the Conquest and during the reigne of these severall Kings UNder the title of the Nobility of England I shall comprehend all such as are of the greatest eminency for birth or wisdome and learning and advancement into place of government and honour These were in the Saxons times the flower of the people flourishing onely from the honour that ascended from beneath their deportment then was full of cheere and safety to the people after that royalty sprung up the influence thereof upon them exhaled such a reciprocall interest backe againe as made them lesse regardfull of their own roote Whereas we see the more mature flowers are the more propence to turne head and looke downward to their own originall This distemper was yet much worse by the comming in of the Normans whose Nobility besides their titles of honour in their own Country obtained by custome such command and power amongst the meaner sort being souldiers under them in time of the service in the field that when the warres had breathed out their last neither of them could forget or were very carefull to lay aside This was observed by Kings and advantage espied to clime to the top of Monarchy by the helpe of these great men whom if they could make their own all would be theirs and wherein they had prevailed much more then they did if they had been wise enough to have maintained them in unity but in that failing Kings were necessitated to take parties and serve the Nobility to save the maine and thus continued they a considerable party in the gouernment of this kingdome from the Normans for the space of two hundred yeeres well nigh to the prejudice both of the growth of the prerogative of Kings and liberties of the Commons and benefit of none but the Lords who in those unquiet times were the chiefe Commanders in the field This errour of Kings was soon espied but could not be avoyded its naturall to man to be proud and to such to fall into contention another course therefore is taken viz. to raise up some so high as may overtop all and keep them under nor is it altogether without reason for Kings are no ubiquitaries and some must beare their power where they cannot be personally present yet it is dangerous to bestow too much upon one man for there is no man fitting to be a King but himselfe that is a King and where kings are immoderate in bestowing power it many times workes much woe to the people and not seldome sorrow to the Kings themselves The place of the chiefe Justice was in shew but one Office yet in these times was in nature of the Kings Lieutenant-generall throughout the kingdome A power and worke too great for any one man in the world that can make no deputies to mannage it Hoveden 443 375. Nubr lib. 4. cap. 14. and yet in those times you shall meet with one man made up of an Archbishop a Legate and chiefe Justice of England or a Bishop a Lord Chancellor a Legate and chiefe Justice of England and a strange kind of government must that needs be wherein the servants Throne is above his masters and a subject shall have a plenitudinary power beyond that which his Lord and King was as the times then were was capable of By these and such like pluralities the great men of England kept the Commons below and themselves above and probably rendred the temper of the government of this kingdome more Aristocraticall then in after ages And if their personall authority was of such value how much rather in their joynt assembly or court of Councell concerning which I must agree that as in their originall in Germany they did consult and determine of the meaner matters that is to say of matters concerning property and therefore were in their most ordinary worke meetings of Judges or Courts of Judicature and also matters of defensive warre because themselves were the Commanders and lastly in matters of sudden concernment to the State not onely to serve as eyes to foresee but to provide also if they can or otherwise to call in the ayd of the peoples advice so also they continued this course and it may be now and then as all Councels have done strained their endeavours beyond their reach especally since the Normans entrance and therefore I shall not deny but that they alone with the King and without the Commons have made many Laws and Constitutions some of which now are called Statutes although many of them in truth are no other then rules for Judicature which ordinary Courts may frame or Judgements in particular cases such as are the constitutions at Clarindon in Henry the seconds time and many other Laws which are reported to be made between the King and his Lords Nor can I looke upon such laws otherwise then as upon judgements in Courts of Justice in new points of controversie grounded upon ancient grounds which properly are not new Laws but the ancient rule applied to new particulars and being so published to the world may beare the name of Laws Ordinances Constitutions or Judgements the word Statute being of later times taken up and used in a more restrictive sence of which more in their due place Now that this Court was a setled Court of judicature Hoveden An. 1175. and so used may appeare in that fines were leavied therein and Writs of right determined as in that great case between the two Kings of Navarr and Castile Ibid. referred to the judgement of Henry the second and tried in this Court it s said that the triall was by plea and if need wereby battell The Judges in this Court were the Baronage of England for the entry of judgement in that great case is thus Comites Barones Regalis Curiae Angliae adjudicaverunt c. so as though doubtlesse many were absent some being enemies others discontented others upon other occasions yet all might claime their votes as Barons The President over all the rest was the chiefe Justice or if the King were present then himselfe and by him was the sentence or judgement declared according to the entry in the case aforesaid Habito Concilio cum Episcopis Comitibus Baronibus adjudicavimus c. The honour of this Court was great so long as the Lords had liberty or care to attend thereon but when Kings began to have private interests they would have these to be more private Councels which weakned the esteem of conclusions that there passed and reduced the honour thereof scarce to the degree of a Conventicle and by this means the necessity of calling together the whole body representative was made more frequent the power of the Nobility of England decayed and this Court forfeited all its juridicall power to the three Courts at Westminster viz. the Kings bench Common pleas and Exchequer saving still the supreame judicature unto the grand Convention of Estates in Parliament where all the Lords had liberty of meeting and free
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
dignity or title which you will was a plant of that virulent nature that would scarce keepe under-ground in the time of the hottest persecution for Steven Bishop of Rome liked the title of universall Bishop Mag. cent 3. cap. 7. And after a little peace it s a wonder how it grew to that height that it had And no lesse wonderfull that the Saxons gave intertainment to such potentates Much of whose spirit they might have observed in the entrance of their first Archbishop Austen if God had not given them over to thraldome under that mystery of iniquity of sinfull man aspiring into the place of God taught by that Courtly messenger of Rome because they would not stoop to that mystery of godlinesse God manifested in the flesh as it was taught in simplicity by the rurall Picts and Britons But this was not all for because Archbishops were gotten above Canon which was thought scandalous therefore they gave as large a power by Canon as the former usurpation amounted unto and so stretched the Canon to the mind of the man whenas they should have rather reduced the man to the Canon The words of the Canon in our English tongue runne thus It belongs to the Metropolitan Bishop to rule Gods Churches to governe chuse appoint confirme and remove Abbots Abbotesses Presbyters and Deacons and herewith the King hath nothing to doe And thus though the apparent power of Archbishops was great and unlimited Concil Brit. p. 190. yet what more was wrapped up in that word Churches onely time must declare for it s very likely that in those daies it was not understood yet the practise doth not obscurely declare the matter for before this Law was established by Withered in a Councell wherein Bertnaldus Archbishop of Canterbury was president An. 694. Ant. Brit. p. 55. and who was first Primate of England Theodore Archbishop of Canterbury used such power over other Bishops in ordaining and removing them as a writer saith Malmsb. lib. 1. cap. 2. Ant. Brit. p. 54. that his rule was no other then perturbatio and impetus animi and his carriage towards Wilfrid produced as a testimony But the Metropolitan in England as the times then were had yet a further advantage even over Kings themselves for there were divers Kingdomes in this Island and Kings had no further power then their limits afforded them but there was but one Metropolitan for a long time in all the Saxon territories so as his power was in spirituals over many kingdomes and so he became indeed alterius orbis Papa and it was a remarkable testimony of Gods speciall providence that the spirits of these petty Popes should be so bound up under the notion of the infallibility of the Roman chaire that they had not torne the European Church into as many Popedomes as Provinces But no doubt God ordered it for a scourge to the world that Antichrist should be but one that he might be the more absolute tyrant and that Kings should bow down their necks under the double or rather multiple yoke of Pope and Archbishops for their rebellion against the King of Kings CHAP. VIII Of the Saxon Bishops HAd not Bishops been somewhat sutable the Roman Clergy had not been like it selfe and it had been contrary to Austins principles to have advanced to Bishopricks men better qualified then himselfe They first ruled the Saxon Church joyntly in the nature of a Presbytery till about sixty yeeres after Austins time their pride would not endure together any longer and it may be grew somewhat untractable under the Metropolitan that resolved to be prouder then all and thereupon Theodore Archbishop of Canterbury first divided his Province into five Diocesses Ant. Brit. 52. Concil Brit. 133. Ant. Brit. 54 Ibid. 53. and by appointment of them Kings and people placed Bishops over each every one of them being of the right Roman stampe as himselfe was of the right Roman shaving And it had been a wonder if Episcopacy now for the space of three hundred yeeres degenerated and that into such a monstrous shape as a Pope should by transplanting become regenerate into their originall condition of meeknesse and humility But it s much greater wonder that they should become so purely ambicious as not to endure a thought of the waies of sobriety but would be proud by Law to let all the world know that they held it no infirmity but an honour For albeit that in the first time the Bishops work was to instruct and