Sax ns p. 100 193 Bigamists p. 247 Bishops amongst the Saxons p. 25 vide Prelacy amongst the Normans their power increased p. 123 c. vide elections their oath to the Pope p 184 Basphemy punished by the Saxons p. 39 98 amongst the Normans p. 138 Bloodshed vide Manslaughter Bridges p 263 Britons their Religion and government 1 c. 18 conversion p. 3 instructed in learning p. 6 a Province ibid. the last that submitted to the papalty and the first that shook it off p. 20 Burgage amongst the Saxons p. 82 Burghbote ibid. Burglary punished by the Saxons p. 101 Burning of woods punished by the Saxons p. 101 vide p. 195 Burroughs Mag. cart Burroughs English p. 106 C. CAnnon-law p. 121 vide Prelacy Carriages p. 266 267 Castles their use p. 117 265 c. abuse p. 166 occasion of the first civill wars p. 209 Castle guard vide Mag. cart p. 267 de Cautione admittenda p. 182 Chancery p. 285 Chancemedly p. 287 Church maintainance by the Saxons p. 29 c. Franchise p. 71 Alienation p. 183 Reparation p. 235 Church-men Action p. 230 231 discharged from Torns p. 230 purveyance p. 23 267 Their complaints p. 227 236 Priviledged from distresse p. 242 Ciricksceate amongst the Saxons p. 30 Normans p. 139 Vide first fruits Circuits p. 192 Citation p. 182 242 Clerks triall p. 185 231 243 Killers of Clerks p. 185 Comites ex plebe p. 55 Common pleas setled p. 260 Commutation vide Arriculi Cleri Compurgators amongst the Saxons p. 89 Confession sacred p. 242 Constitutions at Clarindon p. 178 de Consimili casu p. 285 Conveyance vide Deeds Copy hold vide Mannor Coroners amongst the Saxons p. 66 286 Corporations p. 77 c. 125 Coverfew p. 163 Councels generall vide Synods Councels of Lords amongst the Saxons p. 54 vide Lords Counties Courts amongst the Saxons p. 65 Normans p. 131 After p. 275 276 285 Court Baron amongst the Saxons p. 78 Crown pleas Mag. cart p. 264 Curtesie of England in the Saxons time p. 105 Custodes pagani amongst the Saxons p. 55 D. DAneguelt p. 164 Released p. 189 Darrain presentment Mag. Cart. p. 262 Deacons p. 28 Deaneries amongst the Saxons p. 36 Debt to the King satisfaction p. 257 Debt to the King Mag. cart Decenners amongst the Saxons p. 70 Normans p. 134 Deeds among the Saxons p. 107 Defamation p 235 240 Departure beyond Sea without licence p. 180 Diocesses amongst the Saxons p. 36 Distresse in the Normans time p. 142 Mag. carta 258 c. vide County court Disseisin vide Redisseisin Noveldisseisin Dower in the Saxon time p. 103 Norman times p. 146 256 E ECclesiasticall cognisance and powmer p. 176 c. 129 204 Vide Stat. Circumspecte agatis Articuli cleri Ederbrece amongst the Saxons p. 101 Edw. the first p 214 Edw. the second p. 218 Elections p. 121 180 232 243 Elegit amongst the Saxons p. 95 Englishire a Saxon Law p. 100 Errour vide Appeales Escheates p 268 Vide Forfaiture Felony Escuage Mag. Carta p. 276 c. Excommunication in the Saxons time p. 95 Normans p. 128 After the Normans time 181 Excommunicato deliberando p. 241 Excommunicato capiendo p. 242 291 Execution in the Saxon time p. 94 Executors Mag. carta Exorsists p. 28 F. FAires in the Norman time p. 143 Fauxonry p. 192 195 Feastdaies Norman law p. 139 Felonies and Felons punishment and forfaiture p. 151 195 267 Concelement p. 289 Defamed ibid. Feorme or Farme amongst the Saxons p. 75 Fightwit amongst the Saxons p. 100 Fine by the Normans p. 150 280 c. Folkmote Vide County court Fooles and ideots amongst the Normans p. 149 After p. 280 Forraine councels p. 209 212 219 Fornication vide Adultery Forrests amongst the Saxons p. 82 Franchises p. 68 Frankpledge amongst the Saxons p. 78 Vide view Freemen of the Saxons p. 55 Normans p. 135 After p. 188 272 Frithbrech amongst the Saxons p. 100 Fugam fecit p. 85 Fugitives p. 268 G GAvellkind amongst the Saxons p. 106 Normans p. 160 Glebe amongst the Saxon p. 32 Goods found Saxon Law p. 109 Norman p. 143 Sale ibid. Grithbrech vide Frithbrech H HAbendum Saxon p. 107 Hamsockne Saxon p. 101 Heresie punished by the Saxons p. 39 Normans p. 138 After p. 193 Haubergettum Haubertum Halbargellum what it is p. 309 Heretock Saxon p. 53 Henry the first p. 119 Henry the second p. 167 Henry the third p. 207 c. Shifts for money p. 210 Forraine councels p. 212 Yeelds up his interest in the militia to the Lords ibid. c. Heordpeny vide Peterpence Highwaies priviledge p. 305 Hundred and the Court