teach to see the service of God to be diligently and purely administred in publique congregations Concil Brit. 238 246 261. to exhort reprove and by teaching to amend such matters as he should finde in life and doctrine contrary to Religion and accordingly they carried themselves meekly and humbly Mag. Cent. 7. cap. 7. studying peace and truth and meddled not with secular affaires they are now grown up into state and must now ride on horse-backe that were wont to goe on foot preaching the Word Bed hist lib. 4. cap. 3. and must be respected above the ranke of ordinary Presbytery none must doubt of their truth nor question their words but they must be holden sacred as the word of a King Concil Brit. 196. An. 697. sine juramento sit irrefragabile Their presence must be a Sanctuary against all violence all Clerkes and religious houses must stoop under their power Ibid. 329. An. 816. their sentence must be definitive and thus advanced they must keep state viz. not go too farre to meet Princes in their approach towards them nor to light off their horses backs to doe Princes reverence at their meeting because they are equall to Princes and Emperours Concil 8. gen constant can 14. and if any Bishop shall behave himselfe otherwise and after the old rusticall fashion for such are the words of the Canon for disgrace done to theitr dignity they must be suspended so as by their own confession Bishops henceforth are Bishops of a new fashion that must incurre a note of infamy for shewing any gesture of humility to Princes which if any man will see more fully ler him peruse the Canon if he please But this is not sublime enough they must be not onely equall but in many respects superiour to Princes for in matters that concerne God Omnibus dignitatibus praesunt and more plainly Princes must obey them Mag. cent 8. cap. 9. Ex corde cum magna humilitate and this was allowed of by Offa the great in a legatine Synod And thus highly advanced Bishops are now consecrated to any worke and make every thing sacred Concil Brit. 182. An. 693. Ll. Sax. cap. 37. Oathes taken before them are of highest moment and therefore the triall of crimes before them and the acknowledgement of deeds of conveyance in their presence are without controll An. 928. Ll. Aethelst cap. 11. Concil Brit. Concil Brit. p. 197. An. 697. Their custody is
discoursed of the persons and precincts it now befals to touch upon the manner of the government of the Church by the Saxon Prelates which was not wrapped up in the narrow closet of private opinion but stated and regulated by publique Councell as well in the making as executing of lawes already made This course was learned from Antiquity Malmesb. gest pontif lib. 3. fo 263. and inforced upon them by a Roman constitution in the case that concerned Archbishop Theodore and Wilfrid upon this ground Quod enim multorum concilio geritur nulli consentientium ingerat scandalum These are most ordinarily called Synods although at the pleasure of the Relator called also Councels and are either Diocessan or Provinciall or Nationall and these either particular or generall Baronus An. 930. The generall consisted of all the Bishops and Clergy and such was the Synod under Archbishop Dunstan called The Nationall Synods were diversly called sometimes by the Pope sometimes by the King as the first moving occasion concerned either of them For Pope Agatho in a Synod at Rome ordered that a Synod should be called in Saxony viz England Sacrosancta authoritate nostra Synodali unitate Malmesb. gest pontif lib. 3. p 163. An. 680. and many Legatine Synods in succeeding times demonstrate the same That the Saxon Kings also called them upon occasion is obvious through all the Councels and needlesse to instance amongst so many particulars The Provinciall Synods were sometimes convocated by the King and sometimes by the Archbishop Concil Brit. p. 191 310 318. and sometimes joyntly The Diocessan were called by the Bishop In the Nationall and Provinciall sometimes Kings moderated alone sometimes the Archbishop alone and sometimes they joyned together Ibid. 316 318 387. The Assistants were others both of the Clergy and Laity of severall ranks or degrees and it seemeth that women were not wholly excluded for in a Synod under Withered King of Kent Abbatisses were present and attested the acts of that Synod together with others of the Clergy of greater degree The matters in action were either the making or executing of Laws for government and because few Lawes passed that did not some way reflect upon the King and people as well as the Clergy the King was for the most part present and alwaies the Lords and others Yet if the matters concerned the Church in the first act the King though present the Archbishop was neverthelesse president Concil Brit. 245 327 387. as it befell at a Synod at Clevershoe An. 747. and another at Celchith An. 816. And in the reigne of Edward the elder though the Synod was called by the King yet the Archbishop was president Concerning all which it may be in the summe well conceived that the penning of the Councels aforesaid either the Clergy being the pen-men were partiall or negligent in the setting down of the right form and that the Kings called these Assemblies by instance of the Archbishop and sometime presided in his owne person and sometimes deputed the Archbishop thereto The executing of Lawes was for the most part left to the Diocesan Synods yet when the cases concerned great men the more generall Councels had the cognisance and therein proceeded strictly sparing no persons of what degree soever Examples we finde hereof M Westm An. 955 958. Concil Brit. 479. amongst others of one incestuous Lord and two delinquent Kings Edwy and Edgar Nay they spared not the whole Kingdome for in the quarrell between Cenulphus the King and Archbishop Wilfrid the whole Kingdome was under interdict for six yeeres space and no Baptisme administred all that time Ibid. 332. Nor were they very nice in medling with matters beyond their Sphere even with matters of property for at a provinciall Councell for so it s called they bore all down before them even the King himselfe as in the case between Cenulphus the King and the Archbishop of Canterbury concerning the Monastery of Cotham Ibid. 319 332. Concil Brit. p. 334. The like also of another Synod concerning the Monastery of Westburgh It s true the Lords were present and it may be said that what was done was done in their right yet the Clergy had the rule and begat the child and the Lay-Lords onely might challenge right to the name This concurrence of the Laity with the Clergy contracted much businesse and by that meanes a customary power which once rooted the Clergy after they saw their time though not without difficulty turned both King and Lords out and shut the doores after them and so possessed themselves of the whole by Survivorship But of this hereafter The particular Diocesan Synods were as I said called by the Bishops within their severall Diocesses The worke therein was to preach the word as a preparative then to visit inquire of the manners of the Clergy in the worship of God Mag. cent 8. cap 9. and of all matters of scandall and them to correct These Synods were to be holden twice every yeere at certaine times and if they met with any matter too hard for them to reforme they referred it to the Provinciall or Nationall Synod CHAP. XIV Of Causes Ecclesiasticall AS the power of Synods grew by degrees so did also their worke both which did mutually breed and feed each other Heresie An. 446. Their worke consisted in the reforming and setling matters of doctrine and practice The first was the most ancient and which first occasioned the use of Synods In this Island the Pelagian Heresie brought in the first president of Synods that we have extant and herein it will admit of no deniall but in the infancy of the Church the teachers are the principall Judges of the nature of errour and heresie as also of the truth as the Church is the best guide to every Christian in his first instruction in the principles but after some growth there is that in every Church and Christian that makes it selfe party in judging of truth and errour joyntly with the first teachers And therefore it s not without reason that in that first Synod although Germanus was called Judex Beda hist l. 1. yet the people hath the name of Arbiter and t is said that they did contestare judicium Blasphemy Blasphemy was questionlesse under Church-censure but I finde no footsteps of any particular Law against it yet in Scotland a Law was made to punish it with cutting out the tongue of the delinquent Concil Brit. p. 341. An. 840. but it may be feared that neither the Saxons nor their Roman teachers were so zealous for the honour of Gods name as to regard that odious sinne unlesse we should account them so holy as that they were not tainted therewith and so needed no law But Apostacy was an early sinne and soon provided against Apostacy An. 314. Concil Brit. 41. Ibid. 376. the Church-censure was allowed of in Britaine before the Saxons Church had any breath
or no power by the Canon that was not under their controle neither in admission or deprivation of Presbyters or others determining of any cause Concil Brit. 260 263. nor passing sentence of excommunication and this could not but much hinder the hasty growth of Antichrists power in this Kingdome nor could it ever be compleated so long as the Synods had the chiefe power Neverthelesse the inthralled spirits of the Clergy and terror of the Papall thunderbolt in continuance of time surmounted this difficulty and Synods became so tame and easily led as if there had been but one Divell to rule amongst them all For if any quick eye or active spirit did but begin to peep or stir the Legate e latere soon reduced him into ranke and kept all in awe with a sub poena of unknown danger A third errour was the allowing of peculiars and exemptions of Religious Houses from ordinary jurisdiction and this was an errour in the first concoction a block in the way of Prelacy and a clogge to keepe it down This errour was soon felt and was occasion of much mutiny in the body Ecclesiasticall but exceeding profitable for Rome not onely in point of Revenue by the multitude of appeales but especially in maintaining a party for the Roman See in case the Prelacy of England should stumble at the Supremacy of Rome Otherwise it seemed like a wenne upon the body rather then any homogene member and without which certainly the English Prelacy had thriven much better and the Roman chaire much worse In all which regards I must conclude that the Prelaticall government in England was as yet like a young Bear not fully licked but left to be made compleat by time and observation CHAP. XVI Of the Saxon Common-weale and the government thereof and first of the King HAving already treated of the Saxon Church in order I am now come to the Republique which in all probability will be expected to be suitable to their originall in Germany whereunto having relation I shall first fall upon the persons and degrees abstractively then in their assemblies and lastly of their Laws and customes The Saxons in their first state in Germany were distributed into foure classes viz. the Nobles the free-men the manumitted persons and the bond-men Under the Nobility and from them arose one that was called a King of whom I shall speake a part the two last differed onely in the bare liberty of their persons and therefore may be comprehended under one head as they were in their originall A King amongst the Saxons in probability was anciently a Commander in the field an Officer pro tempore and no necessary member in the constitution of their state for in time of peace when the Common-wealth was it selfe the executive power of the Law rested much in the Nobility but in times of warre and in publique distractions they chose a Generall and all sware obedience unto him during the war Witikum gest Saxon. lib. 1. it being finished the Generall laid down his command and every one lived aequo jure propria contentus potestate But in their transmigration into Britaine the continuance of the war causing the continuall use of the General made that Place or Office to settle and swell into the condition of a King and so he that was formerly Dux became Rex there being no more difference in the nature of their places then in the sence of the words the one signifying to lead the other to governe so as he that formerly was a servant for the occasion afterwards became a servant for life yet clothed with Majesty like some bitter Pill covered with Gold to make the service better tasted Nor was the place more desirable if duly considered For first his Title rested upon the good opinion of the Free-men and it seemeth to be one of the best Gems of the Crown for that he was thereby declared to be most worthy of the love and service of the people Yet was the ground of their election so uncertaine as a man might imagine that sometimes there appeared more of the will then of the judgement in it that it might be said to be the more free for they neither excluded women nor children further then present occasions lead them The West-Saxons deposed Seburg their Queen because they would not fight under a woman M. Westm An. 672. M. Westm An. 912 919. Tacit. Cragius but the Mercians obeyed Elfled their Queen and under her fought valiantly with good successe against the Danes imitating the custome of the Sitones or Norwegians in Germany as they might borrow it from the Lacedemonians A custome it was so much the more honourable by how much it demonstrateth freedome and that the worth of the people rested not so much in the head as it s diffused through the whole body And it seemeth to runne in the blood of an English man even to this day to be as brave under a single Queen as under the most valiant King if not much more and still to strive to be as famous for the defence of Majesty whereever they set it as the Britons were of old Nor were they different in their respect of age from that of the sex for though after the death of Edmond Edwin or Edgar were to have succeeded in the Crown by the right of descent yet the States would not admit them because they were minors but the Mercians admitted Kenelme a child of seven yeeres old to be their King They likewise excluded not bastards till the Clergy interposed for they having wound themselves into the Councels of the Kingdome procured a constitution to back them in the election of Kings Legitime c. Let the Kings be legally chosen by Priests and Elders and not such as are begotten by adultery or incest Which constitution was made in a Legatine councell Mag. cent 8. cap. 9. An. 747. and confirmed by great Offa The rule of their election was the same with that in Germany viz. to elect the chiefest out of the chiefest family that is Tacitus the chiefest for worth not by descent yet the honour they bare to their brave Kings who had deserved well made some to honour their posterity and to chuse their eldest after their decease and so in time Crownes were taken up by Custome and election often times subsequent was accounted but a ceremony unlesse the people will dispute the point Secondly this election was qualified under a stipulation or covenant wherein both Prince and people were mutually bound each to other the people to defend their King which the Historian saith was praecipuum Sacramentum Tacitus and the Prince to the people to be no other then the influence of the Law sutable to that saying of Aethelstan the Saxon King Concil Brit. p 397. seeing I according to your Law allow you what is yours doe you so with me as if the Law were the sole umpire between King and people and unto
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
them irrecoverably Thus favourites instead of Cement between Prince and people becomming rocks of offence bring ruine sometimes to all but alwaies to themselves The King foresaw the storme and thought it safest first to cry truce with the people and come to agreement with them by common consent Prerog Reg. 17 Edw. 2. for the extent of his prerogative in certaine particular cases questionable and this summed up become a Statute for future times to be a ne plus ultra between the King and people Stat. de Homag The like agreement likewise was concerning services of tenants to their Lords and an oath framed to vindicate them from all incroachments Stat. Templar And something was done to calme the Clergy for the demolishing of the Templer Knights but the wound was incurable words are not believed if actions doe not succeed nor will oaths now made to bind Kings Bishops Councellors of State Sheriffs Majors Bailiffs or Judges to justice nor directions for regulating of Courts nor Ordinances against false moneys and weights nor all of them settle the people but they adhere to the Queen burning with jealousie against the King and both her selfe and the Lords with rage against the Spencers The King flies and being forsaken of the people the Lords the Clergy his own sonne and the wife of his own bosome and of God himselfe as the most absolute abject that ever swayed Scepter lost the same and being made a monument of Gods revenge upon inordinate desires in a King and of the English people being enraged not long surviving his demise he died a death meet to be forever blotted out of the thoughts of all subjects but to be had in everlasting remembrance of all Kings For if a Kingdome or Parliament misleads the King at the worst he is but misled by his Councell but if he be drawn aside by favourites he must thanke his own lust in the one he hath but the least share in the burthen in the other he must beare the whole CHAP. LXV Of the condition of the Nobility of England till the time of Edward the third NOw was prerogative mounted up to the highest pitch or endeavoured so to be either through the weaknesse or power of these Kings of whom the first and last had little to ground upon but their own will and the other I meane Edward the first had more wisdome and power but was otherwaies distracted by forraine and more urgent imployments so as the worke fainted before it came to its full period The contest was between the King and Barons who till those daies were rather the great and richer sort of men then Peeres although they also were of the number I am not so sharpe sighted as to reach the utmost intentions of the Lords but their pretences are of such publique nature as its plaine that if their private interest was wrapped up therein they were inseparable and I shall never quarrell the Lords aime at private respects whenas its plaine the publique was so importantly concerned and yet I will not justifie all that I finde written concerning their words and Actions M Paris An. 1217. The speech of the E. of Cornwall to his elder brother and King Henry the third I will neither render up my Castle nor depart the Kingdome but by the judgement of the Peeres and of Simon the E. of Leicester to the same King That he lied and were he not a King the Earle would make him repent his word and of the Lords that they would drive the King out of his Kingdome and elect another and of the E. Marshall to Edward the first that he would neither goe into Gascoine nor hang such other doe savour of passion especially that of the E. of Leicester and the Lords and may seem harsh and unmannerly and yet may admit of some alay if the generall rudenesse of the time the Kings injurious provocations and the passions of colerick men be weighed together Yet will not all these trench upon the cause nor render the state of the Lords too high or disproportionable to their place in the policy of the kingdome of England as things then stood I say it was not disproportionable for where the degree of a King was mounting up to such a pitch as to be above law the Lords exceeded not their places in pressing him with their councels to conforme to the laws and in maintaining that trust that was reposed in them in keeping off such sinister councels and invasions as might violate the laws and liberties or hinder the currant of justice concerning which I shall shortly state the case and leave it to the censure of others The government of the people of this Nation in their originall was Democraticall mixt with an Aristocracy if any credit be to be given to that little light of History that is left unto us from those ancient times Afterwards when they swarmed from their hive in forraine parts and came over hither they came in a warlike manner under one conducter whom they called a King whose power whatever in the warre yet in time of peace was not of that heigth as to rule alone I meane that whereas the Lords formerly had the principall executory power of lawes setled in them they never were absolutely devested of that power by the accesse of a King nor was the King ever possessed of all that power nor was it ever given to him but the Lords did ever hold that power the King concurring with them and in case the King would not concurre the people generally sided with the Lords and so in conclusion the King suffered in the quarrell From this ground did arise from time to time the wanderings of the people in electing and deposing their Kings during the Saxon times Nor did nor could the Norman Williams shake off this copartnership but were many times as well as other ensuing Princes perswaded against their own minds and plotted desires Nor can it otherwaies be supposed where Councels are setled for whereto serve they if notwithstanding them the King may go the way of his inordinate desire If the Lords then did appeare against these Kings whereof we treat in cases where they appeared against the laws and liberties of the people it was neither new nor so heinous as it s noised for them who are equally if not more intrusted with the Common-wealth then the King by how much the Councellors are trusted more then the councelled to be true for the maintenance of their trust in case the King shall desert his But the greater question is concerning the manner by threats and warre It s as probable I grant that the Lords used the one as the other for it was the common vice of the times to be rugged yet if we shall adde to what hath been already said first that Knight service was for the defence of the kingdome principally Secondly that the greatest power of Knight service rested with the Lords not onely in
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
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
we finde that Henry the third about the latter part of his reigne when his government grew towards the dregs he having in the Kingdome two hundred and fifty Baronies he summoned unto one of these Parliamentary meetings Gloss tit Baron but five and twenty Barons and one hundred and fifty of his Clergy Neverthelesse the law of King John was still the same and we cannot rightly read the law in such presidents as are rather the birth of will then reason Fourthly that no ayds were then granted but such as passed under the title Escuage or according there unto for the words are No Escuage shall be demanded or granted or taken but for redeeming the Kings person Knighting of his sonne or marriage of his daughter Nor is the way of assessing in these times different saving that instead of all the knights two onely are now chosen in every County the tenure as it seemeth first giving the title of that order and both tenure and order now changed into that title taken up for the time and occasion Fifthly that it was then the ancient custome and so used in the time of Henry the first that the advice of those then present was the advice of the whole and that their advice passed for a law without contradiction or notwithstanding the Kings negative voice for the words are The matter at that day shall proceed according to the councell of those that shall be present although all doe not come and therefore that clause in the Kings oath quas vulgus eligerit may well be understood in the future and not in the pretertence Last of all though not gathered from the text of this law whereof we treat yet being coincident with the matter it is observable that though the Clergy were now in their ruffle and felt themselves in their full strength yet there befell a posture of state that discovered to the world that the English held not the interest of the Clergy to be of such publique concernment or necessary concurrence in the government of the Kingdome Walsing An. 1297. as was pretended For the Clergy finding assessements of the Laity so heavy and that occasions of publique charge were like to multiply daily they therefore to save the maine stocke procured an inhibition from Rome against all such impositions from the Laity and against such payments by the Clergy and in the strength of this they absolutely refused to submit to ayd Edward the first by any such way although all the Parliament had thereunto consented And thus having divided themselves from the Parliament they were by them devided from it and not onely outed of all priviledge of Parliament but of all the priviledge of subjects into the state of praemuniri and thus set them up for a monument to future times for them also to act without the consent of those men as occasion should offer But Henry 3d. not satisfied with this ancient and ordinary way of assessement upon ordinary occasions tooke up that extraordinary course of assessement upon all the free men of the Kingdome which was formerly taken up onely in that extraordinary occasion of redeeming of the Kings or Lords person out of captivity and common defence of the land from piracy and under the title of Daneguelt which was now absolutly dead and hanged up in chains as a monument of oppression Neverthelesse it cannot be denied but that in former times the free men were as deeply taxed if not oppressed with payments to their Lords at such times as they were charged over to the King in the cases aforesaid as by the latter words of the law aforesaid of King John doth appeare and whereby its probable that the inferiour Lords were gainers The conclusion of the Charter of Henry the third the fame suiting also with the third observation foregoing doth not a little favour the same for its expresly set down that in lieu of the Kings confirmation of the Charter of liberties aforesaid not onely the Archbishops Bishops Abbots Priors Earles Barons and Knights but also the free men and all the Kingdome gave a fifteenth of all their moveables And thus have I summed up and compared both the copies of the grand Charters of Englands liberties saving two particulars inserted into the Forest laws of Henry the third wherein if any thing had been new and unreasonable King John might have colour to except against them as extorted by force and Henry the third might as he was advised plead nonage M. Paris An. 1227. and so they might have been choked in their birth but being all consuetudines as in the conclusion they are called and Kings ashamed to depend upon such frivolous exceptions it may be wondred what might move them to adventure so much bloodshed and themselves into so many troubles to avoyd their own acts unlesse the writing of them were an obligation acknowledged before the world and they resolving secretly to be under none were loath to publish the same to all men It s a strange vanity in great men to pretend love to justice and yet not indure to be bound thereto when as we see that God himselfe loves to be bound by his word and to have it pleaded because he delights as much to be acknowledged true in performing as good in promising But neither was King John or Henry the third of this spirit faine they would undoe but could not It s true it was at the first but a Kings charter of confirmation and had Kings been patient therewith it might have grown no bigger but by opposition it rooted deeper and grew up unto the stature of a Statute and setled so fast as it can never be voided but by surrender from the whole body Marlbr cap. 5. Having thus summed up the liberties of the subjects and free men of England under this Charter I shall make some appendix hereunto by annexing a few additionals in these times established and although they come not within the letter of the Grand charter yet are they subservient thereunto And first concerning the King and this either as he is King or as he is Lord. As King he had these prerogatives above all Lords Prerog Reg. cap. 9. The King shall have the custody of fooles and ideots lands for their maintenance and shall render the same to their heires And concerning mad-men and lunaticks cap. 10. the King shall provide a Baylisse for their maintenance rendring account to them when they are sober or to their administrators It is no lesse liberty or priviledge of the people that fooles and mad persons are to be ordered by tutors then children and therefore this may be annexed to the rest of the liberties as well as the other Neverthelesse it seemeth that the Laws tooke them into their regard in respect of their estates which might be abused to the prejudice of the publique rather then out of respect had to their persons Now because there is a difference between the disability
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
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
Church-government during these times fol. 146. XVIII Of the Court of Chancery fol. 162. XIX Of the Courts of Crown Plas and Common Law fo 165 XX. Concerning Sheriffs fol. 168. XXI Of Justices and Lawes concerning the Peace fol. 170. XXII Of the Militia during these times fol. 175. XXIII A short survey of the Reignes of Edward the fourth Edward the fifth and Richard the third fol. 181. XXIV Of the Government in relation to the Parliament fol. 187. XXV Of the condition of the Clergie fol. 191. XXVI A short sum of the Reignes of Henry the seventh and Henry the eighth fol. 194. XXVII Of the condition of the Crowne fol. 202. XXVIII Of the condition of the Parliament in these times fol. 223. XXIX Of the power of the Clergy in the Convocation f. 229. XXX Of the power of the Clergy in their ordinary Jurisdiction fol. 232. XXXI Of Judicature fol. 241. XXXII Of the Militia fol. 245. XXXIII Of the Peace fol. 253. XXXIV Of the generall Government of Edward the sixth Queen Mary and Queen Elizabeth fol. 259. XXXV Of the Supream power during these times fol. 268. XXXVI Of the power of the Parliament during these times fol. 277. XXXVII Of the Jurisdiction Ecclesiasticall during these last times fol. 283. XXXVIII Of the Militia in these later times fol. 290. XXXIX Of the Peace fol. 297. XL. A summary Conclusion upon the whole matter fol. 300. A PREFACE CONTAINING A Vindication of the Ancient way of the Parliament OF ENGLAND THE more Words the more Faults is a divine Maxime that hath put a stop to the publishing of this second part for some time but observing the ordinary humor still drawing off and passing a harsher censure upon my intentions in my first part then I expected I doe proceede to fulfill my course that if censure will be it may be upon better grounds when the whole matter is before Herein I shall once more minde that I meddle not with the Theologicall right of Kings or other Powers but with the Civill right in fact now in hand And because some mens Pens of late have ranged into a denyall of the Commons ancient right in the Legislative power and others even to adnull the right both of Lords and Commons therein resolving all such power into that one principle of a King Quicquid libet licet so making the breach much wider then at the beginning I shall intend my course against both As touching the Commons right jointly with the Lords it will be the maine end of the whole but as touching the Commons right in competition with the Lords I will first endeavour to remove out of the way what I finde published in a late Tractate concerning that matter and so proceede upon the whole The subject of that Discourse consisteth of three parts one to prove that the ancient Parliaments before the thirteenth Century consisted onely of those whom we now call the House of Lords the other that both the Legislative and Judiciall power of the Parliament rested wholly in them lastly that Knights Citizens and Burgesses of Parliament or the House of Commons were not knowne nor heard of till punier times then these This last will be granted Viz. That these severall titles of Knights Citizens and Burgesses were not known in Parliament till of later times Neverthelesse it will be insisted upon that the Commons were then there The second will be granted but in part Viz. That the Lords had much power in Parliament in point of Jurisdiction but neither the sole nor the whole The first is absolutely denyed neither is the same proved by any one instance or pregnant ground in all that Book and therefore not cleerly demonstrated by Histories and Records beyond contradiction as the Title page of that Book doth hold forth to the World First because not one instance in all that Book is exclusive to the Commons and so the whole Argument of the Discourse will conclude Ab authoritate Negativa which is no argument in humane testimony at all Secondly the greatest number of instances in that Booke are by him supposed to concerne Parliaments or generall Councils of this Nation holden by the Representative thereof whereas indeed they were either but Synodicall Conventions for Church matters whereunto the poore Commons he well knoweth might not come unlesse in danger of the Canons dint or if they did yet had no other worke there then to heare learne and receive Lawes from the Ecclesiasticks And the Lords themselves though present yet under no other notion were they then as Councell to the King whom they could not cast out of their Councell till after Ages though they often endeavoured it Thirdly the Author of that Tractate also well knoweth that Kings usually made Grants and Infeodations by advice of the Lords without the ayde of the Parliament And it is no lesse true that Kings with the Lords did in their severall ages exercise ordinarily Jurisdiction in cases of distributive Justice especially after the Norman entrance For the step was easie from being Commanders in Warr to be Lords in peace but hard to lay downe that power at the foot of Justice which they had usurped in the rude times of the Sword when men labour for life rather then liberty and no lesse difficult to make a difference between their deportment in commanding of Souldiers and governing of Countrey-men till peace by continuance had reduced them to a little more sobriety Nor doth it seeme irrationall that private differences betweene party and party should be determined in a more private way then to trouble the whole Representative of the Kingdome with matters of so meane concernment If then those Councils mentioned by the Author which concerne the Kings Grants and Infeodations and matters of Judicature be taken from the rest of the Presidents brought by him to maintaine the thing aimed at I suppose scarce one stone will be left for a foundation to such a glorying Structure as is pretended in the Title page of that Booke And yet I deny not but where such occasions have befalne the Parliament sitting it hath closed with them as things taken up by the way Fourthly It may be that the Author hath also observed that all the Records of Antiquity passed through if not from the hands of the Clergy onely and they might thinke it sufficient for them to honour their Writings with the great Titles of Men of Dignity in the Church and Common-wealth omitting the Commons as not worthy of mention and yet they might be there then present as it will appeare they were in some of the particular instances ensuing to which we come now in a more punctuall consideration The first of these by his owne words appeare to be a Church-mote or Synod it was in the yeare 673. called by the Arch-Bishop who had no more power to summon a Parliament then the Author himselfe hath And the severall conclusions made therein doe all shew that the people had no worke
rigged according to the Grecian guize it may be well supposed that there is some consanguinity between the Saxons and the Grecians although the degrees be not known The people were a free people governed by Lawes and those made not after the manner of the Gauls as Caesar noteth by the great men Caes com but by the people and therefore called a free people because they are a Law to themselves and this was a priviledge belonging to all the Germans as Tacitus observeth in cases of most publique consequence de majoribus omnes like unto the manner both of the Athenians and Lacedemonians in their Concio Histor Germ. Plutarch vit Solon Lycurg For which cause also I take the Gauls to be strangers in blood unto the Britons however nigh they were in habitation That some matters of action especially concerning the publique safety were by that generall vote concluded and ordered seemes probable by their manner of meeting with their weapons But such matters as were of lesse concernment the Councell of Lords determined de minoribus Principes Albinus Sax. 72. saith the same Authour Their Countrey they divided into Counties or Circuits all under the government of twelve Lords like the Athenian territory under the Archontes Xenophon These with the other Princes had the judicatory power of distributive justice committed to them Tacit. together with one hundred of the Commons out of each division The election of these Princes with their commission was concluded inter majora by the generall assembly and they executed their commission in circuits like unto the Athenian Heliasticke or Subdiall Court Emius which was rurall and for the most part kept in the open ayre in briefe their judicials were very sutable to the Athenian but their military more like the Lacedemonian whom above all others in their manners they most resembled In their Religion they were very devout saving that they much rested in the reverence they bare to their Priests whom they made the moderator of their generall Assembly their Judge advocate and executioner in Martiall Law therein submitting to them as unto Gods instrument They worship an invisible and an infinite Diety mans flesh is their sacrifice of highest account and as often as they make inquiry by lots they doe it with that solemne reverence as may put all the Christian world to the blush precatus Deos coelumque suspiciens and this done by the Priest of the Town if it be in publique causes or otherwise if private then by the master of the family so as they had family-worship as well as publique These things I note that it may appeare how nigh these invited guests resemble the old Religion of the Britons Avent Anal. Bowr 1.10 Bruter in Tacit. 125. and how probable it is that this Island hath from time to time been no other then as a sewer to empty the superfluity of the German Nations and how the influence of these old principles doth worke in the fundamentall government of this Kingdome to this present day These are the instruments chosen by God and called by the Britaines to be their deliverers from their enemies which they did indeed yet not swayed thereto by love of justice or compassion for if writers say true they were no better then high-way men both by Sea and Land Amian but by their love of spoyle and prey and by the displeasure of God against a dissolute people They professe friendship neverthelesse in their first entrance but espying the weaknesse of the Britons and feeling the strength of the Picts and finding the Land large and good they soone pickt quarrels with their Hoast made peace with the Picts and of fained friends becomming unfained foes to the Britons scattered a poore remnant of Christians some to the furthest corners of the Kingdome others into forraine Nations like so many seedesmen to sow the precious seed of life in a savage soile And those few that remained behind profiting under much misery by their doctrine and good example yeelded better blessings unto their new come guests then they either expected or desired And thus the miseries of poore Britaine became riches of mercy to the North and Easterne people and the ruines here the foundations of many famous Churches elsewhere Nor yet was mercy from the Britons utterly taken away nor their blood drawn out to the last drop or their name quite blotted out of the booke of fame for whereas two things make men miserable viz. the heavinesse of the burthen without and the failing of the heart within and Gods ordinary way of redresse of the former beginneth in taking away the later thus dealt he with the Britons for in danger as want of strength breeds feare and that by extreamity dispaire so dispaire oftentimes revives into a kind of rage that puts strength forth beyond reason I say beyond reason for cause cannot be given thereof other then Gods extraordinary dispensation in a judiciary way when he seeth the stronger to wax insolent over the weaker Thus the Britons fled from the Picts so long as they had any hope of reliefe from the Saxons but being become their enemies and pursuing them to the low water marke that in all reason they must either drinke or bleed their last then their courage revived and by divers victories by the space of 200 yeeres God stopped the hasty conquest of the Saxons the result whereof by truces leagues commerce conversation and marriages between these two Nations declared plainly that it was too late for the Saxons to get all their bounds being predetermined by God and thus declared to the world In all which God taming the Britons pride by the Saxons power and discovering the Saxons darknesse by the Britons light made himselfe Lord over both peoples in the conclusion CHAP. V. Of Austins comming to the Saxons in England his entertainment and worke DUring these troublesome times came a third party that wrought more trouble to this Isle then either Pict or Saxon for it troubled all This was the Canonicall power of the Roman Bishop now called the Universall Bishop For the Roman Empire having removed the Imperiall residence to Constantinople weakned the Westerne part of the Empire and exposed it not onely to the forraine invasions of the Goths Vandals Herules Lombards and other flotes of people that about these times by secret instinct were weary of their owne dwellings but also to the rising power of the Bishop of Rome Naucler 505. and purposely for his advancement Who by patience out rode the stormes of forraine force and tooke advantage of those publique calamitous times to insinuate deeper into the consciences of distressed people that knew no other consolation in a plundred estate but from God and the Bishop who was the chiefe in account amongst them the beauty of the Bishop of Rome thus growing in the West made him to out-reach not onely his owne Diocesse and Province but to minde a kind
accesse of power not to make dispence with or alter Laws but to execute and act the Laws established and against this power there was no rising up so long as it like an unfethered Arrow gadded not at random It s true the Church men or Prelates checked them often but could never give them the mate For peace sake Kings many times yeelded much yet would no King of Saxon principles allow of any Canon that extolled the Clergies authority above that of Kings and though the placing and displacing of Bishops seemed to be all Ecclesiasticall worke yet would not the Kings altogether connive as the examples of Ina in placing a Bishop in Wels Offa in making two Provinces of one Malmesb. gest pontif lib. 3. gest Reg. lib. 1. cap 4. M. Paris An. 1095 Cenulphus in restoring Polydorus Edfrid in deposing Wilfrid and Edward the Confessor in making Robert Norman Archbishop of Canterbury may induce into opinion and for their own safety sake the Prelats thought it wisdome for them sometimes to stoop to that power that at other times they must be beholding to and therefore though in Synodicall disputes they would hold with the Canon yet in matters of action would suite with the occasion and thereby taught Princes to account of Canons but as Notions and politiquely to put the honour of Commissioners upon these men thus the current of both powers passing in one chanell made the people drinke double Beere at once the turns both of Pope and King were competently served and these men had the honour of the two-handed Sword and all seemed composed into a faire compromise But the Popedome finding its authority becalmed indured this but as a burden till Pope Nicolas the seconds time who by the like trick commended all to the Crown as from the Papall benediction For Edward the Confessor upon his foundation of the Abby of Westminster sent to the Pope for his allowance and confirmation of what he had done or was to doe and to make way for the more favour sent presents and a confirmation of Romescot The Pope was so inflamed with such an abundant measure of blessing as he not onely granted the Kings desire but also discharged that Abbey from ordinary jurisdiction made it a peculiar subject onely to the Kings visitation and concluded his Bull with this horne Vobis vero posteris vestris regibus committimus advocationem tuitionem ejusdem loci omnium totius Angliae Ecclesiarum Concil Brit. p 634. An. 1066. vice nostra cum concilio Episcoporum Abbatum constituatis ubique quae justa sunt How the King took the conclusion I finde not but he could never make better use then by way of estoppel unlesse he meaned to sacrifice his own right as a thankoffering to a shadow which I finde not that he or his next successors ever did but as touching the Laity Histories doe not touch upon any conceit of withdrawing Monarchicall power It s true Kings had their excesses yet all was amended either by the body of the people when they pleased to examine the matter Ll. Canut cap. 67. or by the Princes faire complyance when complaint was made and so the Law was saved And thus upon all the premises I shall conclude that a Saxon King was no other then a primum mobile set in a regular motion by Lawes established by the whole body of the Kingdom CHAP. XVII Of the Saxon Nobility THe ancient Saxon Nobility in Germany were the chiefest in action both in war and in peace That ranke of men was continued by three means viz. by birth or blood by valour and by wisdome the first was rather at the first a stemme arising out of the first two then a different degree or kind for Noble blood was at the first innobled by brave actions afterward continued in their honour to their posterity till by as base courses it was lost as it was gained by worthy atchievements these were called Adelingi The nobility of action consisted either in matters of war or of peace Those of peace arose principally from wisdome which being gained for the most part by much experience were therefore called Aldermanni or elder men The Nobility of war arose somewhat from valour or courage with wisdome but more from good successe for many brave and fortunate Commanders have not been very daring Ll. Edw. cap. 35. Nitard lib. 4. and the bravest spirits though wise have not been ever honoured with good successe these were called Heretochii Neverthelesse all these names or titles were used promiscuously in following times and all called Nobiles but both that and Duces Satrapae and Comites were all of the Roman Dialect as the former were of the Saxon. Time also brought others into this Honourable band viz. The great Officers of the Kings houshold and their attests are found amongst the Kings charters amongst the Nobles And that much advanced the price of Kings for he that is worthy to be not onely Lord above Nobles but master of some may by a little curtesie prevaile over all This starry Heaven had severall Orbes Tacitus some so high as in common esteem they were next the Imperiall Heaven having a tincture of Royall blood and at the next door to the Throne Others though not of so clear light had neverthelesse no lesse powerfull influence upon the people but rather more by how much more nigher to them Their power in matters of peace or government of the Common-weale was exercised either collectively or apart and severally In their meetings they ordered the smaller emergencies of the publique in convocating and directing the people De minoribus rebus consultant principes Tacitus These minora are such as are subservient to the majora and pro hic nunc require sudden order touching any particular part or member of the Common-wealth At other times they visited their severall Territories or circuits hearing and determining matters of controversie and executing judgement according to the known Lawes Principes jura per pagos vicosque reddunt Yet they had comites of the Countrey joyned with them Tacitus whereof afterward This was their course in German Saxony but in England the new stemme of Kingly power arising higher then all the rest sucked much from them and kept them under for the judiciary power was in time drawn up into the Regall order and the Lords executed the same as deputies from and under him designed thereto by Writs and Commissions as its more particularly noted of King Alfred Miror cap. 5. Sec. 1. The Lords thus lessened in their judiciary power carried the lesse authority in their votes and consultations The King was a perpetuall moderator in that worke and it was no small advantage he had thereby to sway the Votes Men that are advanced if they have any excellency soon gain admiration and it s a hard thing for one that hath yeelded his heart to admiration to keep it from
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
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
Chaplaine was disturbed enjoyned the Abbat to revoke his presentation upon this ground Cum igitur c. in English thus Antiq. Brit. Eccles fo 209. Whereas therefore that decree bindeth not our Clerks in our service in regard that the Kings and Princes of England from time to time have enjoyed that liberty and prerogative that their Clerks whiles they attend upon their service shall not be constrained to undertake holy things or to be personally resident on their benefices c. And if this present law be considered whereof we now treat which tooke leave to enact a sence upon a former Canon so long since made and which is all one to make a generall Councell will or nill it to tread in the steps of an English Parliament or which is more mean to speak after the sence of an English Declaration that had not yet attained the full growth of a Statute 30 aff pl. 5. as was then conceived it will evidently appeare that the power of a Councell made up of a mixture of a few votes out of severall nations or the major part of them being unacquainted with the Laws and customes of Nations other then their own was too meane to set a law upon any particular Nation contrary to its owne originall and fundamentall Law And as the voters sent to the generall Councels from England were but few so neither were the Proctors as may appeare from this that Pope Innocent out of his moderation if we may believe it and to avoyd much expence as he saith did order that the number of Proctors in such cases should be few but in truth the times then were no times for moderation amongst Popes and their Officers and therefore it was another thing that pinched for multitude of Proctors if their number had not been moderated might perhaps if not prevaile yet so blemish the contrary party that what the Pope should get must cost him losse of spirits if not blood and although the Bishops being fast friends to the Pope by vertue of their oath did prevaile in power and the Pope had the controll of the Councell yet the exceeding number of the Proctors on the contrary might render their conclusions somewhat questionable in point of honesty as being made against the minds of the greater number of persons present though their votes were fewer To avoyd this difficulty therefore for more surety sake the Popes enlarged the number of the voters for whereas it seemeth to be an ancient rule that onely foure Bishops should goe out of England to the generall Councell Hoveden An. 1179. in after ages not one Bishop could be spared unlesse in cases of great and emergent consequence as may appeare by the Popes letter to Henry the third and the case required it for the oppressions of the Pope began to ring so loud M. Paris An. 1245. as the holy chaire began to shake Neither did Kings confine themselves to any certaine number of Proctors notwithstanding the Popes moderation but as the case required sent more or lesse as unto that Councell at Pisa for the composing and quieting that great schisme in the Popedome Henry the fourth sent solemne Embassadours and with them nigh eighty in all But unto the Councell at Basell Henry the sixth sent not above twelve or thirteene as Mr Selden more particularly relateth Spicil 215. And unto the councell at Lions formerly mentioned the Parliament sent but six or seven to remonstrate their complaints of the extorsions of the Court at Rome their Legates and Emissaries The summe of all will be that the Acts of generall Councels were but councels which being offered to the sence of the Parliament of England might grow up to the degree of Lawes if the Parliament liked them Neverthelesse Nation all Synods Synods in England undertooke the quarrell of Generall councels for Archbishop Peckham in a Synod 1280. enjoyned the constitutions made in the Councell at Lions to be observed under a curse without consultation first had with the Parliament or before he knew whether they would be right or wrong and before him Boniface made constitutions in opposition to the customes of the Kingdome so as the matter was now come to a kinde of contest whither Synods or Parliaments should hold supremacy in doubtfull cases concerning the limits of the Ecclesiasticall and temporall power for henceforth Kings must bid adieu to the Synods and sit no more amongst them and Synods now thinke themselves free to consult and determine what they please without speaking under correction nor was there other remedy left to Kings but threats by Writs directed to the Bishops firmiter inbibendo quod sicut Baronias quas de Rege tenent deligunt nullo modo praesumunt concilium tenere de aliquibus quae ad coronam Regis attinent vel quae ad personam Regis vel statum suum vel statum concilii sui contingunt Rot Parliam 18 H 3. num 17. quod si fecerint Rex inde se capiet ad Baronias suas And this prevailed so farre as the Bishops durst not adventure too farre least they should goe beyond their guard and therefore they come and aske leave of the Parliament in cases that trenched upon the Law of the Kingdom as they did in the case of bastardy wherein they would have had their consent that children borne before marriage to be made legittimate by the marriage subsequent Stat. Merton cap. 9. and yet they could not prevaile for they were answered Nolumus leges Angliae mutari notwithstanding that the Canon law and the laws of the Normans sided with them and so they obtained not their desire although they still retained the triall of generall bastardy unto themselves Neverthelesse the times were such as Kings being too weakly assisted by the people and the Clergy strongly seconded by the Pope they tooke advantage of those times of distraction so as to hold themselves no further obliged to the King then the Pope and their own covetousnesse would allow them and to make all sure they had setled it so farre as they were able by a constitution that the Clergy were not bound to ayd the King Papa inconsulto Antiq. Brit. and they put it in practise in a Synod under Archbishop Winchelsie Anno 1295. in the time of Edward the first and although the King prevailed in the conclusion at that time yet from the times of Henry the third the Clergy for future times granted their aides to the King by themselves and a part from the rest of the body of the Kingdome and held themselves not bound by any ayd granted by the Parliament albeit that their own ayds granted in their Synods were not obligatory unto the body of the Clergy in this Kingdome unlesse first allowed and confirmed by the Parliament And thus is England become like a two bodied monster supported with one paire of legs CHAP. LXVII Of the condition of the free men of England of the grand
that if the party appealed was acquitted the appealor should not onely render dammages but be imprisoned for a yeere The County court shall be holden at the wonted time cap. 36. The Torne shall be holden at the accustomed place twice in the yeere viz. after Easter and Michaelmas The view of Frank pledges shal be holden at Michalmas The Sheriffe shall not extort The Sheriffs Courts had now lost somewhat of their jurisdiction though for time and place they are confirmed statu quo to the end that through uncertainty thereof the suiter might not make defaults and be amerced yet they lost much of their respect within the compasse of these few yeeres by two laws Merton cap. 10 the one of which made at Merton allowed all suiters to the rurall Courts to appeare by proxy or atturney which it seemeth had power to vote for the masters in all cases publique and private and did not onely themselves grow into parties and maintenance of quarrels and so spoiled these Courts of their common Justice but rendred the freemen ignorant and carelesse of the common good of the Country and given over to their own private interest And though the corruption of justice was soon felt West 1. c. 33. and against it a law was provided viz. that the Sheriffe should not allow of such corrupt atturnies yet this was no cure to the free men who were still suffered to wax wanton at home albeit that they were discharged from doing their suite in all other Hundreds but that wherein they dwell Marlbr cap. 10. The second law that tooke away much honour from these Courts was that law at Marlbridge Ibid. that discharged the Baronage of England and the Clergy from their attendance at such service and this also opened the doore wider to oppression for where greatnesse is it carieth therewith honour from the meaner sort and a kinde of aw and stop unto the minds of such men that otherwise would riot without restraint and though it might also be said that the pretence of great men in such Courts would oversway the meaner and make strong parties yet it must also be acknowledged that these parties being greater are the fewer and doe not so generally corrupt all sorts as the corruption of the meaner sort doe it s said by the wise man where the poore oppresse the poore its like a raging raine that leaves no food The last branch in this Law is an inhibition to the Sheriffe from extortion and surely there was great need and much more need then ever now that the Lords and Clergy are absent It was thought that the great occasion of the Sheriffs oppression was from above I meane from the King that raised the vallews of the farme of Counties granted to the Sheriffs Artic. super cart cap. 13 14. Stat. de vice com An. 9 E. 2 for in those daies Shieriffs gave no accounts as of later times they have done and therefore the Charter of King Iohn between the 17 and 18 chapter inserteth this clause Omnes commitat Hundred Wapentag Trethingi sint ad antiquas firmas absque ullo incremento exceptis Dominicis Maneriis nostris But this did not worke the worke although it tooke away occasion for the humour was fed from within and turned to a sore upon that place that could never be cured to this day Nor could the wisdome of times finde other helpe to keepe the same from growing mortall but by scanting the diet and taking away that power and jurisdiction which formerly it enjoyed cap. 37. The 37 Chapter hath been already noted in the Chapter of the Clergy next foregoing cap. 38. Escuage shall be taxed as was wont in the time of Henry the second The Charter of King John hath superadded hereunto this ensuing provision There shall be no Escuage set in the Kingdome except for the redeeming of the Kings person making of his eldest sonne a Knight and one marriage of his eldest daughter and for this there shall be onely reasonable ayd And in like manner shall the ayds of the City of London be set And for the assessing of Escuage we will summon the Archbishops Bishops Abbots Earles and greater Barons of the Kingdome specially by our severall Writs and will cause to be summoned in generall by our Sheriffs and Bayliffs all other our tenants in capite to be at a certaine day after forty daies at the least and at a certaine place and we will set down the cause in all our Writs And the matter at the day appointed shall proceed according to the councell of those that shall be present although all that were summoned doe not come And we will not allow any man to take ayd of his free men unlesse for redemption of his body and making his eldest sonne a Knight and one marriage for his eldest daughter and this shall be a reasonable ayd onely Thus farre the Charter of King John concerning this point of taxe or assessment and if the History saith true the Charter of Henry the third was one and the same with that of King John then either this was not left out in Henry the thirds Charter in that Historians time M. Paris or if it was omitted in the originall it was supposed to be included in the generall words of the Law as being accustomed in times past and then these particulars will be emergent First that the ayds and Escuage in Henry the firsts time were assessed by the same way with that in this Charter of King John for that all the quarrell between the Lords and King John was concerning the charter of Henry the first which the Lords sware to maintaine Secondly M Paris An. 1214 1215 25 Edw. 1. cap. 6. 34 Edw. 1. cap. 1. West 1. cap. 36. that neither ayds nor escuage were granted or legally taken but by Act of Parliament although the rate of them was setled by common custome according to the quantity of their fee. Thirdly that some Parliaments in those times as concerning such matters consisted onely of such men as were concerned by way of such charge by reason of their tenancy for escuage only concerned the tenants by Knights service and therefore those onely were summoned unto such Parliaments as onely concerned Escuage nor had the City of London nor the Burgesses right to vote in such cases it is said p. 258. And thus the Forrest laws that were made in the time of Ri. 1. were made by the consent of Archbishops Hoveden 445. Bishops Abbots Earls Barons and Knights of the whole Kingdome for what the great men gained they gained for themselves and their tenants And the truth is that in those times although publique dammage concerned all yet it was ordinary for Kings to make a shew of summoning Parliaments when as properly they were but Parliamentary meetings of some such Lords Clergy and others as the King saw most convenient to drive on his own designe and therefore
Saxon p. 68 Norman p. 133 Hundred Setena Saxon p. 68 I IDolatry punished by the Saxons p. 97 Normans p. 138 Vide Blasphemy Imprisonment Saxon p. 100 Norman p. 151 Incest punished by the Saxons p. 101 Indictment Saxon law p. 85 Infancy amongst the Saxons p. 88 After p. 198 Infangtheoff Saxon p. 74 Inheritance Saxons p. 102 Normans p. 160 After p. 196 c. Inquest Saxon p. 91 Interdict in the Saxon time p. 38 After p. 182 Intent punished by the Normans p. 151 Intestate Saxon law p. 109 Norman p. 143 Afterward 232 c. 264 c. John p. 170 Judgement vide execution Judges vide Justice Judicatory 189 c. Jury grand petit amongst the Saxons p. 91 Justice and their Courts amongst the Saxons p. 84 Chiefe Justice p. 191 Judges or Justices itinerant after the Normans p. 192 199 284 K KIngs amongst the Saxons election continuance covenant maintenance power in Church-matters p. 46 c. 56 Amongst the Normans election 113 c. Covenant 116. c. Power in Church matters p. p. 123 c. In the times of Steven Henry the second Richard the first and John Election p. 165 Power in Church matters p. 176 c. In the times of Henry the third Edward the first and Edward the second Succession p. 208 c. Power in Ecclesiasticall matters p. 225 c. 233 In Civill affaires 277 c. 317 c. Knightservice amongst the Saxons p. 76 Marriage p. 146 202 255 Acquittall p. 149 Widdows p. 256 L LAnguage endeavoured to be changed by the Normans p. 161 Lashlight amongst the Saxons p. 99 Lecturers amongst the Saxons p. 28 Leet amongst the Saxons p. 78 Legierwit amongst the Saxons p. 100 Livery and seisin amongst the Saxons p. 108 London p. 257 Lords-day maintained by the Saxons p. 98 By the Normans as plea of the Crown p. 139 Lords their councels amongst the Saxons p. 62 84 From the Conquerours time till Henry the third p. 174 Lorica what it is p. 309 Lucius p. 9 c. Luminaries amongst the Saxons p. 31 Lunacy vide fooles M MAgna carta p. 172 Renewed with the curse p. 210 Stat. c. p. 253 Cap. 35. p. 244 Cap. 37. p. 245 Mainpernours by the Saxons p. 85 87 By the Normans p. 151 Maimes punished by the Saxons p. 100 Manbota amongst the Saxons p. 99 Mannors amongst the Saxons p. 75 Normans p. 134 Manslaughter punished by the Saxons p. 99 Normans p. 140 After p. 195 Manumission p. 137 Marriage portion vide Dower Marriage vide Knightservice Marchants Magna carta p. 272 Marches amongst the Saxons p. 72 Normans p. 131 Markets amongst the Saxons p. 80 Normans p. 143 Vide Townships Marshals Court p. 285 Matrimoniall causes amongst the Saxons p. 41 Medietas linguae amongst the Saxons p. 92 Metropolitan amongst the Saxons p. 23 Micklemote amongst the Saxons p. 57 The Primacy of Canterbury setled there p. 36 Mils tithed p. 240 Militia amongst the Saxons p. 63 The Normans p. 152 During the Kings next ensuing p. 205 During Henry 3. Edward 1. Edward 2 p. 294 Mint amongst the Saxons Normans p. 137 Monastry admission p. 183 Mortdancester p. 198 261 Mortmaine p. 245 Mortuary amongst the Saxons p. 32 N NEwes scandalous p. 292 Nightwatches by the Normans p. 141 After p. 304 Nobility amongst the Saxons p. 53 From the Normans time p. 172 From King Johns time p. 221 Normans their title c. p. 113 c. Not conquest p. 155 Novell disseisin p. 199 261 O OBlations cognisance p. 235 Odio Atia p. 269 c. Officers power greater then kings p. 173 Ordeale amongst the Saxons p. 89 Ordinaries intestate p. 232 Outfangtheoff amongst the Saxons p. 74 Ostiaries amongst the Saxons p. 28 Othes p. 246 271 P PAlatine county amongst the Saxons p. 73 Parishes amongst the Saxons p. 35 Parliaments p. 120 278 Parks trespasses p. 292 Passage p. 272 Peace amongst the Saxons p. 100 The Normans p. 140 After p. 300 Penall Laws Saxons p. 96 Normans p. 138 After in the time of Henry 2. p. 193 After p. 286 Perjury punished by the Saxons p. 40 101 Peeres amongst the Saxons p. 93 Peterpence amongst the Saxons p. 32 The Normans p. 139 Pledges p. 150 Plough almes Saxons p. 32 Popes power p. 19 177 184 Oppressions of the Clergie p. 225 Prelacy in England not till Constantines time 11. came from Rome by Austin p. 21 c. Suddenly grown p. 44 Praecipe Mag. carta p. 268 Priors vide Abbats Presbyters amongst the Saxons p. 27 Presentment amongst the Saxons p. 86 Priority vide Tenure Prohibitions p. 228 233 Protectour p. 209 Provinces amongst the Saxons p. 35 Purveyance p. 244 265 c. Q QUare Clausum fregit Saxon p. 101 Quare excommunicavit p. 227 Quare non admisit ibid. Quarentine p. 256 282 Quo warranto p. 244 R RAnsome p. 94 260 Rape Norman p. 141 After p. 195 c. 288 Reasonable part 257 264 Vide Dower Redemption vide Ransome Redesseisin p. 292 Reliefe Norman p. 145 After p. 201 Religious houses vide Abbeys Replevy Norman p 142 259 Richard the first p. 169 Romans entry p. 5 The Papalty with seven degrees of their Church Officers p. 29 Seven sorts of Church maintenance p. 35 Romescot Romesfeogh vide Heardpenny Robbery punished by Saxons p. 101 By Normans p. 142 After p. 193 195 287 304 S SAbbath day Saxon law p. 98 Sacriledge Saxon law p. 41 Sanctuary p. 139 183 242 Saxons in England mingled p. 90 Seale vide Deeds p. 107 Sheriffs Saxon p. 65 Extortion p. 275 286 Symony punished by the Saxons p. 41 Sorcery vide Witchery Soulshot Saxon p 32 Socage Saxon p. 77 Steven his government p. 165 Stat. Magna carta vide Magna carta Merton cap. 1 2 6 7 p. 156 Cap. 1. p. 282 Cap. 3. p. 292 Cap. 9. p. 252 Cap. 10. p. 275 Cap. 11. p. 295 Marlbridge cap. 1 2 3. p. 259 Cap. 4. ibid. Cap. 5. p. 280 Cap. 8. p. 292 Cap. 9. p. 264 Cap. 10. p. 229 275 Cap. 15. p. 259 Cap. 16. p. 254 Cap. 17. p. 282 Cap. 19. p. 262 Cap. 20. p. 261 Cap. 21. p. 259 Cap. 22. p. 260 Cap. 25. p. 287 302 Cap. 29. p. 229 Westm 1. cap. 1 2 5. p. 231 c. Cap. 3. p. 289 302 Cap. 4. p. 281 Cap. 6. p. 263 Cap. 9. p. 289 Cap. 10. p. 286 Cap. 11. p. 270 Cap. 12. p. 289 Cap. 13. p 288 Cap. 14. p. 275 Cap. 15. p. 290 Cap. 16. p. 260 Cap. 20. p. 292 Cap. 22. p. 256 Cap. 23. p. 286 Cap. 32. p. 266 Cap. 33. p. 275 Cap. 34. p. 292 Cap. 36. p. 285 Cap. 51 p. 261 Bigami p. 247 c. Glocest cap. 1. p. 262 Cap. 5. p. 255 Cap. 6. p. 261 Cap. 8. p. 285 302 Cap. 9. p. 270 De Religiosis p. 245 Westm 2. cap. 13. p. 275 Cap. 16. p. 256 Cap. 19. p. 232 Cap. 24. p. 285 Cap. 26. p. 292 Cap. 29. p. 270 285 Cap. 30. p. 262 Cap. 33. p. 245 Cap. 34. p. 288 Winton p. 302 c. Circumspecte agatis p. 233 c. Quia emptores p. 274 De Judaismo p. 273 Quo warranto p. 244 De vasto p. 255 De consultatione habenda p. 238 De wardis p. 254 Artic. super Cart. cap. 2. p. 266 Cap 3. p. 285 Cap. 9. p. 286 Cap. 12. p. 260 Cap. 13 14. p. 276 Cap. 15. p. 285 Cap. 18. p. 255 Conjunct feoffat p. 262 Amortizand terris p. 246 Asportat bonis Relig. p. 244 De militibus p. 294 Artic. cleri p. 219 238 Vicecomit p. 219 276 286 De priscis bonis cleri p. 219 244 Prerog reg p. 220 Cap. 3 13. p. 254 Cap. 7. p. 274 Cap. 9. p. 280 Cap. 11. p. 281 Cap. 14 16. p. 268 Subdeacons p. 28 Suite of Court p. 202 Vide Mannor Synods Briton p. 11 Saxon p. 37 Disadvantageous to Prelacy p. 45 Norman p. 127 Without the Laity p. 187 Power p. 248 c. T TAile Saxon law p. 105 Taxes p. 278 Vide Free men Tenures vide Mannor Normans changed them not p. 161 Tenures by severall Lords priority p. 200 By Escheats p 273 Terme Saxon p. 110 Testament Saxon p. 108 After p. 202 c. Thefts cognisance p. 193 195 Tithes originall p. 30 Cognisance p. 43 Normans p. 139 778 238 240 Torne Saxon p. 67 275 Torture amongst the Saxons p. 88 Townships and their Courts Saxon p. 81 Normans p. 134 Treason punished by Saxons p. 98 After p. 194 Trover of goods p. 143 Trotheplight p. 179 V VAcancies of Churches p. 179 c. 185 Vacation vide Terme View of piedges Saxon p. 78 Norman p. 134 After p. 263 275 Villains Saxon p. 56 Normans p. 137 Violence done to Clerks p. 235 Use in deeds of conveyance Saxon p. 107 Usury p. 273 W WArdship p. 148 202 254 270 Warranty Saxon p. 107 Weares p. 268 Wera wergilda Saxon p. 99 Weights and measures Saxons p. 28 Normans p. 142 269 Widdows vide Socage and Knightservice William the first p. 113 c. William Rufus p. 118 Wife Saxon p. 98 Will vide Testament Witnesses deeds Saxon p. 108 Witchery p. 40 Punished by Saxons p. 97 Wita Saxon p. 99 Worship Saxon cognisance p. 39 Wrecks p. 281 FINIS
Saxons were not so zealous of their new Religion as to make a new Nationall quarrell between the Britons and themselves but left the game to be played out by Austen who finding by experience that it would not prove the worke of one man left it to successors to worke out by degrees in efflux of time And thus Austen neither good servant to the Servant of Servants nor good Monke retires to settle his Saxon province and to present or rather to prostitute it to the lusts of that red whore which was the generall piety of those ignorant times CHAP. VI. Of the imbodying of Prelacy into the government of this Kingdome I Cannot think that the platforme of the mystery of iniquity when boyled to the hight was ever foreseen or in the aime of the wicked spirits on earth or those in hell yet were they all instruments of this monstrous birth filled with subtilty and mischiefe guided principally by occasion and over-ruled by the Justice and Wisdome of God to make a yoke for Monarchs and a scourge to the world for their refusall of the government of Christ untill this monster came to perfection and wherein themselves were feloes de se and wrought their owne mischiefe for Austen comming in as a third proprietor with King and people and having gathered the materials of a Church reason told them that a forme of government must be setled in that Church the Saxons had no principles of their own Tacit. mor. Serm. for they had no learning and to goe to the Britons for a patterne might be thought ignoble and where the choice is small it s soone made Rome held now the most part of the Churches of Europe at Schoole the Saxons soon resolve Rome that had been their mother shall be also their father and thus at one draught they dranke up a potion of the whole Hierarchy of Rome from the Pope to the apparator with a quicquid imponitur imponetur which was of such lasting efficacy that it ceaseth not to worke even to this day although it was slow in the first provocation For the Saxons had a Common-weale founded in the liberty of the people and it was a master-piece for Austen and the Clergy so to worke as to remaine members of this Commonweale and yet retaine their hearts for Rome which was now grown almost to the pitch of that Antichrist for reason must needs tell them that the Saxon principles would not suffer them to be ad omnia for Rome nor the Roman Canon allow them to be wholy Saxon and they saw plainly that the times were too tender to endure them to be declarative on either part and therefore they chose a third way which was to preserve the municipall Lawes in moderation towards the Canon and to that end to endeavour such a temper upon the State as must admit them to be in repute such as without whom the Common-weale could not well subsist no more then a body without a soule and that few occasions should befall but at least in ordine remoto must reflect upon both and then all reason will be speake them to joyne in the legislative power and government of this Kingdome but especially as Bishops who are now Magnae spes altera Romae and the very top-flowers of wisdome and learning And unto this temper the Saxons were sufficiently prepared and inclinable for it was no new thing for them to admit their heathenish Priests into their generall meetings and allow them much power therein and then it s but the person changed and they must doe as much for their Bishops now they are become Christian especially themselves being all for the field and overgrown with a generall ignorance the common disease of those times Kings were in no beteer condition it was hard for them to be baptised and not to be baptised into Rome and commonly under such a Covenant as though many might repent of yet none durst amend for when as the Pope is Lord of the consciences of the People the Kings power may sometimes outface but can never govern the Saxon Kings were therefore faine to make a vertue of necessity and advance Bishops to be common favorites both of Rome and themselves to maintaine good correspondency between both Swords and to countenance the power of the temporall Magistrate in cases of dispute else he might oftentimes command and yet goe without Thus enter the Prelates upon affaires of Kings and Kingdomes and became lovers of Lordships and troublers of States and if in any thing they served their Countrey they served Rome much more their merchandise was made of the policies and Councels of all Kingdomes and States and such returnes proceeded as were still subservient to the Roman interest and they so intoxicated the domestique counsels in such manner as they generally staggered and many times came short of home Neverthelesse at the first this was but rare clancular and covered with much modesty for excepting such choice spirits as Austen had Roman Prelacy in these yonger times was but Velvet-headed and endured not much greatnesse or bigge titles but spake like a Lambe Ego non verbis quaero prosperari sed moribus said this Gregory to the Alexandrian Bishop who had put upon him the title of universall Bishop or Pope Greg. Epist ad Eulog and whereas he had in a way of Courtship called Gregories counsels commands he startles at it quod verbum jussionis saith he peto a meo auditu removere quia scio quis sum qui estis Thus Prelacy first conveyed it selfe into opinion afterwards into conscience and ambition comming in the reare made it become both Bishop and Lord. CHAP. VII Of Metropolitans in the Saxons time BEing in pursuit of the government of this Kingdome in elder times and therein first of the persons with their relation then of their worke and lastly of their Courts and Lawes and now in hand with the Ecclesiasticall persons I shall descend to their particular ranks or degrees and shall shew what they were in their originall and what overplus they had by Lawes And first concerning the Metropolitan In his originall his Office was to visite the Bishops admonish and exhort them and in full Synod to correct such disorders as the Bishop could not reforme and in all things to proceed according to the prescript Canon Concil Brit. p. 258. Thus witnesseth Boniface an Archbishop to an Archbishop of an Archbishop not according to the practise of the times wherein it was written but according to the ancient rule For long before Boniface his time Archbishops were swolne beyond the girt of the Canon An. 745. and before that England was honoured with that ranke of men Metropolitans were become Metronomians and above all rule but that of their owne will and through common custome had no regard to any other so as if England will have them it must be content to have them with their faults But the truth is the
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
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